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DeChristopher.tolman.in Limme 5-14-09 From Huber

DeChristopher.tolman.in Limme 5-14-09 From Huber

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Published by Cliff Lyon
" In a 27-page motion filed this week in Salt Lake City's federal court, U.S. Attorney for Utah Brett Tolman offers several examples of previous rulings against such a defense in civil-disobedience and political-protest trials.

"The only purpose the evidence would serve," the motion states, "is to encourage improper jury nullification."

That means a jury could acquit DeChristopher regardless of his admission that he fouled up the lease sale on purpose.

That Tolman and assistant U.S. attorneys John Huber and Scott Romney are trying to toss out the strategy shows they are nervous, Pat Shea, one of DeChristopher's attorneys, said Friday.

The motion only strengthens the defense's desire to take the case to a jury. "It's like Br'er Rabbit: 'Don't throw me in that briar patch,' " Shea said.

Shea and Ron Yengich, DeChristopher's other attorney, told the U.S. Attorney's Office they would base their arguments on a defense commonly known as "necessity" or "choice of evils." "
" In a 27-page motion filed this week in Salt Lake City's federal court, U.S. Attorney for Utah Brett Tolman offers several examples of previous rulings against such a defense in civil-disobedience and political-protest trials.

"The only purpose the evidence would serve," the motion states, "is to encourage improper jury nullification."

That means a jury could acquit DeChristopher regardless of his admission that he fouled up the lease sale on purpose.

That Tolman and assistant U.S. attorneys John Huber and Scott Romney are trying to toss out the strategy shows they are nervous, Pat Shea, one of DeChristopher's attorneys, said Friday.

The motion only strengthens the defense's desire to take the case to a jury. "It's like Br'er Rabbit: 'Don't throw me in that briar patch,' " Shea said.

Shea and Ron Yengich, DeChristopher's other attorney, told the U.S. Attorney's Office they would base their arguments on a defense commonly known as "necessity" or "choice of evils." "

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Published by: Cliff Lyon on May 17, 2009
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BRETT L. TOLMAN, United States Attorney (8821)JOHN W. HUBER, Assistant United States Attorney (7226)SCOTT B. ROMNEY, Assistant United States Attorney (10270)Attorneys for the United States of America185 South State Street, Suite 300Salt Lake City, Utah 84111Telephone: (801) 524-5682Facsimile: (801) 524-6925IN THE UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DIVISIONUNITED STATES OF AMERICA,Plaintiff,vs.TIM DeCHRISTOPHER,Defendant. ::::CASE NO: 2:09 cr 183 DBMOTION
 IN LIMINE 
IN RE: NECESSITY DEFENSEHonorable DEE BENSONThe United States, by and through the undersigned Assistant United StatesAttorneys, respectfully submits this Motion In Limine to bar the defendant TimDeChristopher (“defendant”) from presenting a necessity defense at trial, including anyevidence in support of such a defense. As a professional courtesy, counsel for thedefendant informed the United States that the defendant intends to present a defense attrial commonly referred to as the defense of “necessity,” or “choice of evils.” Accordingto case law, however, this defense is improper when th underlying criminal conduct arisesfrom a typical protest, as is the case here. Moreover, the evidence and argument that the
Case 2:09-cr-00183-DB Document 12 Filed 05/14/2009 Page 1 of 28
 
The oil and gas lease sales are governed by the Minerals Leasing Act of 1920 and the
1
Federal Onshore Oil and Gas Reform Leasing Act of 1987.To nominate a particular parcel of land for inclusion in an oil and gas lease sale, an
2
interested party can file either a formal nomination, or an “expression of interest” typically in theform of a letter to the BLM.2United States anticipates the defendant will present in support of his necessity defense presents a significant risk of improper jury nullification.Accordingly, the United States respectfully requests that the Court preclude thedefendant from presenting evidence at trial relating to a necessity defense and enter anappropriate order to govern the parties at trial.
FACTS
The defendant Tim DeChristopher intentionally interfered with the competitive bidding process for federal oil and gas leases by bidding on leases that he had neither themeans nor the intention of purchasing. As a result, the integrity of the sale wascompromised; several bids were nullified and the final purchase price of others wasinflated. On April 1, 2009, a grand jury returned a two-count Indictment against thedefendant, charging him with (1) violating the Federal Onshore Oil and Gas LeasingReform Act, and (2) providing false statement.
 A.Oil and Gas Lease Sales Generally
As regulated by law, each year the BLM conducts quarterly auctions for the sale of oil and gas leases on public lands. 30 U.S.C. § 226(b)(1)(A). The BLM or any
1
interested party may nominate parcels to be included in an auction sale. Nominations are
2
Case 2:09-cr-00183-DB Document 12 Filed 05/14/2009 Page 2 of 28
 
3typically received five months prior to the auction date. After nominations are received,the BLM divides the land into parcels and assigns each parcel a number.
 Id.
at §226(b)(1)(A). The parcels are then screened to determine if they are legally available for sale.
 
42 U.S.C. §§ 4321-4370. As part of this process, the BLM assesses theenvironmental impact of offering the nominated parcels for oil and gas leases and worksto ensure that their issuance is in compliance with its land use plan, known as theResearched Management Plan.
 Id.
 After determining the viability of the nominated parcels, the BLM posts a list of the proposed parcels that will be included in the upcoming sale. The list must be postedfor public comment forty-five days prior to the auction date. 43 C.F.R. § 3120.3-1. Oncethe BLM posts the list to the public, a thirty-day protest period begins. 43 C.F.R. §§3120.4-1(a). Within this time, members of the public may lodge a protest against any of the proposed leases. 43 C.F.R. § 4.450-2. The BLM does not issue any lease under  protest. 43 C.F.R. § 3120.1-3. Therefore, the BLM publishes a list of the parcels uponwhich protests have been lodged to inform potential bidders of the lease’s possibleencumbrance.It can take months for the BLM to review a protest. For each protest, the BLMmust issue a protest decision. According to Kent Hoffman, Deputy State Director for Lands and Minerals in the Utah BLM office, the BLM currently has a backlog of proteststo review from prior sales. Some leases have been under protest with no resolution for 
Case 2:09-cr-00183-DB Document 12 Filed 05/14/2009 Page 3 of 28

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