                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    September 14, 2012

                                                                        Elisabeth A. Shumaker
                                TENTH CIRCUIT                               Clerk of Court
                       ___________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
v.                                                           No. 11-4151
TIM DeCHRISTOPHER,

      Defendant-Appellant.
                  ___________________________________
     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                        DISTRICT OF UTAH
                    (D.C. No. 2:09-CR-00183-DB-1)
                ____________________________________

Ronald James Yengich, Yengich, Rich & Xaiz, (Elizabeth Hunt, Elizabeth Hunt LLC,
and Patrick A. Shea, Patrick A. Shea P.C., with him on the brief), Salt Lake City, Utah,
for Defendant-Appellant.

Dave Backman, Assistant United States Attorney (David B. Barlow, United States
Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
                     ____________________________________

Before BRISCOE, Chief Circuit Judge, BALDOCK, and HOLMES, Circuit
Judges.
                ____________________________________

BALDOCK, Circuit Judge.
                  ____________________________________

      Defendant Tim DeChristopher entered a Bureau of Land Management (BLM) oil

and gas lease auction in Salt Lake City, Utah, by representing he was a bidder. His

purpose was to disrupt the auction and call attention to the potential environmental harms
of drilling on the leases. He proceeded to drive up the auction prices and ultimately won

almost $1.8 million in bids, for which he was unable to pay. A jury convicted Defendant

of interfering with the provisions of Chapter 3A of the Federal Onshore Oil and Gas

Leasing Reform Act, in violation of 30 U.S.C. § 195(a)(1), and making a false statement

or representation in violation of 18 U.S.C. § 1001.1 He now appeals, raising eight

separate issues related to his conviction. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm.

                                             I.

       Federal law requires BLM offices in each state with eligible lands to auction off

oil and gas leases on a quarterly basis. 30 U.S.C. § 226(b)(1)(A). At these auctions, the

minimum bid is two dollars per acre, 43 C.F.R. § 3120.1-2(c), but the amount of the

winning bid can vary significantly. In addition to the final auction price, successful

bidders must pay an annual rental of $1.50 per acre per year for the first five years of the

lease ($2 per acre per year thereafter) and pay a royalty of 12.5 percent on the oil or gas

produced from the lease. 30 U.S.C. § 226(b)(2)(A)(i), (d).

       In December 2008, the BLM office in Salt Lake City, Utah, held an auction for

leases on 131 parcels of BLM-managed land located in Utah. The decision to allow


       1
          The first of these statutes makes it “unlawful for any person . . . to organize or
participate in any scheme, arrangement, plan, or agreement to circumvent or defeat the
provisions of this chapter [Title 30, Chapter 3A] or its implementing regulations.” 30
U.S.C. § 195(a)(1). The second statute subjects to a fine or imprisonment “whoever, in
any matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully . . . makes any materially
false, fictitious, or fraudulent statement or representation.” 18 U.S.C. § 1001(a).

                                           -2-
drilling on these parcels sparked significant controversy, and by the date of the auction

individuals had filed administrative challenges to all 131 parcels. Additionally, two days

before the auction, environmental groups filed suit in federal court seeking a temporary

restraining order to prevent leases from issuing on seventy-seven of the parcels. See S.

Utah Wilderness Alliance v. Allred, 2009 WL 765882 (D.D.C. January 17, 2009)

(unpublished). Despite these challenges, the auction went forward as planned. On the

day of the auction, demonstrators gathered outside the BLM office in protest.

       Defendant, a student at the University of Utah, arrived at the BLM office

intending to participate in the protest. He walked from one end of the protest to the other,

and then entered the BLM office. He soon decided protesting would not have much of an

impact and wanted to “take stronger action to really waive [sic] that red flag and see what

was going on in there.” Appellant’s App., vol. II at 802. Defendant therefore entered the

building, where a BLM employee asked him if he was a bidder, observer, or member of

the media. Defendant said he was a bidder. The employee told Defendant to complete

and sign a bidder registration form. Defendant did so, sitting at the registration table for

approximately two or three minutes. By signing the form, Defendant “certif[ied] that any

bid submitted by the undersigned . . . is a good faith intention . . . to acquire an oil and

gas lease on the offered lands.” Id. at 406. The form also notified him, “It is a crime

under 18 U.S.C. 1001 and 43 U.S.C. 1212 for any person to knowingly and willfully

make any false, fictitious or fraudulent statements or representations as to any matter

within its [sic] jurisdiction.” Id. The BLM employee then gave Defendant a bidder

paddle, and Defendant proceeded to the auction room.

                                           -3-
      About twenty minutes into the auction, Defendant began bidding on parcels. After

driving up prices on more than ten parcels without winning any bids, Defendant finally

won an auction for approximately $500. Later he won another auction for approximately

$25,000. After winning this bid, Defendant consistently bid until he won each of the next

twelve auctions. BLM officials suspended the auction because of Defendant’s actions,

which had caused some legitimate bidders to leave the auction. Defendant’s winning

bids on the fourteen parcels of land totaled $1,797,852.25, and BLM policy required him

to tender a down payment of $81,238 by 4:30 p.m. on the day of the auction. Defendant

told a BLM special agent that he was unable to pay that amount. Defendant contacted a

fundraiser later that day in an to attempt to raise the money, but he never completed the

payment.2

      Based on this conduct, a grand jury issued a two-count indictment against

Defendant.    Count 1 charged him with organizing or participating in a scheme,

arrangement, plan, or agreement to circumvent or defeat the provisions of the Federal

Onshore Oil and Gas Leasing Reform Act in violation of 30 U.S.C. § 195(a)(1). Count 2

charged him with making a false statement in violation of 18 U.S.C. § 1001. Prior to

trial, the Government moved in limine to prevent Defendant from presenting a necessity

defense. Defendant responded by filing a written proffer of the evidence he would

introduce in support of a necessity defense.            Defendant attached voluminous

documentation of the BLM’s purported violations of various environmental laws and

      2
         Defendant asserts on appeal that he tried to make this payment but the BLM
refused to accept it because the entire auction had been cancelled. This factual dispute is
not relevant to the issues on appeal.
                                           -4-
regulations as well as evidence about environmental issues such as global warming. The

district court granted the motion in limine, concluding “the evidence is insufficient as a

matter of law to support the necessity defense.” United States v. DeChristopher, 2009

WL 3837208 at *5 (D. Utah, Nov. 16, 2009) (unpublished). Defendant then filed a

motion for discovery regarding selective prosecution, arguing the Government treated

him differently than other persons who failed to pay for their oil and gas leases.

Defendant attached tables showing other successful bidders who did not pay for the

leases they won.    The district court denied this motion, concluding Defendant had

produced no evidence of discriminatory effect. The court found no evidence showing the

other persons committed similar offenses. The court also noted that Defendant won

significantly more parcels and acres than the other listed bidders. The court did not reach

whether Defendant had produced adequate evidence of discriminatory intent.

      At trial, the Government presented the following evidence.          First, the BLM

employee who tended the auction registration table testified as follows: “He came in. He

came up to the table. I said are you a bidder, an observer or a member of the media? He

told me he was a bidder.” Appellant’s App., vol. II at 499. She also testified to watching

Defendant read and fill out the bidder registration form. Second, the BLM employee who

conducted the auction testified as to the manner in which the auction was conducted.

Third, a BLM law enforcement ranger testified that his suspicions were aroused when he

saw Defendant enter the auction because Defendant’s age and clothing did not fit the

description of most bidders. The ranger called BLM Special Agent Dan Love’s attention

to Defendant as someone to be watched.

                                           -5-
      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

                                           -6-
“make a stand” and keep bidding. Id. at 577.

       Fifth, another BLM employee who assisted with the auction testified that the other

bidders were very upset by Defendant’s actions. She also testified that the BLM did not

immediately restart the auction after Defendant left the room because “some bidders may

have already left the sale and the confidentiality is gone,” which hurt the competitiveness

of the auction. Appellant’s App., vol. II at 623–24.

       Finally, the Government called Kent Hoffman, the BLM’s Utah deputy state

director for lands and minerals, who testified regarding the work involved in preparing

for the lease auction. He testified:

       A lease auction typically begins five or six months before the actual
       auction, where the industry nominates parcels and we receive the
       expression of interest, and then those expressions . . . are screened by my
       staff and then sent to the field office where there are environmental reviews
       and compliance with things like the National Historic Preservation Act, the
       Endangered Species Act, several other things are completed, and then prior
       to the auction the environmental documents are signed.

Id. at 651–52. After Mr. Hoffman’s testimony, Defendant again sought to introduce

evidence the BLM violated environmental laws by offering the leases for oil and gas

drilling. Defendant argued Hoffman’s testimony opened the door to such evidence. The

district court excluded the evidence, saying it “would confuse the jury and it would be

misleading. It would be in an area that is so lacking in relevance, if it is relevant, that is

has the potential for being improper under Rule 403 of the Rules of Evidence.”

Appellant’s App., vol. II at 662. After Defendant made a written proffer of the evidence

he sought to present, the court again said it was unwilling to “open[] this case into a vast

exploration of oil and gas lease policy by the United States government” and the related

                                            -7-
challenges to the auction. Id. at 685.

       The defense showed the jury a 22-minute video of the auction, which frequently

panned toward Defendant and showed him bidding on a number of leases. Defendant

himself also testified. On cross-examination, the Government questioned him regarding

statements he made to the public press and read into evidence some of Defendant’s public

statements. In one interview, he said, “I was there to stop that auction. Even though I

didn’t have a specific plan I felt that I could be powerful enough to stop it. And I think

that mindset is what allowed me to stop it.” Id. at 827. In another interview, he said, “I

just decided I wanted to go inside to cause a bigger disruption.” Id. at 829. In another,

he said, “I had signed a piece of paper downstairs saying it was a federal offense to bid

without intent to pay, but I decided I could live with those consequences, and I couldn’t

turn my back on this chance to make an impact.” Id. at 836. Defendant admitted on the

stand that he “posed” as a bidder and “represented” to the BLM employee at the

registration table that he was a bidder. Id. at 831. He said he did this because he thought

it was the only way to get into the auction, and he said the employee only asked if he was

a “bidder,” not whether he was a “bidder, observer, or member of the media.” He also

admitted that after he won his second bid he “was attempting to win the leases,” even

though he knew he could not afford them. Id. at 841.

       Defendant moved for judgment of acquittal under Federal Rule of Criminal

Procedure 29 at both the close of the Government’s case and the close of all the evidence.

The district court denied the motion each time. The jury then convicted Defendant on

both counts.      The district court sentenced Defendant to twenty-four months’

                                           -8-
imprisonment and three years’ supervised release.3

                                            II.

       Defendant appealed, raising a host of issues, some of which he did not raise

below. Although he only lists three issues, we can discern eight distinct arguments on

appeal. They are as follows: (1) the evidence was insufficient to convict Defendant on

Count 1 because the statute requires multiple parties, (2) the evidence was insufficient to

convict Defendant on Count 1 because the statute requires awareness of specific

provisions of the Leasing Reform Act, (3) the evidence of Defendant’s intent to bid in

bad faith was insufficient to sustain Count 2, (4) the jury instructions constructively

amended the indictment, (5) the district court improperly limited inquiry into the legality

of the auction, (6) the district court improperly denied Defendant the opportunity to

present a necessity defense, (7) the Government selectively prosecuted Defendant in

violation of the Equal Protection Clause, and (8) the district court sentenced Defendant to

punish him for exercising his First Amendment rights. Because the standard of review

varies, we will discuss the appropriate standard under each issue.

                                            A.

       We first address Defendant’s argument that the evidence was insufficient to

convict him on Count 1 because it did not demonstrate group activity. He argues 30

U.S.C. § 195(a)(1) requires more than one person, similar to a conspiracy charge. When


       3
        The district court’s judgment does not indicate whether the sentence was twenty-
four months on each count, to be served concurrently, or twelve months on each count, to
be served consecutively. At oral argument, defense counsel said he understood the
sentence to be twenty-four months on each count.
                                           -9-
reviewing the sufficiency of the evidence, we ask whether “a reasonable jury could find

the defendant guilty beyond a reasonable doubt, given the direct and circumstantial

evidence, along with reasonable inferences therefrom, taken in a light most favorable to

the government.” United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) (quoting

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997)). Defendant did not raise

this specific argument in his Rule 29 motion, meaning we review it only for plain error.4

United States v. Schene, 543 F.3d 627, 636 (10th Cir. 2008). That standard requires

Defendant to demonstrate (1) error that is (2) plain, (3) affects substantial rights, and (4)

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Flonnory, 630 F.3d 1280, 1288 (10th Cir. 2011). Defendant cannot meet

this burden.

       “An error is plain if it is clear or obvious under current, well-settled law. In


       4
          Defendant’s sufficiency argument is somewhat baffling at first glance because
the jury instructions did not require group activity and Defendant never objected to the
jury instructions for failing to require group activity. That is, Defendant is arguing the
Government failed to prove a required element, but that element was not part of the jury
instructions. Despite this awkward litigation strategy, however, Defendant is probably
entitled to plain error review of his sufficiency claim. Although the question is not
settled in our circuit, we have said in dicta that the measure for a sufficiency challenge is,
with one limited exception, whether a properly instructed jury could convict, rather than
whether the jury as actually instructed could convict. United States v. Nacchio, 519 F.3d
1140, 1157 (10th Cir. 2008), vacated in part on other grounds 555 F.3d 1234, 1236 (10th
Cir. 2009) (en banc). We said in Nacchio, “[W]hen asking what facts the jury had to find
in order to convict, we look to the elements of the crime as defined by law, except that if
the government did not object to jury instructions containing additional requirements, it is
required to prove those too.” Id. (emphasis added). If it is proper to look to the statute,
rather than the jury instructions, in weighing the sufficiency of the evidence, Defendant
may challenge the sufficiency of the evidence despite his failure to challenge the jury
instructions. We need not definitively decide the issue, because Defendant cannot prevail
on his sufficiency claim under plain error review.
                                            - 10 -
general, for an error to be contrary to well-settled law, either the Supreme Court or this

court must have addressed the issue.” United States v. Thornburgh, 645 F.3d 1197, 1208

(10th Cir. 2011) (citation and internal quotation marks omitted). Defendant cannot

marshal any case law, even from other circuits, that supports his position. The lack of

case law is unsurprising, given that to the parties’ knowledge this is the first time the

Government has prosecuted a person under 30 U.S.C. § 195(a). Nor can Defendant point

us to cases interpreting similar statutes because Congress has not employed similar

language elsewhere in the United States Code.          Defendant argues the “purpose” of

Leasing Reform Act supports his interpretation, but cites only articles, rather than

legislative history. Finally, Defendant points us to two cases, neither of which have any

application here. The first case, H.J. Inc. v. Nw. Bell Tele. Co., 492 U.S. 229, 244

(1989), discussed the term “organized crime,” and rejected the argument that the federal

RICO statute was limited to “organized crime in the traditional sense.” The second case,

United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir. 1995), interpreted the

Sentencing Guidelines’ use of the word “organizer.” The court in Tejada-Beltran, said an

organizer is “at bottom a person who forms diverse elements into a whole consisting of

interdependent, coordinated parts, geared for concerted action.” Id. This definition does

not rule out individual activity, so it provides Defendant little help.

       Nor does the statute’s language unambiguously require group activity. See United

States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (concluding that even in “the

absence of circuit precedent” a district court’s error was plain when a guideline “clearly

and obviously” was limited to a single interpretation).          Section 195(a)(1) makes it

                                            - 11 -
unlawful for any person “to organize or participate in any scheme, arrangement, plan, or

agreement to circumvent or defeat the provisions of this chapter or its implementing

regulations . . . .”   The statute first requires the defendant either to “organize” or

“participate.” Webster’s Third New International Dictionary defines “organize” as “to

unify into a coordinated functioning whole: put in readiness for coherent or cooperative

action,” “to arrange by systematic planning and coordination of individual effort,” or “to

put in a state of order.” Webster’s Third New Int’l Dictionary 1590 (1981). It defines

“participate” as “to take part in something (as an enterprise or activity) usu[ally] in

common with others.” Id. at 1646. Although participation is usually in common with

others, it need not necessarily involve other persons. And a person can “organize”

something entirely on one’s own. So these first two words do not require group activity.

      Next, the statute requires the organization or participation to involve a “scheme,

arrangement, plan, or agreement.” An “agreement,” of course, requires two or more

people. But the other three terms do not.5 Black’s Law Dictionary defines “scheme” as

“[a]n artful plot or plan, usu[ally] to deceive others.” Black’s Law Dictionary 1462 (9th

ed.). Webster’s defines “arrangement” as “a structure or combination of things arranged

in a particular way for a specific purpose” or “a mutual agreement or understanding (as

between persons or nations).”     Webster’s Third New Int’l Dictionary 120 (1981).

Finally, Webster’s defines “plan” as “a method of achieving something: a way of

      5
         Defendant essentially concedes this point when he notes that Congress could
have imposed individual liability by making it a crime “for a person to scheme, arrange,
or plan to circumvent or defeat” the provisions of the Leasing Reform Act. Appellant’s
Br. at 19 n.14. He hangs his hat on the addition of the words “organize” and “participate
in.”
                                          - 12 -
carrying out a design.” Id. at 1729. To convict Defendant under this statute, the jury

needed only to conclude that Defendant “arrange[d] by systematic planning” a scheme,

plot, or plan to interfere with the provisions of Title 30, Chapter 3A. The ordinary

meaning of these words does not require more than one person. In short, we cannot

conclude under plain error review that the statute requires group activity. Thus, the

evidence was sufficient to convict Defendant on Count 1.

                                             B.

       Defendant next argues the evidence was insufficient because the Government

presented no evidence that Defendant “was aware of any of the provisions of chapter 3A

of Title 30 or the implementing regulations.” Appellant’s Br. at 20. Although subsection

195(a)(1) does not include the word “knowingly,” the subsection that specifies the

penalty for a violation of 195(a) applies only to persons who “knowingly violate[] the

provisions of subsection (a).” § 195(b). Thus, a conviction under the statute requires a

knowing violation. Defendant would read the word “knowing” to require that Defendant

“sought to circumvent or defeat” at least two specific provisions of Title 30, chapter 3A.

Jury Instruction 13 instructed the jury that “‘[k]nowingly’ means that the action was done

voluntarily and intentionally and not because of mistake or accident.” Appellant’s App.,

vol. I at 371. Defendant objected to this instruction in the district court, and argued in his

Rule 29 motion that the evidence was insufficient without proof that he knew of specific

provisions of the statute. Id., vol. II at 769, 872–73. We therefore review the sufficiency

of the evidence on this point de novo. Sturm, 672 F.3d at 896.

       We cannot accept Defendant’s argument that the statute required him to know the

                                            - 13 -
specific statutory or regulatory provisions he was violating. In Liparota v. United States,

471 U.S. 419, 420 (1985), the Government prosecuted the defendant under a statute

providing that “whoever knowingly uses, transfers, acquires, alters, or possesses coupons

or authorization cards in any manner not authorized by this chapter or the regulations,” 7

U.S.C. § 2024(b)(1), was subject to a fine or imprisonment. The Government in Liparota

argued that the defendant need not know his actions were illegal, but need only know the

facts that constituted the crime. Liparota, 471 U.S. at 423. The Supreme Court rejected

this view, and held the Government must prove “that the defendant knew that his

acquisition or possession of food stamps was in a manner unauthorized by statute or

regulations.” Id. at 433. Nevertheless, the Court held that “the Government need not

show that he had knowledge of specific regulations governing food stamp acquisition or

possession.”   Id. at 434 (emphasis added).        Similarly, we have held that a statute

punishing a person who “knowingly enters into a marriage for the purpose of evading any

provision of the immigration laws,” 8 U.S.C. § 1325(c), does not require the Government

“to prove the defendant knew of the specific immigration statute allegedly violated.”

United States v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005) (emphasis added).

      Here, the Government presented the jury with ample evidence that Defendant

knew his actions would “circumvent or defeat” the statutes and regulations governing oil

and gas leases. This evidence included Defendant’s statements that he was “there to stop

that auction,” that he wanted to cause a disruption, and that he intended to win leases for

which he could not pay. The jury also heard that Defendant asked Agent Love how much

trouble he was in and said he was prepared to deal with the consequences of his actions.

                                          - 14 -
A reasonable jury could conclude from these facts that Defendant knew his actions would

interfere with the statutory and regulatory provisions relating to oil and gas leases.

                                             C.

       Defendant next argues insufficient evidence of his intent to bid in bad faith

supported his conviction on Count 2. Because Defendant made this argument in his Rule

29 motion, we review it de novo. Sturm, 672 F.3d at 896. The false statement statute

applies to a person who “in any matter within the jurisdiction of the executive . . . branch

of Government of the United States, knowingly and willfully . . . makes any materially

false, fictitious, or fraudulent statement or representation.” 18 U.S.C. § 1001(a).

       The jury instructions informed the jury that, to convict Defendant on Count 2, it

must find “First, the defendant made a false statement or representation to the

government when he completed and signed a ‘Bidder Registration Form,’ and certified

that he had a good faith intention to acquire an oil and gas lease on lands offered for

auction by the United States.”6 Appellant’s App., vol. I at 372. Defendant argues the

Government presented no evidence indicating he actually intended to bid on the leases

when he signed the form. He says he only decided to bid about twenty minutes into the

auction.7 Thus, the argument goes, he did not knowingly make a false statement when he


       6
          This instruction does not reflect the facts entirely accurately because the bidder
registration form did not certify the intent to bid in good faith. It only certified that “any
bid submitted” would be in good faith. Appellant’s App., vol. I at 406. Defendant has
not, however, challenged the instruction on this basis.
       7
         Defendant’s representation to the BLM employee that he was a “bidder” was, by
Defendant’s own admission, a false representation. The jury instructions, however, only
instructed the jury regarding Defendant’s action in signing the bidder registration form.
                                            - 15 -
signed the form saying “any bid” he made would be a good faith bid because at that time

he did not intend to bid at all. Appellant’s App., vol. I at 406.

       A reasonable jury could decline to credit Defendant’s statements and find he

intended to bid in bad faith at the time he signed the form. Defendant’s testimony, and

his story to Agent Love, was that he posed as a bidder because he thought it was the only

way to get in and that he intended at first only to cause a disturbance in the auction. He

testified that the BLM employee at the registration table only asked him if he was a

“bidder.” The BLM employee, however, specifically recalled asking Defendant whether

he was a “bidder, observer, or member of the media.” Appellant’s App., vol. I at 178.

Based on this testimony, a reasonable jury could conclude Defendant posed as a bidder

not simply to gain entrance to the auction, which he could have done as an observer, but

in order to drive up the auction prices. The jury also heard evidence that Defendant

entered the auction in order to “take stronger action,” to “stop that auction,” and to “cause

a bigger disruption.” Id., vol. II at 802, 827, 829. Furthermore, a jury could conclude

Defendant’s very act of filling out the bidder registration form and acquiring a bidder’s

paddle was consistent with an intent to bid in the auction. That being so, the jury could

also conclude Defendant intended to bid in bad faith because he testified he never

intended to actually drill or develop the leases. Thus, the evidence was sufficient to

sustain Defendant’s conviction on Count 2.

                                             D.


So, as instructed, the jury could not convict Defendant on the basis of his false statement
that he was a bidder.
                                            - 16 -
       Defendant next argues the jury instructions constructively amended the indictment

in two ways. First, he argues they constructively amended Count 1 by omitting the

indictment’s allegations (1) that Defendant “represented himself as a bona fide bidder

when in fact he was not,” (2) that Defendant completed a bidder registration form

certifying his good faith intention to acquire an oil and gas lease, and (3) that Defendant

“bid on and purchased oil and gas leases that he had neither the intention nor the means

to acquire.”    Appellant’s App., vol. I at 33.         Second, he argues the instructions

constructively amended Count 2 by allowing conviction for a “false” statement even

though the indictment charged a “false and fraudulent” statement. We review de novo

whether the jury instructions constructively amended the indictment. United States v.

Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010).

       A constructive amendment to an indictment occurs “when the evidence presented

at trial, together with the jury instructions, so alters the indictment as to charge a different

offense from that found by the grand jury.” United States v. Farr, 536 F.3d 1174, 1180

(10th Cir. 2008) (internal quotation marks and alterations omitted). “To constitute a

constructive amendment, the district court proceedings must modify an essential element

of the offense or raise the possibility the defendant was convicted of an offense other than

that charged in the indictment.” United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th

Cir. 2002). Here, the three allegations omitted from Count 1 were not elements essential

to the offense. Nor did the omission of these allegations result in Defendant being

convicted of an offense other than that described in 30 U.S.C. § 195(a)(1).                  So

Defendant’s first argument falls flat.

                                             - 17 -
      Defendant’s second argument is also a non-starter. The basic issue is whether the

Government could charge a “false and fraudulent” statement, yet only prove a false or

fraudulent statement.   “It is hornbook law that a crime denounced in the statute

disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in

the disjunctive.” United States v. Gunter, 546 F.2d 861, 868–69 (10th Cir. 1976). See

also United States v. Powell, 226 F.3d 1181, 1192 n.4 (10th Cir. 2000). So the jury

instructions did not amend the indictment.

                                              E.

      Next, Defendant asserts the district court abused its discretion by limiting his

presentation of evidence regarding the alleged illegality of the BLM auction. Defendant

sought both to cross-examine Mr. Hoffman regarding the BLM’s compliance with federal

laws and to introduce additional evidence, including evidence that the BLM (1) failed to

provide the standard three-month notice period for the leases, (2) inadequately conducted

the “normal studies” as to the environmental and archeological impact of the leases, (3)

failed to comply with the National Environmental Policy Act, the National Historic

Preservation Act, and the Federal Land Policy and Management Act, and (4) disregarded

concerns expressed by the National Park Service and the Environmental Protection

Agency. Appellant’s App., vol. I at 287–89. Defendant argued in the district court that

the evidence was relevant to his defense on Count 1 and that the Confrontation Clause

gave him a right to meaningfully cross-examine Mr. Hoffman.            The district court

excluded the evidence. We ordinarily review evidentiary rulings for abuse of discretion,

but to the extent Defendant asserts the exclusion of evidence violated his constitutional

                                             - 18 -
rights, we review the ruling de novo. United States v. Markey, 393 F.3d 1132, 1135

(10th Cir. 2004).

       “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment

or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the

Constitution guarantees criminal defendants ‘a meaningful opportunity to present a

complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.

Trombetta, 467 U.S. 479, 485 (1984)) (citations omitted). Thus, “the Confrontation

Clause guarantees an opportunity for effective cross-examination,” but “not cross-

examination that is effective in whatever way, and to whatever extent, the defense might

wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). “[T]rial judges retain wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on

cross-examination based on concerns about . . . prejudice, confusion of the issues, . . . or

interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986). “[W]e will reverse a district court’s decision excluding

evidence if, but only if, the proffered evidence is both relevant and material . . . .” United

States v. Hernandez-Hernandez, 519 F.3d 1236, 1238–39 (10th Cir. 2008).

       Here, the district court correctly excluded the evidence as irrelevant. Whether the

BLM complied with all applicable environmental regulations in conducting the auction

has nothing to do with whether Defendant organized a scheme, arrangement, or plan to

circumvent or defeat the provisions of the Onshore Leasing Reform Act relating to oil

and gas auctions. Defendant was essentially trying to present a defense akin to the

equitable defenses of in pari delicto or unclean hands. The statute does not allow such a

                                            - 19 -
defense. Nor do the BLM’s allegedly illegal actions negate any element of the offense.

Thus, any evidence of the BLM’s noncompliance with federal law or its environmental

failures was irrelevant to Defendant’s guilt or innocence, and the district court properly

excluded the evidence.

                                            F.

       Next, Defendant argues the district court erred in preventing him from presenting

a necessity defense. “A criminal defendant is entitled to an instruction on his theory of

defense provided that theory is supported by some evidence and the law.” United States

v. Haney, 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc). The Supreme Court has said

it is an “open question whether federal courts ever have authority to recognize a necessity

defense not provided by statute.” United States v. Oakland Cannabis Buyers’ Co-op.,

532 U.S. 483, 490 (2001). Nevertheless, our circuit continues to assume such a defense

exists. United States v. Patton, 451 F.3d 615, 638 (10th Cir. 2006). To succeed on a

necessity defense, a defendant must show “(1) there is no legal alternative to violating the

law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship exists

between defendant’s action and the avoidance of harm.” United States v. Baker, 508

F.3d 1321, 1325 (10th Cir. 2007) (internal alterations and ellipsis omitted). We review a

district court’s refusal to instruct on a specific defense, like its decision to exclude

evidence, for abuse of discretion. Id.

       Here, the district court did not abuse its discretion in concluding the evidence was

insufficient to support a necessity defense. We need go no further than the first prong—

the absence of a legal alternative. The harm Defendant intended to prevent was the

                                           - 20 -
environmental harm that would stem from the sale and delivery of the leases. One

obvious legal alternative for preventing this harm was to file or join in a lawsuit to enjoin

the issuance of the leases. In fact, a number of environmental groups had filed such a

lawsuit two days before the sale, once they realized nothing else would halt the auction.

Defendant responds that a statute required the leases to issue within 60 days following

full payment by the successful bidders. 30 U.S.C. § 226(b)(1)(A). True enough, but a

court could (and did) prevent the BLM from issuing the leases by issuing a temporary

restraining order or injunction. See Allred, 2009 WL 765882. Because Defendant had

this legal (and more effective) means of preventing the leases from issuing, he was not

entitled to present a necessity defense to the jury.

                                              G.

       Defendant’s next argument is that the district court erred in denying his motion for

discovery on the issue of selective prosecution. “We review de novo the district court’s

grant or denial of a defendant’s selective-prosecution discovery motion.” United States

v. Deberry, 430 F.3d 1294, 1298 (10th Cir. 2005). A criminal defendant claiming

selective prosecution must show “that the federal prosecutorial policy had a

discriminatory effect and that it was motivated by a discriminatory purpose.” United

States v. Armstrong, 517 U.S. 456, 465 (1996) (internal quotation marks omitted). In

order to obtain discovery concerning selective prosecution, Defendant must satisfy the

“rigorous standard” of making “a credible showing” of both discriminatory effect and

discriminatory intent. Id. at 468, 470.

       Defendant focuses most of his argument on the newly-asserted theory that the

                                            - 21 -
Government prosecuted him for the exercise of his free speech rights.             Because

Defendant did not make this argument in the district court, the Government argues we

should apply plain error review.      But we need not even reach Defendant’s First

Amendment argument, because it only goes to the Government’s discriminatory intent,

not to whether the prosecution had a discriminatory effect. Like the district court, we can

resolve this case on the discriminatory effect prong. To show a discriminatory effect,

Defendant may not simply point out the similarities he shares with the other unprosecuted

bidders.   Instead, he must show the other defendants’ “circumstances present no

distinguishable legitimate prosecutorial factors that might justify making different

prosecutorial decisions with respect to them.” Deberry, 430 F.3d at 1301 (quoting United

States v. Olvis, 97 F.3d 730, 744 (4th Cir. 1996)). Defendant has not met this standard.

The tables he submitted show only one other bidder who, like Defendant, failed to submit

both a down payment and a later payment in full. That other bidder had won three

parcels totaling about 1,800 acres at an auction in New Mexico. Defendant, by contrast,

won fourteen parcels totaling around 22,600 acres at a Utah auction. Furthermore,

Defendant submitted no evidence that the other bidder had bid with the purpose of

disrupting or stopping the sale. Therefore, Defendant did not meet the threshold for

discovery related to selective prosecution. The district court properly denied the motion.

                                            H.

       Finally, mixed in with his argument about selective prosecution, Defendant raises

the specter of retaliatory sentencing. He claims the district court imposed a heavier

sentence based on his exercise of his First Amendment rights. He bases this argument on

                                          - 22 -
some of the district court’s statements during the sentencing hearing. The court said:

       If this hadn’t been a continuing trail of statements by Mr. DeChristopher
       about his advocacy, as he calls it civil disobedience, and that he will
       continue to fight, and I am prepared to go to prison, then others are going to
       have to be prepared to go with me, that causes me to feel under the
       sentencing laws before me that a term of imprisonment is required.

Appellant’s App., vol. II at 964. The court also mentioned Defendant’s decision to “step

to any bank of microphones that he could find to give a speech . . . and advocate that it

was fine for him to break the law.” Appellant’s App., vol. II at 963.

       Defendant cites a number of cases from our sister circuits concluding that a district

court may not constitutionally impose a criminal sentence “based to any degree on

activity or beliefs protected by the [F]irst [A]mendment.” United States v. Lemon, 723

F.2d 922, 938 (D.C. Cir. 1983). See also United States v. Rosenberg, 806 F.2d 1169,

1179 (3d Cir. 1986) (“[T]he imposition of a sentence on the basis of a defendant’s beliefs

would violate the [F]irst [A]mendment’s guarantees.”); United States v. Bangert, 645

F.2d 1297, 1308 (8th Cir. 1981). Although these cases are correct that First Amendment

protections apply at sentencing, see Dawson v. Delaware, 503 U.S. 159, 168 (1992), their

use of the term “based on” is susceptible to interpretations that conflict with Supreme

Court precedent.

       A sentencing court “has always been free to consider a wide range of relevant

material.” Payne v. Tennessee, 501 U.S. 808, 820–21 (1991). Thus, the Supreme Court

has rejected the notion that the Constitution erects “a per se barrier to the admission of

evidence concerning one’s beliefs and associations at sentencing simply because those

beliefs and associations are protected by the First Amendment.” Dawson, 503 U.S. at

                                           - 23 -
165. In Dawson, the state trial court admitted evidence regarding the beliefs of the Aryan

Brotherhood, of which the defendant was a member, into the penalty phase of a jury trial.

Id. at 162. The Supreme Court rejected the defendant’s argument that the Constitution

forbids the consideration of any evidence concerning protected beliefs or activities at

sentencing. Id. at 164. In many cases, the Court said, “associational evidence might

serve a legitimate purpose in showing that a defendant represents a future danger to

society.” Id. at 166. One example of this would be membership in an organization “that

endorses the killing of any identifiable group.” Id. Nevertheless, the Court held that the

admission of the Aryan Brotherhood evidence violated the First Amendment because it

was “totally without relevance to [the defendant’s] sentencing proceeding.” Id. at 165.

The evidence was so limited that it only tended to prove the “abstract beliefs” of the

Aryan Brotherhood and the defendant. Id. at 166–67. The Court expressed concern that

the evidence was introduced “simply because the jury would find these beliefs morally

reprehensible.” Id. at 167.

       Dawson indicates, at the very least, that a court may impose a sentence “based on”

a defendant’s protected beliefs as long as those beliefs are “relevant to the issues

involved.” Id. at 164. Thus, the Fifth Circuit holds that a sentencing court may consider

a defendant’s beliefs if they are “sufficiently related to the issues at sentencing.” United

States v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005) (quoting Boyle v. Johnson, 93 F.3d

180, 183–85 (5th Cir. 1996)). The Simkanin court held a defendant’s belief in the

invalidity of federal tax laws was relevant to his tax crimes and “demonstrate[d] a

likelihood of recidivism.” Id. Similarly, the Ninth Circuit held that a district court could

                                           - 24 -
impose a sentence based on the defendant’s views where the court “made it clear that it

was increasing the sentence based on [the defendant’s] lack of remorse and his threat to

. . . the public when released.” United States v. Smith, 424 F.3d 992, 1016 (9th Cir.

2005). Because the need to promote respect for the law and afford adequate deterrence

were “legitimate sentencing factors under 18 U.S.C. § 3553(a),” Smith held the district

court could consider the Defendant’s views in imposing sentence. Id.

      Here, the district court considered Defendant’s beliefs for relevant purposes and

did not punish him for his speech. The court said, “I want to make clear that Mr.

DeChristopher had every right to make every pronouncement that I know of about

everything, and when he was convicted of a felony, to go out in front of this courthouse

and say whatever he said. He had the right to do that.” Appellant’s App., vol. II at 963.

And when the court imposed sentence, it noted it was “focusing primarily on respect for

the law and deterrence.” Id. at 966. The context makes clear that the court, far from

punishing Defendant for the content of his public statements, simply relied on those

statements to determine the sentence necessary to deter Defendant from future violations

and to promote respect for the law. Defendant’s statements that he would “continue to

fight” and his view that it was “fine to break the law” were highly relevant to these

sentencing factors.   So the district court did not violate the First Amendment by

considering Defendant’s public statements when imposing sentence.

      AFFIRMED.




                                         - 25 -
No. 11-4151, United States v. DeChristopher

BRISCOE, Chief Judge, concurring in part and dissenting in part.



       I respectfully dissent from Part II.A of the majority opinion. Of the eight

arguments DeChristopher advances in this appeal, I see merit only in his contention that

the evidence at trial was insufficient to convict him on Count 1 of the indictment.

Consequently, I would reverse the judgment of the district court as regards the conviction

on that count. I would otherwise affirm the judgment.

       Count 1 charged DeChristopher with violating Chapter 3A of the Federal Onshore

Oil and Gas Leasing Reform Act (FOOGLRA), 30 U.S.C. § 195(a)(1), which makes it

“unlawful for any person . . . to organize or participate in any scheme, arrangement, plan,

or agreement to circumvent or defeat the provisions of this chapter or its implementing

regulations.” 30 U.S.C. § 195(a)(1). Count 1 specifically alleged that “[o]n or about

December 19, 2008,” DeChristopher “did organize and participate in a scheme,

arrangement, plan, and agreement to defeat the provisions of [FOOGLRA] . . . by

knowingly interfering with the competitive bidding process of the sale of federal oil and

gas leases.” And at trial, Jury Instruction No. 13 outlined in the following manner the

essential elements of this alleged offense:

           The defendant is charged in Count 1 with a violation of [FOOGLRA] by
       interfering with the competitive bidding process of the December 19, 2008
       oil and gas lease auction. To find the defendant guilty of this offense you
       must be convinced that the United States has proved each of the following
       beyond a reasonable doubt:
               First, the defendant knowingly organized or participated in a
               scheme or plan; and
              Second, the scheme or plan was intended to circumvent or
              defeat the competitive bidding process of the sale of federal
              oil and gas leases.
          “Knowingly” means that the action was done voluntarily and
       intentionally and not because of mistake or accident.

Dist. Ct. Document 65, at 15 (Instruction No. 13).

       According to the majority, DeChristopher “is arguing the Government failed to

prove a required element,” i.e., “group activity,” “but that element was not part of the jury

instructions.” Op. at 10 n.4. I disagree. In challenging the sufficiency of the evidence

supporting his conviction on Count 1, DeChristopher argues that “[t]he statutory language

of the offense [he] was charged with and convicted of describes an anticipatory or

inchoate offense similar to conspiracy, the gravamen of which is multiple people

consorting to evade the laws governing the auction process.” Aplt. Br. at 18. More

specifically, he argues that “[t]he [statutory] terms ‘organize’ and ‘participate’ refer to

group or shared activity” and “would be superfluous if Congress had intended for

individual liability for individual intentions to violate the law.” Id. at 18-19. In turn, he

argues that “[t]here was no evidence presented . . . that [he] participated, organized, or

acted jointly or in concert with any other person in a scheme, arrangement, plan or

agreement to defeat any law.” Id. at 19.

       In my view, DeChristopher’s arguments are entirely consistent with, rather than

foreclosed by, the language of Jury Instruction No. 13. As noted, Instruction No. 13

specifically employed the statutory words “organized” and “participated.”

DeChristopher is now arguing that these words, which were not defined for the jury, can

                                               2
only be construed to encompass group activity, and that the government failed to present

any evidence of group activity.1

       Thus, in sum, the question posed by DeChristopher is whether the language of 30

U.S.C. § 195(a)(1), upon which Count 1 of the indictment and the jury instructions were

based, is aimed at group activity or whether a single person acting alone can violate the

statute. If proof of the latter is not enough, we must next address whether under plain

error DeChristopher’s conviction on count one can be upheld.

       The plain language of § 195(a)(1) reveals a distinct evidentiary shortfall in the

government’s case against DeChristopher. Congress did not make it unlawful to “engage

in conduct” that circumvents or defeats the provisions of FOOGLRA. Rather, it chose

words that commonly denote group activity, both in everyday language and other

statutory provisions. Here, it is undisputed that DeChristopher acted alone—a fact the

government and the majority confront by twisting the common understanding of

“organize” and “participate” to cover the conduct of a lone actor. This deficiency is fatal


       1
         As the majority correctly notes, it is unsettled in this circuit whether, in resolving
a defendant’s sufficiency-of-evidence challenge, we look to the elements of the crime as
outlined in the relevant statute, or instead to the elements as described in agreed-upon or
otherwise unchallenged jury instructions. Op. at 10 n.4; see also United States v.
Romero, 136 F.3d 1268, 1273 (10th Cir. 1998) (“the case law in this circuit clearly
establishes that we adhere to the law of the case doctrine, whereby the Government is
required to prove all elements put forth in unchallenged instructions to the jury, even if
the Government would not, under law, be otherwise required to do so.”). It is
unnecessary to decide that question in this case because, in my view, DeChristopher
prevails under either approach (indeed, it would be more beneficial to DeChristopher if
we were to look only to the elements as described in the jury instructions, because they
utilized only a portion of the relevant statutory language).

                                               3
to the government’s case. Even under plain error review, I would reverse

DeChristopher’s conviction on this count.

                                              I

       In 1987, Congress enacted FOOGLRA to reform the process for competitively

awarding and administering oil and gas leases on federal lands. See Pub. L. 100-203, 101

Stat. 1330. The enforcement provision of the law makes it “unlawful for any person . . .

to organize or participate in any scheme, arrangement, plan, or agreement to circumvent

or defeat the provisions of this chapter or its implementing regulations.” 30 U.S.C. §

195(a)(1). The following subsection provides that “[a]ny person who knowingly violates

the provisions of subsection (a) of this section shall be punished by a fine of not more

than $500,000, imprisonment for not more than five years, or both.” Id. § 195(b). What

evidence is required to support a conviction under FOOGLRA is a matter of first

impression before the federal courts, and, as a consequence, our interpretation of the

statute and the proofs required to sustain a conviction under it have the potential to affect

more than just DeChristopher’s prosecution.

       DeChristopher argues that the plain language of the statute requires the

government to prove that he and at least one other person “shared the goal” of defeating

or circumventing specific, known provisions of chapter 3A of Title 30. Aplt. Br. at 19-

20. The government contends that we must review this argument under the plain error

standard because DeChristopher did not present it to the district court.

       I agree with the majority and the government that we must apply plain error review

                                              4
to this argument because DeChristopher failed to raise it in the district court.2 Under the

plain error standard, DeChristopher has the burden of demonstrating: (1) an error; (2) that

is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity,

or public reputation of judicial proceedings. United States v. McGehee, 672 F.3d 860,

876 (10th Cir. 2012). The error generally must be “clear or obvious under current law.”

United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (quotation omitted). But

“the absence of circuit precedent does not prevent the clearly erroneous application of

statutory law from being plain error.” Id. (quotation and brackets omitted).

       Of course, little about this case of first impression is “clear or obvious.” The

parties are unaware of any previous prosecution under § 195(a) since it was enacted in

1987. And I agree with the majority that this seems to have been the first. But even in

the absence of precedent, I would still conclude plain error is established here because the

acts alleged and presumably found by the jury do not fall within the scope of the statute.

       In interpreting federal statutes, “we first and foremost look to the statute’s

language to ascertain Congressional intent,” giving words their ordinary and plain



       2
         DeChristopher vigorously contests forfeiture by arguing that he raised this issue
in his proposed jury instructions, motion to dismiss, testimony on his own behalf, and
defense counsel’s opening and closing statements to the jury. But one strains to find even
the most oblique references at trial to the group-activity argument now raised. The
closest defense counsel came to raising the argument came during closing argument,
where he argued that DeChristopher “didn’t have a plan with other people that he had
conspired with . . . to go down [to the auction] and do anything.” Aplee. Supp. App. at 7-
8. Even viewed in the most charitable light, DeChristopher never gave the district court
the opportunity to directly address whether evidence of group activity was required.

                                                5
meaning. United States v. West, 671 F.3d 1195, 1199 (10th Cir. 2012). If the terms of

the statute are clear and unambiguous, the inquiry ends and we simply give effect to the

plain language of the statute.” United States v. Sprenger, 625 F.3d 1305, 1207 (10th Cir.

2010) (quotation omitted). “The plain meaning of legislation should be conclusive,

except in the rare cases [in which] the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 243 (1989) (quotation omitted). “In such cases, the intention

of the drafters, rather than the strict language, controls.” Id.

       Again, the statute makes it “unlawful for any person . . . to organize or participate

in any scheme, arrangement, plan, or agreement to circumvent or defeat the provisions of

this chapter or its implementing regulations.” 30 U.S.C. § 195(a)(1). The plain language

of the statute suggests that it targets action taken in concert with others to defeat or

circumvent FOOGLRA or its implementing regulations. Both verbs selected by

Congress—“organize or participate”—indicate group activity. See Oxford English

Dictionary (online; March 2012) (defining “organize,” inter alia, as “[t]o coordinate or

manage the activities of (a group of people),” or “to plan organized action”); id. (defining

“participate” as “[t]o take part; to have a part or share with a person”). The four potential

objects of the action—“any scheme, arrangement, plan, or agreement”—also suggest

group activity, although not as compellingly. Id. (defining “scheme” as a “plan of action

devised in order to attain some end; a purpose together with a system of measures

contrived for its accomplishment”); id. (defining “arrangement” as “[d]isposition of

                                               6
measures for the accomplishment of a purpose; preparations for successful

performance”); id. (defining “plan” as an “organized (and usually detailed) proposal

according to which something is to be done; a scheme of action; a strategy; a programme,

schedule” or “an offensive strategy; a scheme to defeat, capture, or prevail over someone

or something, or a method of achieving this”); id. (defining “agreement” as a “coming

into accord; an arrangement between two or more persons as to a course of action”).

Congress’s use of these terms in other statutes suggests it understands these verbs apply

to actions involving more than one person. For example, it is unlawful to travel interstate

with intent “to organize, promote, encourage, participate in, or carry on a riot.” 18 U.S.C.

§ 2101(a). More benignly, federal law authorizes the administrator of the Federal

Emergency Management Agency “to organize, or to participate in organizing, an annual

conference on fire prevention and control.” 15 U.S.C. § 2213. In these and various other

contexts, organizing and participating suggest either concerted action by more than one

person—such as a riot—or individual acts bearing on some group activity—such as

coordinating a conference.

       Even if reasonable minds could disagree on the plain meaning of “organize” and

“participate,” application of FOOGLRA’s enforcement provision on these facts would

“produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair

Enters., 489 U.S. at 243. On this point, we are not without helpful guidance from

legislative history, which elucidates whatever the plain language leaves unclear.

       The civil and criminal penalties provided in FOOGLRA’s enforcement provision

                                             7
were intended to curtail a proliferation of fraud and abuse by private parties in the

government’s leasing of oil and gas rights on federal lands. See H.R. Rep. No. 378, 100th

Cong., 1st Sess. 15 (1987) (explaining that enforcement provision is intended to “combat

fraud and abuse of the federal oil and gas leasing program”); S. Rep. No. 188, 100th

Cong., 1st Sess. 1 (1987) (listing as one purpose of reform legislation the need to

“strengthen the Federal authority to stop certain unlawful practices with respect to

mineral leasing engaged in by private parties” (emphasis added)). The house report

documented specific forms of fraud that had arisen in the industry:

              Fraud and abuse has long been associated with the lottery used
              to issue the vast majority of leases on a noncompetitive basis.
              On occasion, the system has been subject to manipulation and
              due to continuing deficiencies in making geological
              determinations relating to oil and gas structures, lands which
              should have been issued by competitive leasing to the highest
              bidder were instead issued noncompetitively for a minimal filing
              fee. Another major problem involves the so-called “40 Acre
              Merchants” who obtain leases which contain no known oil or
              gas resources, divide them into parcels of less than 40 acres, and
              peddle them using false promises of high return to unsuspecting
              citizens. . .
                     Due to these situations, there currently exists uncertainty
              over whether the noncompetitive leasing system can withstand
              fraud and abuse . . . .

H.R. Rep. No. 378, 100th Cong., 1st Sess. 15 (1987). A report of the Senate Committee

on Energy and Natural Resources explained that, before FOOGLRA, “the Federal

onshore oil and gas leasing program ha[d] been criticized for . . . speculation by third

parties that engaged in fraudulent activities.” S. Rep. No. 188, 100th Cong., 1st Sess. 2

(1987). Specifically, “[c]ertain companies ha[d] engaged in misrepresenting to the public

                                              8
the chance of winning leases, the value of the leases, and the likelihood of industry

interest in buying leases from members of the public should they win leases in the

lottery,” and “[a]dministrative remedies imposed by [the Department of Interior] . . .

ha[d] reduced but not eliminated [these] fraudulent and speculative activities.” Id. at 3.

        This legislative history suggests this unusual statutory language was carefully

chosen to address a specific problem: oil and gas industry insiders were using their

expertise to exploit the weaknesses of the laws then applicable to oil and gas leasing.

Considering this is a case of first impression in an area that sees little federal litigation,

the majority’s failure to consult legislative history is puzzling. Both the legislative

history and contemporary scholarship support my view that Congress intended §

195(a)(1) to combat fraudulent industry practices by groups of insiders. One pair of

scholars explained that this subsection of FOOGLRA’s enforcement provision made it

“unlawful to ‘organize or participate in’ any sort of group activity to get around the

provisions” of oil and gas leasing laws.3 Thomas L. Sansonetti & William R. Murray, A

Primer on the Federal Onshore Oil and Gas Leasing Reform Act of 1987 and its

Regulations, 25 Land & Water L. Rev. 375, 414 (1990) (emphasis added). Of all the

legislative and scholarly sources to discuss FOOGLRA’s enforcement provision, none


       3
         These commentators also explained that the enforcement provision in § 195(a)(1)
was “intended to give teeth to the drive for integrity in the leasing process of the nation’s
oil and gas lands.” Sansonetti & Murray, supra, at 414. Additionally, a leading treatise
explains that Congress added the enforcement mechanism “to combat the fraud allegedly
prevalent under the simultaneous leasing system.” George Cameron Coggins & Robert L.
Glicksman, Public Natural Resources Law § 39:20 (2d ed. 2012).

                                                9
suggested it was intended to proscribe anything other than fraud by industry insiders who

knew the law and sought to exploit its vulnerabilities through concerted action.

       In my view, it is inconsistent with the statutory text and congressional intent, and

ultimately clearly erroneous, to apply § 195(a)(1) to DeChristopher’s acts. Cf. Williams

v. United States, 458 U.S. 279, 287 (1982) (“Absent support in the legislative history for

the proposition that § 1014 was ‘designed to have general application to the passing of

worthless checks,’ we are not prepared to hold petitioner’s conduct proscribed by that

particular statute.” (citation omitted)). The correct reading of the statute is not subject to

reasonable disagreement; the group activity requirement is compelled based on the plain

wording of the statute. See United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir.

2003). Because the statute of conviction requires group activity, and because it is

undisputed that DeChristopher acted alone, DeChristopher was convicted based on

insufficient evidence of guilt. All four prongs of the plain error test are satisfied in this

case because “a conviction in the absence of sufficient evidence of guilt is plainly an

error, clearly prejudiced the defendant, and almost always creates manifest injustice.”

United States v. Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007) (footnote adopted by the

court en banc).

       Given the legislative history of FOOGLRA’s enforcement provision, there can be

no doubt that Congress was targeting boiler-room operations run by scheming oil and gas

speculators, not the actions of a solitary intermeddler at an auction. If Congress passed §

195(a)(1) to make actions such as DeChristopher’s unlawful, “it did so with a peculiar

                                              10
choice of language and in an unusually backhanded manner.” Williams, 458 U.S. at 287.

Even under the plain error standard, DeChristopher’s conviction for violation of §

195(a)(1) cannot be upheld in the absence of proof of group activity.

                                           III

      I would reverse the judgment of the district court as regards the conviction under §

195(a)(1). I would otherwise affirm the judgment.




                                            11
