Lead Opinion
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.
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)®, (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 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,
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 “certified] 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
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.
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 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,
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
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 “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
The defense showed the jury a 22-min-ute 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’ imprisonment and three years’ supervised release.
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 pros
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 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,
“An error is plain if it is clear or obvious under current, well-settled law. In 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,
Nor does the statute’s language unambiguously require group activity. See United States v. Brown,
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.
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
We cannot accept Defendant’s argument that the statute required him to know the specific statutory or regulatory provisions he was violating. In Liparota v. United States,
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. 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,
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.”
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.
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.” Ap
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,
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,
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 rights, we review the ruling de novo. United States v. Markey,
“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,
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 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,
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 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
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,
Defendant focuses most of his argument on the newly-asserted theory that the 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,
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 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*1098 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,
A sentencing court “has always been free to consider a wide range of relevant material.” Payne v. Tennessee,
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,
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.
Notes
. 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).
. 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.
. 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.
. 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,
. 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.”
. 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.
. 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. So, as instructed, the jury could not convict Defendant on the basis of his false statement that he was a bidder.
Concurrence Opinion
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).
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 only be construed to encompass group activity, and that the government failed to present any evidence of group activity.
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 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
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 to this argument because DeChristopher failed to raise it in the district court.
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 meaning. United States v. West,
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 “[disposition of 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.,
The civil and criminal penalties provided in FOOGLRA’s enforcement provision 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
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, “[cjertain companies ha[d] engaged in misrepresenting to the public 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.
In my view, it is inconsistent with the statutory text and congressional intent, and ultimately clearly erroneous, to apply
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 choice of language and in an unusually backhanded manner.” Williams,
Ill
I would reverse the judgment of the district court as regards the conviction under § 195(a)(1). I would otherwise affirm the judgment.
. 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 1091 n. 4; see also United States v. Romero,
. 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.
. 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).