United States v. DeChristopher ( 2012 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 14, 2012
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
___________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4151
TIM DeCHRISTOPHER,
Defendant-Appellant.
___________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH
(D.C. No. 2:09-CR-00183-DB-1)
____________________________________
Ronald James Yengich, Yengich, Rich & Xaiz, (Elizabeth Hunt, Elizabeth Hunt LLC,
and Patrick A. Shea, Patrick A. Shea P.C., with him on the brief), Salt Lake City, Utah,
for Defendant-Appellant.
Dave Backman, Assistant United States Attorney (David B. Barlow, United States
Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
____________________________________
Before BRISCOE, Chief Circuit Judge, BALDOCK, and HOLMES, Circuit
Judges.
____________________________________
BALDOCK, Circuit Judge.
____________________________________
Defendant Tim DeChristopher entered a Bureau of Land Management (BLM) oil
and gas lease auction in Salt Lake City, Utah, by representing he was a bidder. His
purpose was to disrupt the auction and call attention to the potential environmental harms
of drilling on the leases. He proceeded to drive up the auction prices and ultimately won
almost $1.8 million in bids, for which he was unable to pay. A jury convicted Defendant
of interfering with the provisions of Chapter 3A of the Federal Onshore Oil and Gas
Leasing Reform Act, in violation of 30 U.S.C. § 195(a)(1), and making a false statement
or representation in violation of 18 U.S.C. § 1001.1 He now appeals, raising eight
separate issues related to his conviction. We have jurisdiction pursuant to 28 U.S.C. §
1291. We affirm.
I.
Federal law requires BLM offices in each state with eligible lands to auction off
oil and gas leases on a quarterly basis. 30 U.S.C. § 226(b)(1)(A). At these auctions, the
minimum bid is two dollars per acre, 43 C.F.R. § 3120.1-2(c), but the amount of the
winning bid can vary significantly. In addition to the final auction price, successful
bidders must pay an annual rental of $1.50 per acre per year for the first five years of the
lease ($2 per acre per year thereafter) and pay a royalty of 12.5 percent on the oil or gas
produced from the lease. 30 U.S.C. § 226(b)(2)(A)(i), (d).
In December 2008, the BLM office in Salt Lake City, Utah, held an auction for
leases on 131 parcels of BLM-managed land located in Utah. The decision to allow
1
The first of these statutes makes it “unlawful for any person . . . to organize or
participate in any scheme, arrangement, plan, or agreement to circumvent or defeat the
provisions of this chapter [Title 30, Chapter 3A] or its implementing regulations.” 30
U.S.C. § 195(a)(1). The second statute subjects to a fine or imprisonment “whoever, in
any matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully . . . makes any materially
false, fictitious, or fraudulent statement or representation.” 18 U.S.C. § 1001(a).
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drilling on these parcels sparked significant controversy, and by the date of the auction
individuals had filed administrative challenges to all 131 parcels. Additionally, two days
before the auction, environmental groups filed suit in federal court seeking a temporary
restraining order to prevent leases from issuing on seventy-seven of the parcels. See S.
Utah Wilderness Alliance v. Allred, 2009 WL 765882 (D.D.C. January 17, 2009)
(unpublished). Despite these challenges, the auction went forward as planned. On the
day of the auction, demonstrators gathered outside the BLM office in protest.
Defendant, a student at the University of Utah, arrived at the BLM office
intending to participate in the protest. He walked from one end of the protest to the other,
and then entered the BLM office. He soon decided protesting would not have much of an
impact and wanted to “take stronger action to really waive [sic] that red flag and see what
was going on in there.” Appellant’s App., vol. II at 802. Defendant therefore entered the
building, where a BLM employee asked him if he was a bidder, observer, or member of
the media. Defendant said he was a bidder. The employee told Defendant to complete
and sign a bidder registration form. Defendant did so, sitting at the registration table for
approximately two or three minutes. By signing the form, Defendant “certif[ied] that any
bid submitted by the undersigned . . . is a good faith intention . . . to acquire an oil and
gas lease on the offered lands.” Id. at 406. The form also notified him, “It is a crime
under 18 U.S.C. 1001 and 43 U.S.C. 1212 for any person to knowingly and willfully
make any false, fictitious or fraudulent statements or representations as to any matter
within its [sic] jurisdiction.” Id. The BLM employee then gave Defendant a bidder
paddle, and Defendant proceeded to the auction room.
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About twenty minutes into the auction, Defendant began bidding on parcels. After
driving up prices on more than ten parcels without winning any bids, Defendant finally
won an auction for approximately $500. Later he won another auction for approximately
$25,000. After winning this bid, Defendant consistently bid until he won each of the next
twelve auctions. BLM officials suspended the auction because of Defendant’s actions,
which had caused some legitimate bidders to leave the auction. Defendant’s winning
bids on the fourteen parcels of land totaled $1,797,852.25, and BLM policy required him
to tender a down payment of $81,238 by 4:30 p.m. on the day of the auction. Defendant
told a BLM special agent that he was unable to pay that amount. Defendant contacted a
fundraiser later that day in an to attempt to raise the money, but he never completed the
payment.2
Based on this conduct, a grand jury issued a two-count indictment against
Defendant. Count 1 charged him with organizing or participating in a scheme,
arrangement, plan, or agreement to circumvent or defeat the provisions of the Federal
Onshore Oil and Gas Leasing Reform Act in violation of 30 U.S.C. § 195(a)(1). Count 2
charged him with making a false statement in violation of 18 U.S.C. § 1001. Prior to
trial, the Government moved in limine to prevent Defendant from presenting a necessity
defense. Defendant responded by filing a written proffer of the evidence he would
introduce in support of a necessity defense. Defendant attached voluminous
documentation of the BLM’s purported violations of various environmental laws and
2
Defendant asserts on appeal that he tried to make this payment but the BLM
refused to accept it because the entire auction had been cancelled. This factual dispute is
not relevant to the issues on appeal.
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regulations as well as evidence about environmental issues such as global warming. The
district court granted the motion in limine, concluding “the evidence is insufficient as a
matter of law to support the necessity defense.” United States v. DeChristopher, 2009
WL 3837208 at *5 (D. Utah, Nov. 16, 2009) (unpublished). Defendant then filed a
motion for discovery regarding selective prosecution, arguing the Government treated
him differently than other persons who failed to pay for their oil and gas leases.
Defendant attached tables showing other successful bidders who did not pay for the
leases they won. The district court denied this motion, concluding Defendant had
produced no evidence of discriminatory effect. The court found no evidence showing the
other persons committed similar offenses. The court also noted that Defendant won
significantly more parcels and acres than the other listed bidders. The court did not reach
whether Defendant had produced adequate evidence of discriminatory intent.
At trial, the Government presented the following evidence. First, the BLM
employee who tended the auction registration table testified as follows: “He came in. He
came up to the table. I said are you a bidder, an observer or a member of the media? He
told me he was a bidder.” Appellant’s App., vol. II at 499. She also testified to watching
Defendant read and fill out the bidder registration form. Second, the BLM employee who
conducted the auction testified as to the manner in which the auction was conducted.
Third, a BLM law enforcement ranger testified that his suspicions were aroused when he
saw Defendant enter the auction because Defendant’s age and clothing did not fit the
description of most bidders. The ranger called BLM Special Agent Dan Love’s attention
to Defendant as someone to be watched.
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Fourth, Special Agent Love testified regarding his observations of and interactions
with Defendant on the day of the auction. Agent Love testified that once in the auction
room, Defendant “did not seem overly concerned as to what was taking place at the
auction” and “increasingly was looking . . . to the perimeter of the room, to the back of
the room.” Appellant’s App., vol. II at 552. At that point, Agent Love grew concerned
that Defendant might cause a disturbance, so he requested additional uniformed officers
to enter the room. Sometime after the uniformed officers entered the room, Agent Love
observed Defendant begin bidding. He testified that Defendant would only start bidding
on a parcel once he saw bidders start dropping out, would bid up the price with the last
remaining bidder, and would then drop out when the other bidder hesitated.
Agent Love testified that he made contact with Defendant during a recess in the
auction, once Defendant had won fourteen bids. Agent Love verified that Defendant was
the person listed on his bidder registration form and asked if Defendant could pay for the
leases. Defendant then “wanted to know how much trouble he was in” and said he was
“prepared to deal with the consequences.” Id. at 572. Defendant said he was not able to
pay the amount he bid on the leases. Defendant told Agent Love that he had “posed” as a
bidder because he believed it was the only way into the sale. He said “his initial plan was
to create a disruption or a disturbance,” but that upon seeing additional law enforcement
in the room, “he realized that making a disruption or speech would not have the kind of
impact that he was looking for.” Id. at 578. Defendant also said he made the decision to
bid fraudulently on the parcels once he was in the auction. He told Agent Love that after
he won the second bid, he realized he had no way to pay for the leases, so he decided to
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“make a stand” and keep bidding. Id. at 577.
Fifth, another BLM employee who assisted with the auction testified that the other
bidders were very upset by Defendant’s actions. She also testified that the BLM did not
immediately restart the auction after Defendant left the room because “some bidders may
have already left the sale and the confidentiality is gone,” which hurt the competitiveness
of the auction. Appellant’s App., vol. II at 623–24.
Finally, the Government called Kent Hoffman, the BLM’s Utah deputy state
director for lands and minerals, who testified regarding the work involved in preparing
for the lease auction. He testified:
A lease auction typically begins five or six months before the actual
auction, where the industry nominates parcels and we receive the
expression of interest, and then those expressions . . . are screened by my
staff and then sent to the field office where there are environmental reviews
and compliance with things like the National Historic Preservation Act, the
Endangered Species Act, several other things are completed, and then prior
to the auction the environmental documents are signed.
Id. at 651–52. After Mr. Hoffman’s testimony, Defendant again sought to introduce
evidence the BLM violated environmental laws by offering the leases for oil and gas
drilling. Defendant argued Hoffman’s testimony opened the door to such evidence. The
district court excluded the evidence, saying it “would confuse the jury and it would be
misleading. It would be in an area that is so lacking in relevance, if it is relevant, that is
has the potential for being improper under Rule 403 of the Rules of Evidence.”
Appellant’s App., vol. II at 662. After Defendant made a written proffer of the evidence
he sought to present, the court again said it was unwilling to “open[] this case into a vast
exploration of oil and gas lease policy by the United States government” and the related
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challenges to the auction. Id. at 685.
The defense showed the jury a 22-minute video of the auction, which frequently
panned toward Defendant and showed him bidding on a number of leases. Defendant
himself also testified. On cross-examination, the Government questioned him regarding
statements he made to the public press and read into evidence some of Defendant’s public
statements. In one interview, he said, “I was there to stop that auction. Even though I
didn’t have a specific plan I felt that I could be powerful enough to stop it. And I think
that mindset is what allowed me to stop it.” Id. at 827. In another interview, he said, “I
just decided I wanted to go inside to cause a bigger disruption.” Id. at 829. In another,
he said, “I had signed a piece of paper downstairs saying it was a federal offense to bid
without intent to pay, but I decided I could live with those consequences, and I couldn’t
turn my back on this chance to make an impact.” Id. at 836. Defendant admitted on the
stand that he “posed” as a bidder and “represented” to the BLM employee at the
registration table that he was a bidder. Id. at 831. He said he did this because he thought
it was the only way to get into the auction, and he said the employee only asked if he was
a “bidder,” not whether he was a “bidder, observer, or member of the media.” He also
admitted that after he won his second bid he “was attempting to win the leases,” even
though he knew he could not afford them. Id. at 841.
Defendant moved for judgment of acquittal under Federal Rule of Criminal
Procedure 29 at both the close of the Government’s case and the close of all the evidence.
The district court denied the motion each time. The jury then convicted Defendant on
both counts. The district court sentenced Defendant to twenty-four months’
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imprisonment and three years’ supervised release.3
II.
Defendant appealed, raising a host of issues, some of which he did not raise
below. Although he only lists three issues, we can discern eight distinct arguments on
appeal. They are as follows: (1) the evidence was insufficient to convict Defendant on
Count 1 because the statute requires multiple parties, (2) the evidence was insufficient to
convict Defendant on Count 1 because the statute requires awareness of specific
provisions of the Leasing Reform Act, (3) the evidence of Defendant’s intent to bid in
bad faith was insufficient to sustain Count 2, (4) the jury instructions constructively
amended the indictment, (5) the district court improperly limited inquiry into the legality
of the auction, (6) the district court improperly denied Defendant the opportunity to
present a necessity defense, (7) the Government selectively prosecuted Defendant in
violation of the Equal Protection Clause, and (8) the district court sentenced Defendant to
punish him for exercising his First Amendment rights. Because the standard of review
varies, we will discuss the appropriate standard under each issue.
A.
We first address Defendant’s argument that the evidence was insufficient to
convict him on Count 1 because it did not demonstrate group activity. He argues 30
U.S.C. § 195(a)(1) requires more than one person, similar to a conspiracy charge. When
3
The district court’s judgment does not indicate whether the sentence was twenty-
four months on each count, to be served concurrently, or twelve months on each count, to
be served consecutively. At oral argument, defense counsel said he understood the
sentence to be twenty-four months on each count.
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reviewing the sufficiency of the evidence, we ask whether “a reasonable jury could find
the defendant guilty beyond a reasonable doubt, given the direct and circumstantial
evidence, along with reasonable inferences therefrom, taken in a light most favorable to
the government.” United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) (quoting
United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997)). Defendant did not raise
this specific argument in his Rule 29 motion, meaning we review it only for plain error.4
United States v. Schene, 543 F.3d 627, 636 (10th Cir. 2008). That standard requires
Defendant to demonstrate (1) error that is (2) plain, (3) affects substantial rights, and (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Flonnory, 630 F.3d 1280, 1288 (10th Cir. 2011). Defendant cannot meet
this burden.
“An error is plain if it is clear or obvious under current, well-settled law. In
4
Defendant’s sufficiency argument is somewhat baffling at first glance because
the jury instructions did not require group activity and Defendant never objected to the
jury instructions for failing to require group activity. That is, Defendant is arguing the
Government failed to prove a required element, but that element was not part of the jury
instructions. Despite this awkward litigation strategy, however, Defendant is probably
entitled to plain error review of his sufficiency claim. Although the question is not
settled in our circuit, we have said in dicta that the measure for a sufficiency challenge is,
with one limited exception, whether a properly instructed jury could convict, rather than
whether the jury as actually instructed could convict. United States v. Nacchio, 519 F.3d
1140, 1157 (10th Cir. 2008), vacated in part on other grounds 555 F.3d 1234, 1236 (10th
Cir. 2009) (en banc). We said in Nacchio, “[W]hen asking what facts the jury had to find
in order to convict, we look to the elements of the crime as defined by law, except that if
the government did not object to jury instructions containing additional requirements, it is
required to prove those too.” Id. (emphasis added). If it is proper to look to the statute,
rather than the jury instructions, in weighing the sufficiency of the evidence, Defendant
may challenge the sufficiency of the evidence despite his failure to challenge the jury
instructions. We need not definitively decide the issue, because Defendant cannot prevail
on his sufficiency claim under plain error review.
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general, for an error to be contrary to well-settled law, either the Supreme Court or this
court must have addressed the issue.” United States v. Thornburgh, 645 F.3d 1197, 1208
(10th Cir. 2011) (citation and internal quotation marks omitted). Defendant cannot
marshal any case law, even from other circuits, that supports his position. The lack of
case law is unsurprising, given that to the parties’ knowledge this is the first time the
Government has prosecuted a person under 30 U.S.C. § 195(a). Nor can Defendant point
us to cases interpreting similar statutes because Congress has not employed similar
language elsewhere in the United States Code. Defendant argues the “purpose” of
Leasing Reform Act supports his interpretation, but cites only articles, rather than
legislative history. Finally, Defendant points us to two cases, neither of which have any
application here. The first case, H.J. Inc. v. Nw. Bell Tele. Co., 492 U.S. 229, 244
(1989), discussed the term “organized crime,” and rejected the argument that the federal
RICO statute was limited to “organized crime in the traditional sense.” The second case,
United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir. 1995), interpreted the
Sentencing Guidelines’ use of the word “organizer.” The court in Tejada-Beltran, said an
organizer is “at bottom a person who forms diverse elements into a whole consisting of
interdependent, coordinated parts, geared for concerted action.” Id. This definition does
not rule out individual activity, so it provides Defendant little help.
Nor does the statute’s language unambiguously require group activity. See United
States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (concluding that even in “the
absence of circuit precedent” a district court’s error was plain when a guideline “clearly
and obviously” was limited to a single interpretation). Section 195(a)(1) makes it
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unlawful for any person “to organize or participate in any scheme, arrangement, plan, or
agreement to circumvent or defeat the provisions of this chapter or its implementing
regulations . . . .” The statute first requires the defendant either to “organize” or
“participate.” Webster’s Third New International Dictionary defines “organize” as “to
unify into a coordinated functioning whole: put in readiness for coherent or cooperative
action,” “to arrange by systematic planning and coordination of individual effort,” or “to
put in a state of order.” Webster’s Third New Int’l Dictionary 1590 (1981). It defines
“participate” as “to take part in something (as an enterprise or activity) usu[ally] in
common with others.” Id. at 1646. Although participation is usually in common with
others, it need not necessarily involve other persons. And a person can “organize”
something entirely on one’s own. So these first two words do not require group activity.
Next, the statute requires the organization or participation to involve a “scheme,
arrangement, plan, or agreement.” An “agreement,” of course, requires two or more
people. But the other three terms do not.5 Black’s Law Dictionary defines “scheme” as
“[a]n artful plot or plan, usu[ally] to deceive others.” Black’s Law Dictionary 1462 (9th
ed.). Webster’s defines “arrangement” as “a structure or combination of things arranged
in a particular way for a specific purpose” or “a mutual agreement or understanding (as
between persons or nations).” Webster’s Third New Int’l Dictionary 120 (1981).
Finally, Webster’s defines “plan” as “a method of achieving something: a way of
5
Defendant essentially concedes this point when he notes that Congress could
have imposed individual liability by making it a crime “for a person to scheme, arrange,
or plan to circumvent or defeat” the provisions of the Leasing Reform Act. Appellant’s
Br. at 19 n.14. He hangs his hat on the addition of the words “organize” and “participate
in.”
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carrying out a design.” Id. at 1729. To convict Defendant under this statute, the jury
needed only to conclude that Defendant “arrange[d] by systematic planning” a scheme,
plot, or plan to interfere with the provisions of Title 30, Chapter 3A. The ordinary
meaning of these words does not require more than one person. In short, we cannot
conclude under plain error review that the statute requires group activity. Thus, the
evidence was sufficient to convict Defendant on Count 1.
B.
Defendant next argues the evidence was insufficient because the Government
presented no evidence that Defendant “was aware of any of the provisions of chapter 3A
of Title 30 or the implementing regulations.” Appellant’s Br. at 20. Although subsection
195(a)(1) does not include the word “knowingly,” the subsection that specifies the
penalty for a violation of 195(a) applies only to persons who “knowingly violate[] the
provisions of subsection (a).” § 195(b). Thus, a conviction under the statute requires a
knowing violation. Defendant would read the word “knowing” to require that Defendant
“sought to circumvent or defeat” at least two specific provisions of Title 30, chapter 3A.
Jury Instruction 13 instructed the jury that “‘[k]nowingly’ means that the action was done
voluntarily and intentionally and not because of mistake or accident.” Appellant’s App.,
vol. I at 371. Defendant objected to this instruction in the district court, and argued in his
Rule 29 motion that the evidence was insufficient without proof that he knew of specific
provisions of the statute. Id., vol. II at 769, 872–73. We therefore review the sufficiency
of the evidence on this point de novo. Sturm, 672 F.3d at 896.
We cannot accept Defendant’s argument that the statute required him to know the
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specific statutory or regulatory provisions he was violating. In Liparota v. United States,
471 U.S. 419, 420 (1985), the Government prosecuted the defendant under a statute
providing that “whoever knowingly uses, transfers, acquires, alters, or possesses coupons
or authorization cards in any manner not authorized by this chapter or the regulations,” 7
U.S.C. § 2024(b)(1), was subject to a fine or imprisonment. The Government in Liparota
argued that the defendant need not know his actions were illegal, but need only know the
facts that constituted the crime. Liparota, 471 U.S. at 423. The Supreme Court rejected
this view, and held the Government must prove “that the defendant knew that his
acquisition or possession of food stamps was in a manner unauthorized by statute or
regulations.” Id. at 433. Nevertheless, the Court held that “the Government need not
show that he had knowledge of specific regulations governing food stamp acquisition or
possession.” Id. at 434 (emphasis added). Similarly, we have held that a statute
punishing a person who “knowingly enters into a marriage for the purpose of evading any
provision of the immigration laws,” 8 U.S.C. § 1325(c), does not require the Government
“to prove the defendant knew of the specific immigration statute allegedly violated.”
United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005) (emphasis added).
Here, the Government presented the jury with ample evidence that Defendant
knew his actions would “circumvent or defeat” the statutes and regulations governing oil
and gas leases. This evidence included Defendant’s statements that he was “there to stop
that auction,” that he wanted to cause a disruption, and that he intended to win leases for
which he could not pay. The jury also heard that Defendant asked Agent Love how much
trouble he was in and said he was prepared to deal with the consequences of his actions.
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A reasonable jury could conclude from these facts that Defendant knew his actions would
interfere with the statutory and regulatory provisions relating to oil and gas leases.
C.
Defendant next argues insufficient evidence of his intent to bid in bad faith
supported his conviction on Count 2. Because Defendant made this argument in his Rule
29 motion, we review it de novo. Sturm, 672 F.3d at 896. The false statement statute
applies to a person who “in any matter within the jurisdiction of the executive . . . branch
of Government of the United States, knowingly and willfully . . . makes any materially
false, fictitious, or fraudulent statement or representation.” 18 U.S.C. § 1001(a).
The jury instructions informed the jury that, to convict Defendant on Count 2, it
must find “First, the defendant made a false statement or representation to the
government when he completed and signed a ‘Bidder Registration Form,’ and certified
that he had a good faith intention to acquire an oil and gas lease on lands offered for
auction by the United States.”6 Appellant’s App., vol. I at 372. Defendant argues the
Government presented no evidence indicating he actually intended to bid on the leases
when he signed the form. He says he only decided to bid about twenty minutes into the
auction.7 Thus, the argument goes, he did not knowingly make a false statement when he
6
This instruction does not reflect the facts entirely accurately because the bidder
registration form did not certify the intent to bid in good faith. It only certified that “any
bid submitted” would be in good faith. Appellant’s App., vol. I at 406. Defendant has
not, however, challenged the instruction on this basis.
7
Defendant’s representation to the BLM employee that he was a “bidder” was, by
Defendant’s own admission, a false representation. The jury instructions, however, only
instructed the jury regarding Defendant’s action in signing the bidder registration form.
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signed the form saying “any bid” he made would be a good faith bid because at that time
he did not intend to bid at all. Appellant’s App., vol. I at 406.
A reasonable jury could decline to credit Defendant’s statements and find he
intended to bid in bad faith at the time he signed the form. Defendant’s testimony, and
his story to Agent Love, was that he posed as a bidder because he thought it was the only
way to get in and that he intended at first only to cause a disturbance in the auction. He
testified that the BLM employee at the registration table only asked him if he was a
“bidder.” The BLM employee, however, specifically recalled asking Defendant whether
he was a “bidder, observer, or member of the media.” Appellant’s App., vol. I at 178.
Based on this testimony, a reasonable jury could conclude Defendant posed as a bidder
not simply to gain entrance to the auction, which he could have done as an observer, but
in order to drive up the auction prices. The jury also heard evidence that Defendant
entered the auction in order to “take stronger action,” to “stop that auction,” and to “cause
a bigger disruption.” Id., vol. II at 802, 827, 829. Furthermore, a jury could conclude
Defendant’s very act of filling out the bidder registration form and acquiring a bidder’s
paddle was consistent with an intent to bid in the auction. That being so, the jury could
also conclude Defendant intended to bid in bad faith because he testified he never
intended to actually drill or develop the leases. Thus, the evidence was sufficient to
sustain Defendant’s conviction on Count 2.
D.
So, as instructed, the jury could not convict Defendant on the basis of his false statement
that he was a bidder.
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Defendant next argues the jury instructions constructively amended the indictment
in two ways. First, he argues they constructively amended Count 1 by omitting the
indictment’s allegations (1) that Defendant “represented himself as a bona fide bidder
when in fact he was not,” (2) that Defendant completed a bidder registration form
certifying his good faith intention to acquire an oil and gas lease, and (3) that Defendant
“bid on and purchased oil and gas leases that he had neither the intention nor the means
to acquire.” Appellant’s App., vol. I at 33. Second, he argues the instructions
constructively amended Count 2 by allowing conviction for a “false” statement even
though the indictment charged a “false and fraudulent” statement. We review de novo
whether the jury instructions constructively amended the indictment. United States v.
Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010).
A constructive amendment to an indictment occurs “when the evidence presented
at trial, together with the jury instructions, so alters the indictment as to charge a different
offense from that found by the grand jury.” United States v. Farr, 536 F.3d 1174, 1180
(10th Cir. 2008) (internal quotation marks and alterations omitted). “To constitute a
constructive amendment, the district court proceedings must modify an essential element
of the offense or raise the possibility the defendant was convicted of an offense other than
that charged in the indictment.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th
Cir. 2002). Here, the three allegations omitted from Count 1 were not elements essential
to the offense. Nor did the omission of these allegations result in Defendant being
convicted of an offense other than that described in 30 U.S.C. § 195(a)(1). So
Defendant’s first argument falls flat.
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Defendant’s second argument is also a non-starter. The basic issue is whether the
Government could charge a “false and fraudulent” statement, yet only prove a false or
fraudulent statement. “It is hornbook law that a crime denounced in the statute
disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in
the disjunctive.” United States v. Gunter, 546 F.2d 861, 868–69 (10th Cir. 1976). See
also United States v. Powell, 226 F.3d 1181, 1192 n.4 (10th Cir. 2000). So the jury
instructions did not amend the indictment.
E.
Next, Defendant asserts the district court abused its discretion by limiting his
presentation of evidence regarding the alleged illegality of the BLM auction. Defendant
sought both to cross-examine Mr. Hoffman regarding the BLM’s compliance with federal
laws and to introduce additional evidence, including evidence that the BLM (1) failed to
provide the standard three-month notice period for the leases, (2) inadequately conducted
the “normal studies” as to the environmental and archeological impact of the leases, (3)
failed to comply with the National Environmental Policy Act, the National Historic
Preservation Act, and the Federal Land Policy and Management Act, and (4) disregarded
concerns expressed by the National Park Service and the Environmental Protection
Agency. Appellant’s App., vol. I at 287–89. Defendant argued in the district court that
the evidence was relevant to his defense on Count 1 and that the Confrontation Clause
gave him a right to meaningfully cross-examine Mr. Hoffman. The district court
excluded the evidence. We ordinarily review evidentiary rulings for abuse of discretion,
but to the extent Defendant asserts the exclusion of evidence violated his constitutional
- 18 -
rights, we review the ruling de novo. United States v. Markey, 393 F.3d 1132, 1135
(10th Cir. 2004).
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment
or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present a
complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)) (citations omitted). Thus, “the Confrontation
Clause guarantees an opportunity for effective cross-examination,” but “not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). “[T]rial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on
cross-examination based on concerns about . . . prejudice, confusion of the issues, . . . or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). “[W]e will reverse a district court’s decision excluding
evidence if, but only if, the proffered evidence is both relevant and material . . . .” United
States v. Hernandez-Hernandez, 519 F.3d 1236, 1238–39 (10th Cir. 2008).
Here, the district court correctly excluded the evidence as irrelevant. Whether the
BLM complied with all applicable environmental regulations in conducting the auction
has nothing to do with whether Defendant organized a scheme, arrangement, or plan to
circumvent or defeat the provisions of the Onshore Leasing Reform Act relating to oil
and gas auctions. Defendant was essentially trying to present a defense akin to the
equitable defenses of in pari delicto or unclean hands. The statute does not allow such a
- 19 -
defense. Nor do the BLM’s allegedly illegal actions negate any element of the offense.
Thus, any evidence of the BLM’s noncompliance with federal law or its environmental
failures was irrelevant to Defendant’s guilt or innocence, and the district court properly
excluded the evidence.
F.
Next, Defendant argues the district court erred in preventing him from presenting
a necessity defense. “A criminal defendant is entitled to an instruction on his theory of
defense provided that theory is supported by some evidence and the law.” United States
v. Haney, 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc). The Supreme Court has said
it is an “open question whether federal courts ever have authority to recognize a necessity
defense not provided by statute.” United States v. Oakland Cannabis Buyers’ Co-op.,
532 U.S. 483, 490 (2001). Nevertheless, our circuit continues to assume such a defense
exists. United States v. Patton, 451 F.3d 615, 638 (10th Cir. 2006). To succeed on a
necessity defense, a defendant must show “(1) there is no legal alternative to violating the
law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship exists
between defendant’s action and the avoidance of harm.” United States v. Baker, 508
F.3d 1321, 1325 (10th Cir. 2007) (internal alterations and ellipsis omitted). We review a
district court’s refusal to instruct on a specific defense, like its decision to exclude
evidence, for abuse of discretion. Id.Here, the district court did not abuse its discretion in concluding the evidence was
insufficient to support a necessity defense. We need go no further than the first prong—
the absence of a legal alternative. The harm Defendant intended to prevent was the
- 20 -
environmental harm that would stem from the sale and delivery of the leases. One
obvious legal alternative for preventing this harm was to file or join in a lawsuit to enjoin
the issuance of the leases. In fact, a number of environmental groups had filed such a
lawsuit two days before the sale, once they realized nothing else would halt the auction.
Defendant responds that a statute required the leases to issue within 60 days following
full payment by the successful bidders. 30 U.S.C. § 226(b)(1)(A). True enough, but a
court could (and did) prevent the BLM from issuing the leases by issuing a temporary
restraining order or injunction. See Allred, 2009 WL 765882. Because Defendant had
this legal (and more effective) means of preventing the leases from issuing, he was not
entitled to present a necessity defense to the jury.
G.
Defendant’s next argument is that the district court erred in denying his motion for
discovery on the issue of selective prosecution. “We review de novo the district court’s
grant or denial of a defendant’s selective-prosecution discovery motion.” United States
v. Deberry, 430 F.3d 1294, 1298 (10th Cir. 2005). A criminal defendant claiming
selective prosecution must show “that the federal prosecutorial policy had a
discriminatory effect and that it was motivated by a discriminatory purpose.” United
States v. Armstrong, 517 U.S. 456, 465 (1996) (internal quotation marks omitted). In
order to obtain discovery concerning selective prosecution, Defendant must satisfy the
“rigorous standard” of making “a credible showing” of both discriminatory effect and
discriminatory intent. Id. at 468, 470.
Defendant focuses most of his argument on the newly-asserted theory that the
- 21 -
Government prosecuted him for the exercise of his free speech rights. Because
Defendant did not make this argument in the district court, the Government argues we
should apply plain error review. But we need not even reach Defendant’s First
Amendment argument, because it only goes to the Government’s discriminatory intent,
not to whether the prosecution had a discriminatory effect. Like the district court, we can
resolve this case on the discriminatory effect prong. To show a discriminatory effect,
Defendant may not simply point out the similarities he shares with the other unprosecuted
bidders. Instead, he must show the other defendants’ “circumstances present no
distinguishable legitimate prosecutorial factors that might justify making different
prosecutorial decisions with respect to them.” Deberry, 430 F.3d at 1301 (quoting United
States v. Olvis, 97 F.3d 730, 744 (4th Cir. 1996)). Defendant has not met this standard.
The tables he submitted show only one other bidder who, like Defendant, failed to submit
both a down payment and a later payment in full. That other bidder had won three
parcels totaling about 1,800 acres at an auction in New Mexico. Defendant, by contrast,
won fourteen parcels totaling around 22,600 acres at a Utah auction. Furthermore,
Defendant submitted no evidence that the other bidder had bid with the purpose of
disrupting or stopping the sale. Therefore, Defendant did not meet the threshold for
discovery related to selective prosecution. The district court properly denied the motion.
H.
Finally, mixed in with his argument about selective prosecution, Defendant raises
the specter of retaliatory sentencing. He claims the district court imposed a heavier
sentence based on his exercise of his First Amendment rights. He bases this argument on
- 22 -
some of the district court’s statements during the sentencing hearing. The court said:
If this hadn’t been a continuing trail of statements by Mr. DeChristopher
about his advocacy, as he calls it civil disobedience, and that he will
continue to fight, and I am prepared to go to prison, then others are going to
have to be prepared to go with me, that causes me to feel under the
sentencing laws before me that a term of imprisonment is required.
Appellant’s App., vol. II at 964. The court also mentioned Defendant’s decision to “step
to any bank of microphones that he could find to give a speech . . . and advocate that it
was fine for him to break the law.” Appellant’s App., vol. II at 963.
Defendant cites a number of cases from our sister circuits concluding that a district
court may not constitutionally impose a criminal sentence “based to any degree on
activity or beliefs protected by the [F]irst [A]mendment.” United States v. Lemon, 723
F.2d 922, 938 (D.C. Cir. 1983). See also United States v. Rosenberg, 806 F.2d 1169,
1179 (3d Cir. 1986) (“[T]he imposition of a sentence on the basis of a defendant’s beliefs
would violate the [F]irst [A]mendment’s guarantees.”); United States v. Bangert, 645
F.2d 1297, 1308 (8th Cir. 1981). Although these cases are correct that First Amendment
protections apply at sentencing, see Dawson v. Delaware, 503 U.S. 159, 168 (1992), their
use of the term “based on” is susceptible to interpretations that conflict with Supreme
Court precedent.
A sentencing court “has always been free to consider a wide range of relevant
material.” Payne v. Tennessee, 501 U.S. 808, 820–21 (1991). Thus, the Supreme Court
has rejected the notion that the Constitution erects “a per se barrier to the admission of
evidence concerning one’s beliefs and associations at sentencing simply because those
beliefs and associations are protected by the First Amendment.” Dawson, 503 U.S. at
- 23 -
165. In Dawson, the state trial court admitted evidence regarding the beliefs of the Aryan
Brotherhood, of which the defendant was a member, into the penalty phase of a jury trial.
Id. at 162. The Supreme Court rejected the defendant’s argument that the Constitution
forbids the consideration of any evidence concerning protected beliefs or activities at
sentencing. Id. at 164. In many cases, the Court said, “associational evidence might
serve a legitimate purpose in showing that a defendant represents a future danger to
society.” Id. at 166. One example of this would be membership in an organization “that
endorses the killing of any identifiable group.” Id. Nevertheless, the Court held that the
admission of the Aryan Brotherhood evidence violated the First Amendment because it
was “totally without relevance to [the defendant’s] sentencing proceeding.” Id. at 165.
The evidence was so limited that it only tended to prove the “abstract beliefs” of the
Aryan Brotherhood and the defendant. Id. at 166–67. The Court expressed concern that
the evidence was introduced “simply because the jury would find these beliefs morally
reprehensible.” Id. at 167.
Dawson indicates, at the very least, that a court may impose a sentence “based on”
a defendant’s protected beliefs as long as those beliefs are “relevant to the issues
involved.” Id. at 164. Thus, the Fifth Circuit holds that a sentencing court may consider
a defendant’s beliefs if they are “sufficiently related to the issues at sentencing.” United
States v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005) (quoting Boyle v. Johnson, 93 F.3d
180, 183–85 (5th Cir. 1996)). The Simkanin court held a defendant’s belief in the
invalidity of federal tax laws was relevant to his tax crimes and “demonstrate[d] a
likelihood of recidivism.” Id. Similarly, the Ninth Circuit held that a district court could
- 24 -
impose a sentence based on the defendant’s views where the court “made it clear that it
was increasing the sentence based on [the defendant’s] lack of remorse and his threat to
. . . the public when released.” United States v. Smith, 424 F.3d 992, 1016 (9th Cir.
2005). Because the need to promote respect for the law and afford adequate deterrence
were “legitimate sentencing factors under 18 U.S.C. § 3553(a),” Smith held the district
court could consider the Defendant’s views in imposing sentence. Id.Here, the district court considered Defendant’s beliefs for relevant purposes and
did not punish him for his speech. The court said, “I want to make clear that Mr.
DeChristopher had every right to make every pronouncement that I know of about
everything, and when he was convicted of a felony, to go out in front of this courthouse
and say whatever he said. He had the right to do that.” Appellant’s App., vol. II at 963.
And when the court imposed sentence, it noted it was “focusing primarily on respect for
the law and deterrence.” Id. at 966. The context makes clear that the court, far from
punishing Defendant for the content of his public statements, simply relied on those
statements to determine the sentence necessary to deter Defendant from future violations
and to promote respect for the law. Defendant’s statements that he would “continue to
fight” and his view that it was “fine to break the law” were highly relevant to these
sentencing factors. So the district court did not violate the First Amendment by
considering Defendant’s public statements when imposing sentence.
AFFIRMED.
- 25 -
No. 11-4151, United States v. DeChristopher
BRISCOE, Chief Judge, concurring in part and dissenting in part.
I respectfully dissent from Part II.A of the majority opinion. Of the eight
arguments DeChristopher advances in this appeal, I see merit only in his contention that
the evidence at trial was insufficient to convict him on Count 1 of the indictment.
Consequently, I would reverse the judgment of the district court as regards the conviction
on that count. I would otherwise affirm the judgment.
Count 1 charged DeChristopher with violating Chapter 3A of the Federal Onshore
Oil and Gas Leasing Reform Act (FOOGLRA), 30 U.S.C. § 195(a)(1), which makes it
“unlawful for any person . . . to organize or participate in any scheme, arrangement, plan,
or agreement to circumvent or defeat the provisions of this chapter or its implementing
regulations.” 30 U.S.C. § 195(a)(1). Count 1 specifically alleged that “[o]n or about
December 19, 2008,” DeChristopher “did organize and participate in a scheme,
arrangement, plan, and agreement to defeat the provisions of [FOOGLRA] . . . by
knowingly interfering with the competitive bidding process of the sale of federal oil and
gas leases.” And at trial, Jury Instruction No. 13 outlined in the following manner the
essential elements of this alleged offense:
The defendant is charged in Count 1 with a violation of [FOOGLRA] by
interfering with the competitive bidding process of the December 19, 2008
oil and gas lease auction. To find the defendant guilty of this offense you
must be convinced that the United States has proved each of the following
beyond a reasonable doubt:
First, the defendant knowingly organized or participated in a
scheme or plan; and
Second, the scheme or plan was intended to circumvent or
defeat the competitive bidding process of the sale of federal
oil and gas leases.
“Knowingly” means that the action was done voluntarily and
intentionally and not because of mistake or accident.
Dist. Ct. Document 65, at 15 (Instruction No. 13).
According to the majority, DeChristopher “is arguing the Government failed to
prove a required element,” i.e., “group activity,” “but that element was not part of the jury
instructions.” Op. at 10 n.4. I disagree. In challenging the sufficiency of the evidence
supporting his conviction on Count 1, DeChristopher argues that “[t]he statutory language
of the offense [he] was charged with and convicted of describes an anticipatory or
inchoate offense similar to conspiracy, the gravamen of which is multiple people
consorting to evade the laws governing the auction process.” Aplt. Br. at 18. More
specifically, he argues that “[t]he [statutory] terms ‘organize’ and ‘participate’ refer to
group or shared activity” and “would be superfluous if Congress had intended for
individual liability for individual intentions to violate the law.” Id. at 18-19. In turn, he
argues that “[t]here was no evidence presented . . . that [he] participated, organized, or
acted jointly or in concert with any other person in a scheme, arrangement, plan or
agreement to defeat any law.” Id. at 19.
In my view, DeChristopher’s arguments are entirely consistent with, rather than
foreclosed by, the language of Jury Instruction No. 13. As noted, Instruction No. 13
specifically employed the statutory words “organized” and “participated.”
DeChristopher is now arguing that these words, which were not defined for the jury, can
2
only be construed to encompass group activity, and that the government failed to present
any evidence of group activity.1
Thus, in sum, the question posed by DeChristopher is whether the language of 30
U.S.C. § 195(a)(1), upon which Count 1 of the indictment and the jury instructions were
based, is aimed at group activity or whether a single person acting alone can violate the
statute. If proof of the latter is not enough, we must next address whether under plain
error DeChristopher’s conviction on count one can be upheld.
The plain language of § 195(a)(1) reveals a distinct evidentiary shortfall in the
government’s case against DeChristopher. Congress did not make it unlawful to “engage
in conduct” that circumvents or defeats the provisions of FOOGLRA. Rather, it chose
words that commonly denote group activity, both in everyday language and other
statutory provisions. Here, it is undisputed that DeChristopher acted alone—a fact the
government and the majority confront by twisting the common understanding of
“organize” and “participate” to cover the conduct of a lone actor. This deficiency is fatal
1
As the majority correctly notes, it is unsettled in this circuit whether, in resolving
a defendant’s sufficiency-of-evidence challenge, we look to the elements of the crime as
outlined in the relevant statute, or instead to the elements as described in agreed-upon or
otherwise unchallenged jury instructions. Op. at 10 n.4; see also United States v.
Romero, 136 F.3d 1268, 1273 (10th Cir. 1998) (“the case law in this circuit clearly
establishes that we adhere to the law of the case doctrine, whereby the Government is
required to prove all elements put forth in unchallenged instructions to the jury, even if
the Government would not, under law, be otherwise required to do so.”). It is
unnecessary to decide that question in this case because, in my view, DeChristopher
prevails under either approach (indeed, it would be more beneficial to DeChristopher if
we were to look only to the elements as described in the jury instructions, because they
utilized only a portion of the relevant statutory language).
3
to the government’s case. Even under plain error review, I would reverse
DeChristopher’s conviction on this count.
I
In 1987, Congress enacted FOOGLRA to reform the process for competitively
awarding and administering oil and gas leases on federal lands. See Pub. L. 100-203, 101
Stat. 1330. The enforcement provision of the law makes it “unlawful for any person . . .
to organize or participate in any scheme, arrangement, plan, or agreement to circumvent
or defeat the provisions of this chapter or its implementing regulations.” 30 U.S.C. §
195(a)(1). The following subsection provides that “[a]ny person who knowingly violates
the provisions of subsection (a) of this section shall be punished by a fine of not more
than $500,000, imprisonment for not more than five years, or both.” Id. § 195(b). What
evidence is required to support a conviction under FOOGLRA is a matter of first
impression before the federal courts, and, as a consequence, our interpretation of the
statute and the proofs required to sustain a conviction under it have the potential to affect
more than just DeChristopher’s prosecution.
DeChristopher argues that the plain language of the statute requires the
government to prove that he and at least one other person “shared the goal” of defeating
or circumventing specific, known provisions of chapter 3A of Title 30. Aplt. Br. at 19-
20. The government contends that we must review this argument under the plain error
standard because DeChristopher did not present it to the district court.
I agree with the majority and the government that we must apply plain error review
4
to this argument because DeChristopher failed to raise it in the district court.2 Under the
plain error standard, DeChristopher has the burden of demonstrating: (1) an error; (2) that
is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity,
or public reputation of judicial proceedings. United States v. McGehee, 672 F.3d 860,
876 (10th Cir. 2012). The error generally must be “clear or obvious under current law.”
United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (quotation omitted). But
“the absence of circuit precedent does not prevent the clearly erroneous application of
statutory law from being plain error.” Id. (quotation and brackets omitted).
Of course, little about this case of first impression is “clear or obvious.” The
parties are unaware of any previous prosecution under § 195(a) since it was enacted in
1987. And I agree with the majority that this seems to have been the first. But even in
the absence of precedent, I would still conclude plain error is established here because the
acts alleged and presumably found by the jury do not fall within the scope of the statute.
In interpreting federal statutes, “we first and foremost look to the statute’s
language to ascertain Congressional intent,” giving words their ordinary and plain
2
DeChristopher vigorously contests forfeiture by arguing that he raised this issue
in his proposed jury instructions, motion to dismiss, testimony on his own behalf, and
defense counsel’s opening and closing statements to the jury. But one strains to find even
the most oblique references at trial to the group-activity argument now raised. The
closest defense counsel came to raising the argument came during closing argument,
where he argued that DeChristopher “didn’t have a plan with other people that he had
conspired with . . . to go down [to the auction] and do anything.” Aplee. Supp. App. at 7-
8. Even viewed in the most charitable light, DeChristopher never gave the district court
the opportunity to directly address whether evidence of group activity was required.
5
meaning. United States v. West, 671 F.3d 1195, 1199 (10th Cir. 2012). If the terms of
the statute are clear and unambiguous, the inquiry ends and we simply give effect to the
plain language of the statute.” United States v. Sprenger, 625 F.3d 1305, 1207 (10th Cir.
2010) (quotation omitted). “The plain meaning of legislation should be conclusive,
except in the rare cases [in which] the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 243 (1989) (quotation omitted). “In such cases, the intention
of the drafters, rather than the strict language, controls.” Id.Again, the statute makes it “unlawful for any person . . . to organize or participate
in any scheme, arrangement, plan, or agreement to circumvent or defeat the provisions of
this chapter or its implementing regulations.” 30 U.S.C. § 195(a)(1). The plain language
of the statute suggests that it targets action taken in concert with others to defeat or
circumvent FOOGLRA or its implementing regulations. Both verbs selected by
Congress—“organize or participate”—indicate group activity. See Oxford English
Dictionary (online; March 2012) (defining “organize,” inter alia, as “[t]o coordinate or
manage the activities of (a group of people),” or “to plan organized action”); id. (defining
“participate” as “[t]o take part; to have a part or share with a person”). The four potential
objects of the action—“any scheme, arrangement, plan, or agreement”—also suggest
group activity, although not as compellingly. Id. (defining “scheme” as a “plan of action
devised in order to attain some end; a purpose together with a system of measures
contrived for its accomplishment”); id. (defining “arrangement” as “[d]isposition of
6
measures for the accomplishment of a purpose; preparations for successful
performance”); id. (defining “plan” as an “organized (and usually detailed) proposal
according to which something is to be done; a scheme of action; a strategy; a programme,
schedule” or “an offensive strategy; a scheme to defeat, capture, or prevail over someone
or something, or a method of achieving this”); id. (defining “agreement” as a “coming
into accord; an arrangement between two or more persons as to a course of action”).
Congress’s use of these terms in other statutes suggests it understands these verbs apply
to actions involving more than one person. For example, it is unlawful to travel interstate
with intent “to organize, promote, encourage, participate in, or carry on a riot.” 18 U.S.C.
§ 2101(a). More benignly, federal law authorizes the administrator of the Federal
Emergency Management Agency “to organize, or to participate in organizing, an annual
conference on fire prevention and control.” 15 U.S.C. § 2213. In these and various other
contexts, organizing and participating suggest either concerted action by more than one
person—such as a riot—or individual acts bearing on some group activity—such as
coordinating a conference.
Even if reasonable minds could disagree on the plain meaning of “organize” and
“participate,” application of FOOGLRA’s enforcement provision on these facts would
“produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair
Enters., 489 U.S. at 243. On this point, we are not without helpful guidance from
legislative history, which elucidates whatever the plain language leaves unclear.
The civil and criminal penalties provided in FOOGLRA’s enforcement provision
7
were intended to curtail a proliferation of fraud and abuse by private parties in the
government’s leasing of oil and gas rights on federal lands. See H.R. Rep. No. 378, 100th
Cong., 1st Sess. 15 (1987) (explaining that enforcement provision is intended to “combat
fraud and abuse of the federal oil and gas leasing program”); S. Rep. No. 188, 100th
Cong., 1st Sess. 1 (1987) (listing as one purpose of reform legislation the need to
“strengthen the Federal authority to stop certain unlawful practices with respect to
mineral leasing engaged in by private parties” (emphasis added)). The house report
documented specific forms of fraud that had arisen in the industry:
Fraud and abuse has long been associated with the lottery used
to issue the vast majority of leases on a noncompetitive basis.
On occasion, the system has been subject to manipulation and
due to continuing deficiencies in making geological
determinations relating to oil and gas structures, lands which
should have been issued by competitive leasing to the highest
bidder were instead issued noncompetitively for a minimal filing
fee. Another major problem involves the so-called “40 Acre
Merchants” who obtain leases which contain no known oil or
gas resources, divide them into parcels of less than 40 acres, and
peddle them using false promises of high return to unsuspecting
citizens. . .
Due to these situations, there currently exists uncertainty
over whether the noncompetitive leasing system can withstand
fraud and abuse . . . .
H.R. Rep. No. 378, 100th Cong., 1st Sess. 15 (1987). A report of the Senate Committee
on Energy and Natural Resources explained that, before FOOGLRA, “the Federal
onshore oil and gas leasing program ha[d] been criticized for . . . speculation by third
parties that engaged in fraudulent activities.” S. Rep. No. 188, 100th Cong., 1st Sess. 2
(1987). Specifically, “[c]ertain companies ha[d] engaged in misrepresenting to the public
8
the chance of winning leases, the value of the leases, and the likelihood of industry
interest in buying leases from members of the public should they win leases in the
lottery,” and “[a]dministrative remedies imposed by [the Department of Interior] . . .
ha[d] reduced but not eliminated [these] fraudulent and speculative activities.” Id. at 3.
This legislative history suggests this unusual statutory language was carefully
chosen to address a specific problem: oil and gas industry insiders were using their
expertise to exploit the weaknesses of the laws then applicable to oil and gas leasing.
Considering this is a case of first impression in an area that sees little federal litigation,
the majority’s failure to consult legislative history is puzzling. Both the legislative
history and contemporary scholarship support my view that Congress intended §
195(a)(1) to combat fraudulent industry practices by groups of insiders. One pair of
scholars explained that this subsection of FOOGLRA’s enforcement provision made it
“unlawful to ‘organize or participate in’ any sort of group activity to get around the
provisions” of oil and gas leasing laws.3 Thomas L. Sansonetti & William R. Murray, A
Primer on the Federal Onshore Oil and Gas Leasing Reform Act of 1987 and its
Regulations, 25 Land & Water L. Rev. 375, 414 (1990) (emphasis added). Of all the
legislative and scholarly sources to discuss FOOGLRA’s enforcement provision, none
3
These commentators also explained that the enforcement provision in § 195(a)(1)
was “intended to give teeth to the drive for integrity in the leasing process of the nation’s
oil and gas lands.” Sansonetti & Murray, supra, at 414. Additionally, a leading treatise
explains that Congress added the enforcement mechanism “to combat the fraud allegedly
prevalent under the simultaneous leasing system.” George Cameron Coggins & Robert L.
Glicksman, Public Natural Resources Law § 39:20 (2d ed. 2012).
9
suggested it was intended to proscribe anything other than fraud by industry insiders who
knew the law and sought to exploit its vulnerabilities through concerted action.
In my view, it is inconsistent with the statutory text and congressional intent, and
ultimately clearly erroneous, to apply § 195(a)(1) to DeChristopher’s acts. Cf. Williams
v. United States, 458 U.S. 279, 287 (1982) (“Absent support in the legislative history for
the proposition that § 1014 was ‘designed to have general application to the passing of
worthless checks,’ we are not prepared to hold petitioner’s conduct proscribed by that
particular statute.” (citation omitted)). The correct reading of the statute is not subject to
reasonable disagreement; the group activity requirement is compelled based on the plain
wording of the statute. See United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir.
2003). Because the statute of conviction requires group activity, and because it is
undisputed that DeChristopher acted alone, DeChristopher was convicted based on
insufficient evidence of guilt. All four prongs of the plain error test are satisfied in this
case because “a conviction in the absence of sufficient evidence of guilt is plainly an
error, clearly prejudiced the defendant, and almost always creates manifest injustice.”
United States v. Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007) (footnote adopted by the
court en banc).
Given the legislative history of FOOGLRA’s enforcement provision, there can be
no doubt that Congress was targeting boiler-room operations run by scheming oil and gas
speculators, not the actions of a solitary intermeddler at an auction. If Congress passed §
195(a)(1) to make actions such as DeChristopher’s unlawful, “it did so with a peculiar
10
choice of language and in an unusually backhanded manner.” Williams, 458 U.S. at 287.
Even under the plain error standard, DeChristopher’s conviction for violation of §
195(a)(1) cannot be upheld in the absence of proof of group activity.
III
I would reverse the judgment of the district court as regards the conviction under §
195(a)(1). I would otherwise affirm the judgment.
11