PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 11-4151 TIM DeCHRISTOPHER, Defendant-Appellant.

___________________________________ APPEAL FROM THE UN ITED STATES DISTRI CT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:09-CR-00183-DB-1)

____________________________________ Ronald James Yengich, Yengich, Rich & Xa iz, (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 Atto rney (David B. Barl ow, 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 Bu reau of Land Management (BLM) oil and gas lease auction in Salt Lake City, Ut ah, by representing he was a bidder. His purpose was to disrupt the auction and call a ttention to the potentia l environmental harms FILED United States Court of Appeals Tenth Circuit 

### September 14, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - of drilling on the leases. He proceeded to drive up the auc tion 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 Chapte r 3A of the Federal Onshore Oil and Gas Leasing Reform Act, in viola tion of 30 U.S.C. § 195(a)(1), and making a false statement or representation in viola tion of 18 U.S.C. § 1001. 1 He now appeals, raising eight separate issues related to his conviction. We have jurisdiction pur suant to 28 U.S.C. § 1291. We affirm.
I. Federal law requires BLM offices in each st ate with eligible la nds 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 add ition 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 BL M-managed land located in Utah. The decision to allow

1 The first of these statutes makes it “unl awful for any person . . . to organize or participate in any scheme, arrangement, plan, or agreement to circumvent or defeat the provisions of this chapter [T itle 30, Chapter 3A] or its implementing regulations.” 30 U.S.C. § 195(a)(1). The secondstatute 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 . . . ma kes any materially false, fictitious, or fraudulent statement or representation.” 18 U.S.C. § 1001(a).- 3 - drilling on these parcels sparked significant c ontroversy, and by the date of the auction individuals had filed administra tive challenges to all 131 pa rcels. Additionally, two days before the auction, environmental groups fi led suit in federal court seeking a temporary restraining order to prevent le ases from issuing on seventy-se ven of the parcels. See S. Utah Wilderness Alliance v. Allred, 20 09 WL 765882 (D.D.C. January 17, 2009) (unpublished). Despite these ch allenges, the auction went forward as planned. On the day of the auction, demonstrators gather ed 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 d ecided protesting would no t have much of an impact and wanted to “take stronger action to re ally 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 sign ing the form, Defendant “certif[ied] that any bid submitted by the unders igned . . . is a good faith inten tion . . . 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 k nowingly and willfully make any false, fictitious or fraudulent statements or repr esentations as to any matter within its [sic] jurisdiction. ” Id. The BLM employee then gave Defendant a bidder paddle, and Defendant proceed ed to the auction room.- 4 - About twenty minutes into th e auction, Defendant began bi dding on parcels. After driving up prices on more th an ten parcels without winning any bids, Defendant finally won an auction for approximately $500. Late r he won another auction for approximately $25,000. After wi nning this bid, Defe ndant consistently bid until he won ea ch of the next twelve auctions. BLM officials suspended the auction because of Defendant’s actions, which had caused some legitim ate bidders to leave the au ction. Defe ndant’s winning bids on the fourteen parcels of land tota led $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 mone y, but he never completed the payment. 2 Based on this conduct, a grand jury i ssued a two-count indictment against Defendant. Count 1 charged him with orga nizing or participating in a scheme, arrangement, plan, or agreement to circumvent or defeat the provisions of the Federal Onshore Oil and Gas Leasing Refo rm 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 de fense. Defendant attached voluminous documentation of the BLM’s purported violati ons 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 cancelle d. This factual dispute is not relevant to the issues on appeal.- 5 - regulations as well as evidence about environm ental issues such as global warming. The district court granted the motio n in limine, concluding “the evidence is insufficient as a matter of law to support the necessity defe nse.” United States v. DeChristopher, 2009 WL 3837208 at *5 (D. Utah, No v. 16, 2009) (unpublished). Defendant then filed a motion for discovery regarding selective pros ecution, arguing the Government treated him differently than other persons who faile d to pay for their o il and gas leases. Defendant attached tables s howing other successful bidders who did not pay for the leases they won. The district court deni ed this motion, concluding Defendant had produced no evidence of discriminatory effect. The court found no eviden ce 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 disc riminatory intent. At trial, the Government presented th e following evidence . First, the BLM employee who tended the auction registration ta ble 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.” Appe llant’s App., vol. II at 499. Sh e also testified to watching Defendant read and fill out th e bidder registration form. Se cond, the BLM employee who conducted the auction testifie d 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 auc tion because Defendant’s age and clothing did not fit the description of most bidders. The ranger ca lled BLM Special Agent Dan Love’s attention to Defendant as someone to be watched.- 6 - Fourth, Special Agent Love testified regard ing his observations of and interactions with Defendant on the day of the auction. Ag ent 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, Agen t Love grew concerned that Defendant might cause a di sturbance, so he requested additional uniformed officers to enter the room. Sometime after the unifo rmed officers entered the room, Agent Love observed Defendant begin bidding. He testified that Defendant would only start bidding on a parcel once he saw bidder s start dropping out, would bi d up the price with the last remaining bidder, and would then drop ou t when the other bidder hesitated. Agent Love testified that he made cont act with Defendant du ring 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. Defendan t told Agent Love that he had “posed” as a bidder because he believed it was the only way in to 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 th e auction. He told Agent Love that after he won the second bid, he rea lized he had no way to pay for the leases, so he decided to- 7 - “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 confidentia lity is gone,” which hu rt the competitiveness of the auction. Appellant’s App., vol. II at 623–24. Finally, the Government called Kent Ho ffman, 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 nomi nates 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 th ings are completed, and then prior to the auction the environmental documents are signed. Id. at 651–52. After Mr. Hoffman’s testim ony, Defendant again sought to introduce evidence the BLM violat ed environmental laws by offeri ng 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 wr itten proffer of the evidence he sought to present, the court again said it wa s unwilling to “open[] this case into a vast exploration of oil and gas lease policy by the United States government” and the related- 8 - 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-examina tion, the Government questioned him regarding statements he made to the public press and read into evid ence some of Defendant’s public statements. In one interview, he said, “I was there to stop th at 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 in terview, he said, “I just decided I wanted to go in side to cause a bigger disruptio n.” 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 ge t into the auction, and he said the employee only asked if he was a “bidder,” not whether he was a “bidder, obser ver, or member of the media.” He also admitted that after he won his second bid he “was attempti ng to win the leases,” even though he knew he could no t afford them. Id. at 841. Defendant moved for judgment of acqu ittal under Federal Rule of Criminal Procedure 29 at both the close of the Government’s case and th e close of all the evidence. The district court denied th e motion each time. The jury then convicted Defendant on both counts. The district court senten ced Defendant to twenty-four months’- 9 - imprisonment and three years’ supervised release. 3
II. Defendant appealed, raising a host of i ssues, some of which he did not raise below. Although he only lists three issues, we can discer n eight distinct arguments on appeal. They are as follows: (1) the evidence was insuffici ent 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 Refo rm 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 impr operly denied Defendan t the opportunity to present a necessity defense, (7) the Govern ment selectively prosecuted Defendant in violation of the Equal Protecti on Clause, and (8) the district court sentenced Defendant to punish him for exercising his First Amendmen t rights. Because the standard of review varies, we will discuss the appropri ate standard under each issue.
A. We first address Defendant’s argument that the evidence wa s insufficient to convict him on Count 1 because it did not demonstrate group ac tivity. He argues 30 U.S.C. § 195(a)(1) requires more than one pers on, similar to a conspiracy charge. When

3 The district court’s judgment does not in dicate whether the sentence was twentyfour months on each count, to be served concu rrently, or twelve months on each count, to be served consecutively. At oral argument, defense coun sel said he understood the sentence to be twenty-four months on each count.- 10 - 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 ther efrom, 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) erro r that is (2) plain, (3) aff ects substantial rights, and (4) seriously affects the fairness, integrity, or p ublic reputation of judicial proceedings. United States v. Flonnory, 630 F.3d 1280, 1288 ( 10th Cir. 2011). Defe ndant cannot meet this burden. “An error is plain if it is clear or obvio us under current, well-settled law. In

4 Defendant’s sufficiency argument is some what baffling at first glance because the jury instructions did not require group activity and Defendant ne ver objected to the jury instructions for failing to require group activity. That is, Defendant is arguing the Government failed to prove a re quired element, but that elem ent was not part of the jury instructions. Despite this awkward litigation strategy, howe ver, 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 St ates v. Nacchio, 519 F.3d 1140, 1157 (10th Cir. 2008 ), vacated in part onother 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 adde d). If it is proper to look to the statute, rather than the jury instruc tions, 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 De fendant cannot prevail on his sufficiency claim under plain error review.- 11 - general, for an error to be co ntrary to well-settled law, eith er the Supreme Court or this court must have addressed the issue.” United States v. Th ornburgh, 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 pe rson 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 interpreta tion, 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 “org anized 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 10 5, 113 (1st Cir. 1 995), interpreted the Sentencing Guidelines’ use of th e word “organizer.” The cour t in Tejada-Beltran, said an organizer is “at bottom a person who forms di verse 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 Defenda nt little help. Nor does the statute’s language unambigu ously require group activity. See United States v. Brown, 316 F.3d 1151, 1158 (10t h Cir. 2003) (concluding that even in “the absence of circuit precedent” a district court’s error was pl ain when a guideline “clearly and obviously” was limited to a single inte rpretation). Section 195(a)(1) makes it- 12 - unlawful for any person “to organize or par ticipate in any scheme, arrangement, plan, or agreement to circumvent or defeat the prov isions of this chapter or its implementing regulations . . . .” The statute first requi res the defendant either to “organize” or “participate.” Webster’s Third New Interna tional Dictionary defines “organize” as “to unify into a coordinated functi oning 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 16 46. Although participation is usually in common with others, it need not necessari ly 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 “agre ement,” 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 pl an, usu[ally] to deceive others.” Black’s Law Dictionary 1462 (9th ed.). Webster’s defines “arrangement” as “a structure or combinati on 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 me thod of achieving something: a way of

5 Defendant essentially concedes this poi nt 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 def eat” the provisions of the Leas ing Reform Act. Appellant’s Br. at 19 n.14. He hangs his hat on the add ition of the words “organ ize” and “participate in.”- 13 - 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 w ith the provisions of Title 30 , Chapter 3A. The ordinary meaning of these words does not require more than one pers on. In short, we cannot conclude under plain error review that th e statute requires group activity. Thus, the evidence was sufficient to co nvict Defendant on Count 1.
B. Defendant next argues the evidence wa s insufficient because the Government presented no evidence th at 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 th e word “knowingly,” the subs ection that specifies the penalty for a violation of 195(a) applies only to persons who “knowi ngly violate[] the provisions of subsection (a).” § 195(b). Thus, a convicti on 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 inte ntionally 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 thatthe statute required him to know the- 14 - 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, transf ers, 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 ille gal, 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 mustprove “that the defendant knew that his acquisition or possession of f ood 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 re quire the Government “to prove the defend ant knew of the specific immigration statute allegedly violated.” United States v. Islam, 418 F.3d 1125, 11 28 (10th Cir. 2005) (emphasis added). Here, the Government presented the jury with ample eviden ce that Defendant knew his actions would “circumvent or defeat” the statutes and regul ations 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 inte nded 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.- 15 - 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. Becaus e 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 th e jurisdiction of the ex ecutive . . . 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 inform ed the jury that, to convic t Defendant on Count 2, it must find “ First , the defendant made a false stat ement 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 inte nded 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 kn owingly make a false statement when he

6 This instruction does not reflect the fa cts 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 in struction on this basis.

7 Defendant’s representation to the BLM em ployee that he was a “bidder” was, by Defendant’s own admission, a false representati on. The jury instructions, however, only instructed the jury regarding Defendant’s action in signing th e bidder registration form.- 16 - signed the form saying “any bid” he made woul d 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 inte nded at first only to cause a di sturbance in the auction. He testified that the BLM employee at the regi stration table only aske d him if he was a “bidder.” The BLM employee, however, specif ically 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 en trance to the auction, which he co uld have done as an observer, but in order to drive up the auction prices. Th e jury also heard evidence that Defendant entered the auction in or der 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 bidde r 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 leas es. Thus, the evidence was sufficient to sustain Defendant’s c onviction 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.- 17 - Defendant next argues the jury instructi ons constructively ame nded the indictment in two ways. First, he argues they co nstructively amended Co unt 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 intentio n to acquire an oil and gas le ase, and (3) that Defendant “bid on and purchased oil and gas leases that he had neither the in tention 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” statem ent. 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 indictme nt occurs “when the evidence presented at trial, together with the jury instructions, so alters the indi ctment as to charge a different offense from that found by the grand jury.” United States v. Farr, 536 F.3d1174, 1180 (10th Cir. 2008) (internal quotation marks and alterations omitted). “To constitute a constructive amendment, the district court pr oceedings must modify an essential element of the offense or raise the po ssibility the defendant was convic ted 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 omitte d from Count 1 were no t 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 argum ent falls flat.- 18 - 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 la w 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, 5 46 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 c ourt abused its discretion by limiting his presentation of evidence regarding the allege d illegality of the BLM auction. Defendant sought both to cross-examin e Mr. Hoffman regarding the BL M’s compliance with federal laws and to introduce additional evidence, in cluding evidence that the BLM (1) failed to provide the standard three-month notice period for the leases, (2) in adequately 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 Fede ral 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 argue d 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 a sserts the exclusion of eviden ce violated his constitutional- 19 - 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 Proc ess Clause of the Fourteenth Amendment or in the Compulsory Process or Confront ation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 47 6 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 47 9, 485 (1984)) (citations omitted ). Thus, “the Confrontation Clause guarantees an opportunity for effective cross-exam ination,” but “not crossexamination that is effective in whatever way, and to what ever 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 re levant 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 irre levant. Whether the BLM complied with all applicable environmen tal regulations in co nducting the auction has nothing to do with whether Defendant or ganized a scheme, arrangement, or plan to circumvent or defeat the provisions of th e 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 st atute does not allow such a- 20 - defense. Nor do the BLM’s allegedly illegal ac tions negate any elemen t of the offense. Thus, any evidence of the BLM’s noncomplian ce 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 preventin g him from presenting a necessity defense. “A criminal defendant is entitled to an instruc tion 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 statut e.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 490 (2001). Ne vertheless, our circuit continues to assume such a defense exists. United States v. Pa tton, 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 preven ted is imminent, and (3) a dire ct, 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 al terations and ellipsis omitted). We review a district court’s refusal to instruct on a sp ecific 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 ha rm Defendant intended to prevent was the- 21 - environmental harm that would stem from th e 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 numbe r of environmental grou ps had filed such a lawsuit two days before the sa le, once they realized nothing else would halt the auction. Defendant responds that a statute required the leases to i ssue 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 7658 82. Because Defendant had this legal (and more effective) means of pr eventing the leases from issuing, he was not entitled to present a necessi ty 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, 129 8 (10th Cir. 2005). A criminal defendant claiming selective prosecution must show “that the federal prosecutorial policy had a discriminatory effect and that it was motivat ed by a discriminato ry purpose.” United States v. Armstrong, 517 U.S. 456, 465 (1996) (internal quotation marks omitted). In order to obtain discovery concerning selectiv e prosecution, Defendant must satisfy the “rigorous standard” of making “a credible sh owing” of both discriminatory effect and discriminatory intent. Id. at 468, 470. Defendant focuses most of his argument on the newly-asserted theory that the- 22 - 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 sh ares with the ot her unprosecuted bidders. Instead, he must show the other defendants ’ “circumstances present no distinguishable legitimate prosecutorial fa ctors 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 on ly one other bidder who, lik e 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 acre s at an auction in New Mexi co. Defendant, by contrast, won fourteen parcels totaling around 22,600 acres at a Utah auction. Furthermore, Defendant submitted no eviden ce that the other bidder ha d bid with the purpose of disrupting or stopping the sale. Therefore, Defendant did not meet the threshold for discovery related to selective prosecution. Th e 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 Am endment rights. He bases this argument on- 23 - some of the district court’s statements dur ing the sentencing hearing. The court said: If this hadn’t been a continuing tra il of statements by Mr. DeChristopher about his advocacy, as he calls it civil disobedien ce, 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 cas es from our sister circuits concluding that a district court may not constitutionally impose a crim inal 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 Un ited States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986) (“[T ]he imposition of a sentence on th e basis of a defendant’s beliefs would violate the [F]irst [A]mendment’s gu arantees.”); United States v. Bangert, 645 F.2d 1297, 1308 (8th Cir. 1 981). 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. 80 8, 820–21 (1991). Th us, the Supreme Court has rejected the notion that the Constitution erects “a per se barrier to the admission of evidence concerning one’s belie fs and associations at sent encing simply because those beliefs and associations are protected by th e First Amendment.” Dawson, 503 U.S. at- 24 - 165. In Dawson, the state trial court admitte d evidence regarding th e beliefs of the Aryan Brotherhood, of which the defendant was a membe r, into the penalty phase of a jury trial. Id. at 162. The Supreme Court rejected the defendant’s argumen t 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 defend ant’s] sentencing procee ding.” 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 th ese 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 ar e “sufficiently related to the i ssues at sentencing.” United States v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005) (quoting Boyl e 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 ta x crimes and “demonstrate[d] a likelihood of recidivism.” Id. Similarly, the Ninth Circuit held that a district court could- 25 - impose a sentence based on the defendant’s vi ews where the court “m ade 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 a nd 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 Defe ndant’s beliefs for relevant purposes and did not punish him for his speech. The cour t said, “I want to make clear that Mr. DeChristopher had every right to make ev ery pronouncement that I know of about everything, and when he was conv icted 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 se ntence, it noted it was “focusin g primarily on respect for the law and deterrence.” Id. at 966. The context makes cl ear that the court, far from punishing Defendant for the co ntent of his public statements, simply relied on those statements to determine the sentence necessary to deter Defendant fro m future violations and to promote respect for the law. Defendant’s statements that he would “continue to fight” and his view that it wa s “fine to break the law” we re highly relevant to these sentencing factors. So the district c ourt did not violate the First Amendment by considering Defendant’s public statements when imposing sentence.
AFFIRMED.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; andSecond, 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

2only 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). 3to 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

4to 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. 5meaning. 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

6measures 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

7were 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 nonc ompetitively 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

8the 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). 9suggested 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 compelledbased 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

10choice 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