Divided Panel Affirms Conviction for "Organizing or Participating" in a Plan to Defeat Oil Leasing Procedures, Although Defendant Acted Alone

U.S. v. DeChristopher, 2012 WL 4040268 (9/14/12) (Ut.) (Published) - It was not plain error to let stand a conviction under 30 U.S.C. § 195(a) for "organizing or participating in a scheme, arrangement, plan or agreement to defeat" the BLM oil leasing procedures, even though the defendant acted alone. While the statute's language seems to call for group activity, it does not unambiguously require it. So any error is not "plain." In a footnote, the 10th notes an uncertainty as to whether a challenge to the sufficiency of the evidence relates to how the jury was instructed [which in this case did not require group activity], or with respect to how a jury should have been instructed. The defendant did not have to know the specific provisions he was violating. It was enough that he knew his actions circumvented or defeated the relevant statutes and regulations. Here he told officers he went there to stop the auction and to bid on leases for amounts of money he couldn't afford [for wacky environmental reasons], So the government proved the mens rea requirement. There was also sufficient evidence he made a false statement in violation of 18 U.S.C. § 1001(a) when he signed a form saying he had a good faith intention to acquire a lease. Although the defendant asserted he only decided to bid about 20 minutes into the auction, the jury could disbelieve him, since, among other things, he could have entered the auction area just as an observer, instead of going to the extent of getting a bidder's paddle.

The jury instructions did not constructively amend the indictment. The instructions only omitted indictment allegations that were not essential elements of the offense. And while the indictment charged in the conjunctive, the government only had to prove its case in the disjunctive. The trial court correctly excluded irrelevant evidence of the BLM not following its environmental regulations. The statute does not allow an "unclean hands" defense. The defendant was not entitled to a necessity defense because he had a lawful alternative. He could have filed a law suit and sought an injunction. The defendant did not show selective prosecution. The other person he compared himself to won less bids for less money and there was no evidence that person wanted to disrupt the sale. The trial court did not violate the defendant's First Amendment rights by relying in part on the defendant's public statements that he would continue to fight and was prepared to go to jail for his beliefs. The First Amendment does apply to sentencing, but the d. ct. did not punish the defendant for the content of his speech, but to deter him from future violations and to promote respect for the law.

Chief Judge Briscoe dissented on behalf of a criminal defendant once again. She believed 30 U.S.C. § 195(a) clearly required group activity and the evidence showed only that the defendant acted alone. Even though there was no record of any other prosecution under the statute, the error was plain in light of the language and the legislative history, which indicated Congress passed the statute to prevent oil and gas industry insider speculators from getting together to exploit the weaknesses of the law.