Case 2:09-cr-00183-DB Document 12 Filed 05/14/2009 Page 1 of 28

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 America
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
Facsimile: (801) 524-6925

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA, :

CASE NO: 2:09 cr 183 DB
Plaintiff, :
MOTION IN LIMINE IN RE:
vs. : NECESSITY DEFENSE

TIM DeCHRISTOPHER, :
Honorable DEE BENSON
Defendant.

The United States, by and through the undersigned Assistant United States

Attorneys, respectfully submits this Motion In Limine to bar the defendant Tim

DeChristopher (“defendant”) from presenting a necessity defense at trial, including any

evidence in support of such a defense. As a professional courtesy, counsel for the

defendant informed the United States that the defendant intends to present a defense at

trial commonly referred to as the defense of “necessity,” or “choice of evils.” According

to case law, however, this defense is improper when th underlying criminal conduct arises

from 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 2 of 28

United 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 the

defendant from presenting evidence at trial relating to a necessity defense and enter an

appropriate 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 the

means nor the intention of purchasing. As a result, the integrity of the sale was

compromised; several bids were nullified and the final purchase price of others was

inflated. On April 1, 2009, a grand jury returned a two-count Indictment against the

defendant, charging him with (1) violating the Federal Onshore Oil and Gas Leasing

Reform 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.1 30 U.S.C. § 226(b)(1)(A). The BLM or any

interested party may nominate parcels to be included in an auction sale.2 Nominations are

1
The oil and gas lease sales are governed by the Minerals Leasing Act of 1920 and the
Federal Onshore Oil and Gas Reform Leasing Act of 1987.
2
To nominate a particular parcel of land for inclusion in an oil and gas lease sale, an
interested party can file either a formal nomination, or an “expression of interest” typically in the
form of a letter to the BLM.

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typically 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 the

environmental impact of offering the nominated parcels for oil and gas leases and works

to ensure that their issuance is in compliance with its land use plan, known as the

Researched 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 posted

for public comment forty-five days prior to the auction date. 43 C.F.R. § 3120.3-1. Once

the 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 upon

which protests have been lodged to inform potential bidders of the lease’s possible

encumbrance.

It can take months for the BLM to review a protest. For each protest, the BLM

must 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 protests

to review from prior sales. Some leases have been under protest with no resolution for

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three years. More than 350 leases auctioned between August 2005 and August 2008 are

unissued pending protest resolution.

After the public comment period, the remaining leases, including those with

unresolved protests, are auctioned to registered bidders at the sale.

B. The December 19, 2008, Lease Sale

On November 4, 2008, the BLM posted a list of nominated land parcels to be

offered for lease at its quarterly oil and gas auction on December 19, 2008. During the

30-day public comment period that followed, the BLM received numerous protests.

Indeed, the December auction became the subject of much controversy and public debate.

Of the filed protests, many complained that the proposed leases did not conform with the

BLM’s land use plan; others protested that the proposed leases were located too closely to

national parks and other landmarks; some protested the adverse environmental impact oil

and gas development might have. In total, there were approximately 1600 protests filed

including at least one protest for every proposed parcel on the auction list. This meant

that no lease involved in the December auction could issue until after the BLM had

evaluated and affirmatively resolved any protest filed on that parcel.

In addition to the 1600 protests filed before the BLM, on December 17, 2008, two

days before the scheduled auction, a coalition of environmental groups filed a federal

lawsuit in the District of Columbia seeking to prevent the issuance of leases included in

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the auction. Southern Utah Wilderness Alliance v. Allred, No. 08-2187, 2009 WL

765882, at *1-2, (D.D.C. Jan. 17, 2009).

On the day of the auction, the defendant went to the oil and gas lease sale at the

Utah office of the BLM in Salt Lake City. Environmental activists had organized a

protest outside the BLM office where the auction was held. The defendant originally

planned to attend the protest, but after arriving, decided instead to register to bid on the

leases with the intention to drive up the prices oil and gas companies would have to pay to

obtain the leases.

In order to register as a bidder, the defendant was required to fill out and sign a

“Bidder Registration Form.” The Bidder Registration Form required the bidder to certify

that: (1) he was a good-faith bidder, (2) he had the intention to acquire an oil and gas

lease on the offered lands, (3) a winning a bid constituted a legally binding commitment

to accept the lease, and (4) in the event of winning a bid, he was obligated to pay the

BLM by the end of the day a percentage of the lease’s purchase price, whether or not the

lease was subsequently issued.

The Bidder Registration Form also informed the defendant of the criminal

consequences of tampering with the bidding process. The form that defendant signed

stated: “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 jurisdiction.”

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At the auction, the defendant placed bids on dozens of offered leases. Early on,

the defendant pulled out of the bid once he had driven the price up but before he had won

the bid. But then he began to bid on the offered leases until he won. In total, the

defendant won fourteen parcels totaling $1.7 million.

C. Post-offense Events Related to the December Lease Sale

On January 17, 2009, the United States District Court for the District of Columbia

granted a temporary restraining order preventing the BLM from issuing seventy-seven of

the leases that were sold at the December auction in Salt Lake City. Allred, 2009 WL

765882, at *1. The court issued the TRO because it found that the Interior Department

did not include in its environmental impact statement an assessment of air pollution

concentrations on those parcels. Id. at *2.

On February 4, 2009, in response to the court’s decision ordering injunctive relief,

Secretary of the Interior Kenneth Salazar canceled the winning bids on the seventy-seven

disputed leases and returned $6 million of payments that the BLM had collected from

their sale.

Included among the seventy-seven parcels that Secretary Salazar canceled were

eleven of the fourteen leases that the defendant “won.” The other three leases were

unaffected by the Secretary’s order.

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DISCUSSION

I. As a Matter of Law, Criminal Charges Stemming from a Typical Protest

Cannot Be Justified by the Necessity, or Choice of Evils, Affirmative Defense.

The Supreme Court summarized the evolution of the necessity defense in United

States v. Bailey, 444 U.S. 394 (1980). In Bailey, the Supreme Court explained:

“Common law historically distinguished between defenses of duress and necessity[, and

that] the defense of necessity, or choice of evils, traditionally covered the situation where

physical forces beyond the actor’s control rendered illegal conduct the lesser of two

evils.” Id. at 409-10. Nevertheless, the Supreme Court noted, modern cases have blurred

the distinction between a duress defense and a necessity defense. Id. at 410. Regardless

of what this type of defense is called 3 or what its particular contours are, “[u]nder any

definition of the defenses one principle remains constant: if there was a reasonable, legal

alternative to violating the law, ‘a chance both to refuse to do the criminal act and also to

avoid the threatened harm,’ the defenses will fail.” Id. (quoting LaFave & Scott,

Handbook on Criminal Law § 28, p. 379 (1972)).

Since Bailey, appellate courts have applied the Supreme Court’s holding in the

particular context of prosecutions of criminal conduct arising from generic protest cases,

like the instant case. Uniformly, circuit courts have affirmed district court findings that a

necessity defense, and its supporting evidence, shall not be presented to the jury in

3
For purposes of this motion, the United States will call the defendant’s proposed defense
a “necessity” defense.

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prosecutions of criminal acts stemming from anti-government protests. In fact, at least

one circuit has specifically held that the necessity defense is inapplicable in all particular

civil disobedience prosecutions. Accordingly, in this matter, this Court should either find

that: (A) the necessity defense is inapplicable on its face to provide a justification for the

defendant’s indirect civil disobedience acts; or in the alternative, (B) the defendant cannot

meet the four required elements of the necessity defense, and is barred from presenting it

to the jury.

A. The Necessity Defense “can never be proved in a case of

indirect civil disobedience.”

In responding to this motion, the defense will be hard pressed to cite to any federal

anti-government civil disobedience case in which the defendant was allowed to present a

necessity defense to the jury for consideration in rendering a verdict. Cf. United States v.

Maxwell, 254 F.3d 21(1st Cir. 2001)(necessity defense barred in prosecution of offenses

originating in naval base protest); United States v. Cassidy, 616 F.2d 101 (4th Cir.

1979)(anti-nuclear war protest offenses at Pentagon not justified by necessity defense);

United States v. Quilty, 741 F.2d 1031 (7th Cir. 1984)(anti-nuclear war protest offenders

not allowed to present necessity defense at trial); United States v. Schoon, 971 F.2d 193

(9th Cir. 1992)(obstructive protestors at IRS office could not, by law, avail themselves of

necessity defense); United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985)(necessity

defense disallowed in prosecution stemming from MX missile protest); United States v.

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Lowe, 654 F.2d 562 (9th Cir. 1981)(no necessity defense available in prosecution of

protestors of nuclear submarine base); United States v. May, 622 F.2d 1000 (9th Cir.

1980)(Trident missile protestors at naval installation failed to satisfy requirement of

necessity defense); United States v. Turner, 44 F.3d 900 (10th Cir. 1995)(abortion clinic

protestors could not present necessity defense to jury); United States v. Seward, 687 F.2d

1270 (10th Cir. 1983)(no necessity defense allowed in prosecution of civil disobedients

who protested nuclear power plant). In fact, some circuits have touched on this

overwhelming phenomenon of a complete lack of case law supporting necessity defenses

in civil disobedience prosecutions. See United States v. Kabat, 797 F.2d 580, 591-592

(8th Cir. 1986)(“The necessity defense was never intended to excuse criminal activity by

those who disagree with the decisions and policies of the lawmaking branches of

government”).

Controlling case law in the Tenth Circuit holds: “[Necessity] is obviously not a

defense to charges arising from a typical protest.” United States v. Seward, 687 F.2d

1270, 1276 (10th Cir.), cert. denied, 459 U.S. 1147 (1983). In Seward, the defendants

were protestors who were arrested and charged as trespassers (they “sat down or [laid]

across the roadway” in protest) at the Rocky Flats nuclear facility in Colorado. Id. at

1271-72. The prosecution filed a motion in limine seeking to bar the defendants from

presenting necessity defenses at trial. Id. at 1273. In turn, the trial court ordered the

defendants to provide offers of proof in advance of trial regarding their proposed

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necessity defenses. Id. The defendants’ offers of proof proposed that “various witnesses

would have testified to the effects of radiation, risks of accidental leakage, soil

contamination in the land surrounding Rocky Flats, and lack of viable political

alternatives.” Id. The trial court ruled that their offers of proof fell short of the necessity

defense requirements, and all necessity-related evidence and arguments were barred from

trial. Id. The defendants were subsequently convicted.

In affirming the trial court’s exclusion of the necessity defense, the Tenth Circuit

relied on two Supreme Court decisions: United States v. The Diana, 74 U.S. 354 (1869)

and United States v. Bailey, 444 U.S. 394 (1980). These decisions, the Tenth Circuit

held, directed a stringent view of the necessity defense in that it “‘must be one of absolute

and uncontrollable necessity . . . .’” Seward, 687 F.2d at 1276 (quoting Diana, 74 U.S. at

354). “‘Under any definition of [the necessity defense] one principle remains constant: if

there was a reasonable, legal alternative to violating the law, ‘a chance both to refuse to

do the criminal act and also to avoid the threatened harm,’ the [necessity defense] will

fail.’” Id. (quoting Bailey, 444 U.S. at 410).

In sum, in the Tenth Circuit prosecutions stemming from civil disobedience do not

lend themselves to the availability of a necessity defense:

The defense of necessity does not arise from a “choice” of several courses
of action, it is instead based on a real emergency. It can be asserted only by
a defendant who was confronted with such a crisis as a personal danger, a
crisis which did not permit a selection from among several solutions, some

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of which did not involve criminal acts. It is obviously not a defense to

charges arising from a typical protest.

Seward, 687 F.2d at 1276 (emphasis added); see also United States v. Turner, 44 F.3d

900, 902 (10th Cir. 1995).

The Ninth Circuit has taken Seward even further in explaining why the necessity

defense and protest crime cases are naturally incompatible. That court, in United States v.

Schoon, 971 F.2d 193 (9th Cir. 1992), was motivated to fully examine this incompatibility

dynamic after having affirmed, year after year, trial court decisions to exclude the

necessity defense in protest cases. See e.g. United States v. Dorrell, 758 F.2d 427, 431-34

(9th Cir. 1985); United States v. Lowe, 654 F.2d 562, 567 (9th Cir. 1981); United States v.

May, 622 F.2d 1000, 1008-10 (9th Cir.), cert. denied, 449 U.S. 984 (1980).

According to the Ninth Circuit, there is a “deeper, systemic reason for the

complete absence of federal case law recognizing a necessity defense in an indirect civil

disobedience case.” 4 Schoon, 971 F.2d at 195. A bona fide necessity defense is one that

4
Indirect civil disobedience involves violating a law or interfering
with a government policy that is not itself, the object of the protest.
Direct civil disobedience, on the other hand, involves protesting
the existence of a law by breaking that law or by preventing the
execution of that law in a specific instance in which a
particularized harm would otherwise follow. . . . [T]he civil rights
lunch counter sit-ins, for example, constituted direct civil
disobedience because the protestors were challenging the rule that
prevented them from sitting at lunch counters. Similarly, if a city
council passed an ordinance requiring immediate infusion of a
suspected carcinogen into the drinking water, physically blocking
the delivery of the substance would constitute direct civil

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would justify a criminal act committed to avert a greater harm, such as: a prisoner may

escape from a burning prison; a person lost in the woods could steal food from a cabin to

survive; or a ship could violate an embargo to enter a forbidden port during a violent

storm. Id. at 196 (citations omitted). At its core,

the necessity defense allows [the courts] to act as individual legislatures,

amending a particular criminal provision or crafting a one-time exception to
it, subject to court review, when a real legislature would formally do the
same under those circumstances. For example, by allowing prisoners who
escape a burning jail to claim the justification of necessity, we assume the
lawmaker, confronting this problem, would have allowed for an exception
to the law proscribing prison escapes.

Id. at 196-97.

Nevertheless, “criminal acts cannot be condoned to thwart threats, yet to be

imminent, or those for which there are legal alternatives to abate the harm” as is the case

in indirect civil disobedience prosecutions. Id. at 197. In the end, the Ninth Circuit

concluded that with indirect civil disobedience, like the defendant’s actions in this matter,

necessity will never be a viable defense as a matter of law, and the defendant should not

be to present such to the jury. Id. at 199-200. The Ninth Circuit further reasoned that: (1)

district courts spend unnecessary time and resources trying to reconcile a defendant’s civil

disobedience claims with the strict requirements of the necessity doctrine; (2) such a

disobedience: protestors would be preventing the execution of a

law in a specific instance in which a particularized harm –
contamination of the water supply – would otherwise follow.

United States v. Schoon, 971 F.2d 193, 196 (9th Cir. 1992).

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necessity defense inquiry requires a trial court to tread into areas constitutionally

committed to other branches of government; (3) humoring a necessity defense claim holds

out an unjustified expectation in a civil disobedient that his proposed defense is viable,

rather than permitting an individual to engage in a more realistic cost-benefit analysis in

deciding whether to break the law knowing that a necessity defense will not save him; and

(4) seriously considering a necessity defense in a civil disobedience case may risk its

distortion in a traditional case where it may actually be applicable. Id. at 199.

Necessity can never be a defense to the type of protest-driven offenses that the

defendant has committed. Even still, if the Court desired to run the proposed defense

through the strict necessity defense regimen, the result will be the same.

B. The Defendant’s Offer of Proof Will Fall Short of Meeting

Each and Every Required Element of the Necessity Defense.

Even if this Court does not find that a necessity defense should be barred as a

matter of law of law because of the nature of the case, the defendant still cannot meet the

required elements of the defense. Accordingly, the necessity defense should not reach the

jury in any form. Since the seminal Supreme Court opinion in Bailey, federal trial courts

have systematically required that defendants who wish to present a necessity defense to

the jury must meet certain obligations before evidence is allowed at trial.5 There are four

5
In Bailey, a trial court had allowed defendants to present to the jury 5 days of evidence of
the conditions at the prison from which they escaped, before concluding that the defendants had
not met the requirements of the necessity defense and a jury instruction would not be allowed.
United States v. Bailey, 444 U.S. 394, 398-400 (1980). However, in the trial of another

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universally recognized elements that must be met before a necessity defense may be

presented to a jury:

Invocation of the necessity defense requires a showing by the defendant

that: (1) []he was faced with a choice of evils and chose the lesser evil; (2)
[]he acted to prevent imminent harm; (3) []he reasonably anticipated a
direct causal relationship between [his] conduct and the harm to be averted;
and (4) []he had no legal alternatives to violating the law.

United States v. Turner, 44 F.3d 900, 902 (10th Cir. 1995)(citing Schoon, 955 F.2d at

1239-40). If a defendant fails in meeting just one of these rigorous elements, he is barred

from presenting necessity-related evidence and argument to the jury. Id.

A pre-trial offer of proof is required as to each element, so that the trial court may

duly consider whether the defense should reach the jury. For example, in Seward, the

Tenth Circuit affirmed the trial judge who issued the following pre-trial order in a series

of civil disobedience cases:

Unless there be an appropriate offer of proof, there will be no jury voir dire,
there will be no opening statement, there will be no testimony, there will be
no instructions and there will be no final argument as to a justification
[necessity] defense. Unless these strict requirements can be met, the cases
will be tried for jury determination of whether defendants intentionally
[committed the protest-related offenses].

Seward. 758 F.2d at 429-30. See also Dorrell, 758 F.2d at 429-30 (necessity defense

evidence excluded after defendant’s offer of proof failed to meet elements of necessity

defendant subject to the opinion (Cogdell), the more experienced trial court excluded all
evidence related to the defense at trial because the defendant had failed to meet a threshold offer
of proof. Id.

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defense); United States v. Maxwell, 254 F.3d 21, 24 (1 st Cir. 2001)(necessity defense

evidence excluded as irrelevant after failing to meet elements of defense); United States

v. Lowe, 654 F.2d 562, 564 (9th Cir. 1981)(presentation of necessity defense disallowed

as a matter of law).

This Court need only find that the defendant fails to meet just one of the four

elements in order to bar the necessity defense from finding its way to the jury.

Nevertheless, given the nature of the case, the defendant cannot meet any of the four

elements.

1. Was he was faced with a choice of evils, and chose the lesser evil?

After he committed the charged offenses, and since a grand jury issued an

indictment against him, the defendant has found his voice. From forum to forum, he has

publicly espoused the evils of the BLM oil and gas leases that he tried to sabotage

through illegal acts. On the other hand, he has championed his personal choice to commit

purported lesser evils – criminal acts – in the name of climate justice. In the end, though,

his views merely represent one segment of the population. This Court is not presently

suited to “render judgments upon the legality of the conduct of the government at the

request of any person who asks [it] to because he happens to think that what the

government is doing is wrong.” United States v. May, 622 F.2d 1000, 1009 (9th Cir.

1980).

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Because the defendant disagrees with a duly enacted law or its execution does not

make it “evil.” As in other protestor criminal prosecutions, it appears that the defendant

violated the law, “not because it is unconstitutional or otherwise improper, but because

doing so calls public attention to their objectives.” Schoon, 971 F.2d at 197. That being

so, “the mere existence of a constitutional law or governmental policy cannot constitute a

legally cognizable harm,” or evil. Id.; cf. Dorrell, 758 F.2d at 432 (“[T]he law should

[not] excuse the criminal activity intended to express the protestor’s disagreement with

positions reached by the lawmaking branches of the government.”). Moreover, the rule of

law “could not function were people allowed to rely on their subjective beliefs and value

judgments in determining which harms [or evils] justified the taking of criminal action”

as a lesser evil. Id. (citing United States v. Moylan 417 F.2d 1002, 1008-09 (4th Cir.

1969)(“[E]xercise of a moral judgment based upon individual standards does not carry

with it legal justification or immunity from punishment for breach of the law . . . .

Toleration of such conduct would [be] inevitably anarchic.”), cert. denied, 397 U.S. 910

(1970)).

One man’s view of what is evil does not create a cognizable choice between that

perceived evil and the criminal act he opportunistically opts to commit.

2. Did he act to prevent imminent harm?

Even assuming, for purposes of argument, that the defendant’s view of oil and gas

leases in southeastern Utah is correct – the government’s oil and gas lease auction was

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“evil” and there would be a harm if allowed to proceed – he still has the burden of

showing its immediacy. See e.g. United States v. Cassidy, 616 F.2d 101 (4th Cir.

1979)(holding that even if the court assumed that nuclear arms and related government policies

were illegal, the defendants could not defend their criminal acts of protest on the ground of

necessity). “After all, the term ‘imminent harm’ connotes a real emergency, a crisis

involving immediate danger to oneself or to a third party.” Maxwell, 254 F.3d at 27

(citing United States v. Newcomb, 6 F.3d 1129, 1135-36 (6th Cir. 1993); Seward, 687

F.2d at 1276). In Seward, the Tenth Circuit held that the defense of necessity must be

“based on a real emergency. It can be asserted only by a defendant who was confronted

with such a crisis as a personal danger . . . .” 687 F.2d at 1276.

Another circuit court put it this way:

We do not sit to render judgments upon the legality of the conduct of the
government at the request of any person who asks us to because he happens
to think that what the government is doing is wrong. He must be able to
show some direct harm to himself, not a theoretical future harm to all of us
that may or may not occur. To consider defendants’ argument would put us
in the position of usurping the functions that the Constitution has given to
the Congress and to the President.

May, 622 F.2d at 1009 (citations to Constitution and Supreme Court omitted).

The defendant may be passionate, sincere, and even articulate in trying to explain

that there was some sort of emergency that justified his criminal acts. Nevertheless, there

was no “personal danger,” “direct harm,” or “real emergency” that any court would

recognize as one that could support a necessity defense. Rather, he criminally interfered

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with a government proceeding which would not take effect for years to come, at the

earliest. The BLM issues no lease that has been officially protested until after the protest

has been investigated and affirmatively resolved. This can be a lengthy process. And the

backlog of over 350 unresolved protests from the previous 3 years of BLM auctions

meant that the issuance of the December 2009 leases was anything but imminent with its

additional 1600 protests.

3. Did he reasonably anticipate a direct causal relationship between his

conduct and the harm to be averted?

In his own mind, the defendant may genuinely believe that his protest single-

handedly saved southeastern Utah from imminent destruction. In fact, many of his post-

indictment supporters may bolster the defendant’s subjective perceptions. Nevertheless,

the standard under this prong of the necessity defense is one of objective reasonableness,

not a single man’s view on the world. “A defendant must demonstrate cause and effect

between an act of protest and the achievement of the goal of the protest by competent

evidence. He cannot will a causal relationship into being simply by the fervor of his

convictions (no matter how sincerely held).” Maxwell, 254 F.3d at 28 (citing United

States v. Montgomery, 772 F.2d 733, 736 (11th Cir. 1985)(holding that defendants could

not reasonably have believed that their entry into a defense plant would bring about

nuclear disarmament); Dorrell, 758 F.2d at 433-34(finding that defendant had failed to

establish that breaking into an air force base and vandalizing government property could

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reasonably be expected to lead to the termination of the MX missile program); Cassidy,

616 F.2d at 102 (finding it unlikely that splashing blood on Pentagon walls would impel

the United States to divest itself of nuclear weapons)).

The defendant will likely point out that all but three of the parcels he unlawfully

“won” at auction were later cancelled by the Secretary of the Interior. He may even

attempt to claim to have directly triggered that decision. It would be a grand leap of ego,

though, to connect the defendant’s unplanned, opportunistic acts directly to the

Secretary’s decision. That leap would, of course, overstep the significant intervening

events leading to the Secretary’s decision, such as a change in Presidential administration

including a new Secretary of the Interior, a lawsuit filed by the Southern Utah Wilderness

Alliance (SUWA) and others, and the opinion of a United States District Court Judge in

Washington, D.C.6

4. Were there no legal alternatives to violating the law?

With respect to protest cases like this one, there are always legal alternatives. As

mentioned above, the defendant had myriad lawful means to advocate his position

regarding the oil and gas leases: he could have filed with BLM a formal protest to the

6
On December 17, 2008 SUWA, the Natural Resources Defense Council, the Wilderness
Society, and Earthjustice filed a lawsuit in U.S. District Court for the District of Columbia,
challenging the oil and gas leasing in southern Utah. Then, on January 18, 2009, U.S. District
Court Judge Ricardo M. Urbina granted a temporary restraining order that prevents the BLM
from moving forward on the oil and gas leases pending the outcome of the litigation. Southern
Utah Wilderness Alliance v. Allred, No. 08-2187, 2009 WL 765882, at *1-2, (D.D.C. Jan.
17, 2009).

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parcels being auctioned; he could have filed a civil lawsuit requesting that a court enjoin

the leases from going forward; he could have contacted his elected representatives; he

could have organized or participated in rallies, parades, and the like; he could have

engaged the print and broadcast media to cast his message to the masses; he could have

enlisted celebrities to champion his cause; he could have recruited prominent members of

the legal community to act as his spokespersons; he could have appealed to the newly

elected President; and so on. Some of these lawful tactics appear to be methods and

means he has used since committing the charged offenses; they were equally available to

him prior to breaking the law.

Instead, the defendant, an admitted opportunist, chose the less patient, and criminal

route of activism. “Those who wish to protest in an unlawful manner frequently are

impatient with less visible and more time-consuming alternatives.” Dorrell, 758 F.2d at

431. However, “[t]heir impatience does not constitute the necessity that the defense of

necessity requires.” Id. An impassioned protester, like the defendant, “does have

recourse to the political process to redress his concerns regarding [the targeted issue].”

Id. at 432. Circuit courts absolutely consider the political process “as an alternative to

criminal behavior and have concluded that the defendant’s failure to resort to the political

process precludes the assertion of the necessity defense to charges arising from political

protests.” Id.; see also Seward, 687 F.2d at 1276; Quilty, 741 F.2d at 1033 (“There are

thousands of opportunities for the propagation of the . . . message: in the nation’s

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electoral process; by speech on public streets, in parks, in auditoriums, in churches and

lecture halls; and by the release of information to the media, to name only a few.”).

Here, the facts reveal that the defendant has never even filed a formal protest with

the BLM to voice his objection to the issuance of oil and gas leases for which he broke

the law to protest. The BLM is required to resolve every filed objection prior to the earth

being scratched in any way related to the awarded lease. Had the defendant filed a protest

like the hundreds of other like-minded, but law-abiding persons, the required delay would

have further allowed the political process to address his concerns.

The defendant may argue, or proffer that lawful avenues within the political

process were unlikely to effect the change he desired. According to at least two circuit

courts, however, such an argument is empty. Dorrell, 758 F.2d at 432; Maxwell, 254

F.3d at 29. In fact, the First Circuit held that: “[a]ccepting such an argument would be

tantamount to giving an individual carte blanche to interpose a necessity defense

whenever he becomes disaffected by the workings of the political process.” Maxwell,

254 F.3d at 29.

But the fact of the matter is that the legal process, which the defendant passed over

in favor of his own unlawful protest, proved to effect the very change that the defendant

desired. The success of SUWA’s injunctive suit is empirical proof that the defendant had

lawful alternatives to his criminal conduct. But, instead, the defendant opportunistically

turned to the option that violated the duly enacted and executed laws of the United States,

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veering from all the other legal alternatives available to him. Again, according to the

Supreme Court: “if there was a reasonable, legal alternative to violating the law, a chance

both to refuse to do the criminal act and also to avoid the threatened harm, the [necessity

defense] will fail.” Bailey, 444 U.S. at 410 (internal quotations and citations omitted).

For this defendant, the necessity defense fails to justify his unlawful acts.

II. Whether it is the Defendant’s Intended Outcome or Not, Admitting Irrelevant

and Unfairly Prejudicial Evidence Will Result in the Risk of Improper Jury
Nullification.

The government anticipates the defendant may seek to introduce evidence

regarding the alleged environmental implications of issuing oil and gas leases, including

evidence on global warming, climate change, the efficacy of BLM’s land use plans, and

the BLM’s oil and gas lease auction procedures. Such evidence should be precluded from

introduction at this trial because it is neither relevant to any of the elements of the

offenses charged, nor a defense that can be lawfully raised. The only purpose the

evidence would serve is to encourage improper jury nullification. These global and far-

reaching issues are a matter of much debate. That debate would not aid the jury in its

determination of whether the defendant committed the violations alleged in the

Indictment. Such evidence and argument is for a different forum, not for trial in this case.

The Tenth Circuit law on this subject is clear. “There is no right to jury

nullification. It is by no means a right or something that a judge should encourage or

permit if it is within his authority to prevent.” Crease v. McKune, 189 F.3d 1188, 1194

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(10th Cir. 1999)(internal quotations and citations omitted). Indeed, the case law

uniformly rejects jury nullification as a valid defense in criminal trials. Zal v. Steppe, 968

F.2d 924, 930 (9th Cir.)(concurring opinion), cert denied, 113 S.Ct. 685 (1992)

(defendants are not entitled to present evidence or argument solely to promote jury

nullification; verdicts must be based on the law and the evidence, not on jury

nullification); United States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996)(“[A]n

unreasonable jury verdict . . . is lawless, and the defendant has no right to invite the jury

to act lawlessly. Jury nullification . . . is not a right, either of the jury or of the

defendant”); Scarpa v. Dubois, 38 F.3d 1, 11 (1st Cir. 1994)(“Defense counsel may not

press arguments for jury nullification in criminal cases”); United States v. Trujillo, 714

F.2d 102, 105 (11th Cir. 1983)(“[J]ury nullification argument would have encouraged the

jurors to ignore the court’s instruction and apply the law at their caprice. While we

recognized that a jury may render a verdict at odds with the evidence or the law, neither

the court nor counsel should encourage jurors to violate their oath.”); United States v.

Edwards, 101 F.3d 17, 19 (2nd Cir. 1996) (holding good motives do not nullify a

defendant’s violation of the law and a jury should not be encouraged to consider such

arguments).

Given the public statements made by the defendant about the upcoming trial in this

case, the United States believes that the defendant may seek to turn the trial into a

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referendum on national environmental policy. For example, when speaking to a gathering

of television and newspaper reporters the defendant said:

I’d like to eventually see a trial with a jury of my peers where we can really
expose the deeper injustices in the system that consistently chooses the short-
term profits of a few over the lives and well-being of many. We can use the
trial to really address our moral imperative to defend a livable future.

John Hollenhorst, Environmental activists pleads not guilty to disrupting auction,

KSL-TV, April 28 2009, http://www.ksl.com/?nid=148&sid=6302709.

Rule 402 of the Federal Rules of Evidence prohibits the admission of irrelevant

evidence. Rule 401 defines relevance as evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the case more

probable than it would be without the evidence. Fed. R. Evid. 401. While the issues on

which the defendant comments are understandingly important for public debate, evidence

of the executive’s policy decisions and their alleged impact on the environment are not

issues of consequence at this trial and do not constitute the makings of a valid defense. If

a defense does not exist as a matter of law, evidence in its support is not relevant to the

case.7 United States v. Lamberty, 778 F.2d 59, 61 (1st Cir. 1985) (holding that relevant

7
Even if the Court decided that evidence concerning the environmental impact of issuing
oil and gas leases was relevant, the Court should exclude that testimony under Rule 403 of the
Federal Rules of Evidence because its slight probative value would be substantially outweighed
by the danger of undue delay and confusion of the issues. It would require a lengthy presentation
of technical evidence by both the defendant and the government. Such evidence would tend to
confuse the main issues regarding the alleged criminal violation and would unduly complicate
and delay the trial.

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evidence in a criminal case “consists of elements of the offense charged and any relevant

defenses to defeat criminal liability”).

The sole question for this trial is whether the defendant knowingly committed the

crimes charged in the Indictment. The fundamental issues, then, for the jury to determine

are whether the defendant (1) knowingly interfered with the competitive bidding process

for the sale of federal oil and gas leases at the BLM’s December auction when he bid on

and purchased oil and gas leases, and (2) whether the defendant made a false statement of

a material fact when he filled out his Bidder Registration Form certifying that he had

good faith intention to acquire an oil and gas lease. The evidence introduced at trial

should be limited to facts that tend to prove or disprove these elements. United States v.

Rith, 164 F.3d 1323, 1338 (10th Cir. 1999) (jury’s role is to apply the law to the facts of

the case).

The only purpose for the introduction of the defendant’s theories on global

warming and climate justice, which have no bearing on the elements of the offenses

charged, will be to improperly inflame or confuse the jury. Accordingly, at trial, defense

counsel should focus the jury’s attention on the facts and not try to confuse it with appeals

based on emotion, sympathy or other similar considerations. See Sparf & Hansen v.

United States, 156 U.S. 51 (1895) (holding it improper for the defendant in any way to

suggest to the jury it should acquit for reasons beyond the facts and the law).

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Also, allowing the defendant to introduce evidence about the implications of the

executive’s environmental policy risks carving out an exception or adding an additional

element to the criminal statutes with which the defendant is charged. If the defendant is

allowed to ask the jury to excuse his otherwise criminal behavior because of the alleged

wrongdoing or imprudence of others, then the government will be required to prove, in

addition to the elements that constitute the offense, that the policy to which the defendant

objects is sound and proper. Surely, Congress did not intend to create such a safe harbor

under the statutes charged.

Similarly, the Court should also preclude the defendant from introducing evidence,

making an argument, or otherwise mentioning the potential penalties he faces if

convicted. The defendant should not be permitted to argue that his conduct does not rise

to the level of a criminal violation, that the crimes alleged in the Indictment should not be

felonies, or that the stigma of a felony conviction would otherwise punish him too

severely. The potential penalties faced by the defendant are irrelevant to the jury’s

determination of guilt or innocence. Rogers v. United States, 422 U.S. 35, 40 (1975)

(juries must reach their verdicts without regard to what sentence might be imposed);

United States v. Jones, 933 F.2d 807, 811 (10th Cir. 1991) (improper to inform the jury of

the defendant’s possible punishment).

It is within the Court’s authority to preclude the defendant from pressing for jury

nullification at trial. Indeed, the Court should act to prevent the introduction of evidence

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that would improperly inflame or confuse the jury. See United States v. Young, 470 U.S.

1, 7-10 (1985) (holding that court has duty to prevent counsel from making improper

arguments to the jury, including those that are designed to divert the jury from its duty to

decide the case on the facts and the law).

*****

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CONCLUSION

The Court should bar the defendant from presenting the necessity defense as it is

inapplicable on its face. Alternatively, the Court should take the defendant’s response to

this motion as his written offer of proof on the four requirements of the necessity defense,

and find that he has not met the stringent burden of that defense. Moreover, the court

should order that the defendant is precluded from presenting evidence and argument that

creates an undue risk of jury nullification.

For the foregoing reasons, the United States asks the Court to grant its motion in

limine .

SUBMITTED this 14 th day of May, 2009.

BRETT L. TOLMAN
United States Attorney

/s/ John W. Huber

John W. Huber
Assistant United States Attorney

/s/ Scott B. Romney

Scott B. Romney
Assistant United States Attorney

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