Tuesday, March 16, 2010

DeChristopher loses again in preparing defense

Courts » Judge deals setback to argument of selective prosecution.
By Patty Henetz

The Salt Lake Tribune

Updated: 03/15/2010 06:45:57 PM MDT

Tim DeChristopher, indicted on two felonies for disrupting a 2008 federal oil and gas lease auction to protest Bush administration resource policies, has lost another round in court.

U.S. District Judge Dee Benson denied DeChristopher's attempt Monday to force federal prosecutors to release more evidence on bidders who may have cheated the government by not paying for parcels they won at other Bureau of Land Management auctions.

Benson's ruling comes after he rejected, in November, a lesser-evils, or necessity, defense, forbidding DeChristopher to argue he tried to sabotage the auction to combat global warming.

In his latest motion, DeChristopher sought evidence to prop up his claim he is being selectively prosecuted. But Benson, agreeing with the prosecutors, said the defense wouldn't fly and the U.S. Attorney for Utah's office shouldn't have to research or release any more than it already has.

And, the judge said, since DeChristopher has stated publicly he intended to monkey-wrench the auction -- something none of the other bid walkers asserted -- he cannot claim to be a victim of discrimination.

The U.S. Attorney's Office, replying to an earlier defense motion, found that 25 bidders in the past five years, including DeChristopher, either failed to pay, bounced checks or didn't intend to pay.

Defense attorney Ron Yengich said the lack of legal actions against the other 24 shows DeChristopher was singled out because



of his civil-disobedience motive, and, if prosecutors know more about why the others walked away, they should hand it over.

DeChristopher's most recent motion sought evidence concerning policies on such prosecutions plus any communication, including e-mails, generated by the Justice Department, Interior Department and the BLM about why they wanted to take legal action against him.

All the bid walkers had their own motives, which were financial and benefited themselves, Yengich said. DeChristopher, however, was charged with a two-count felony because his motive was "impure."

"In many instances it was just to take those parcels out of the bidding process at that time," Yengich said of the others who failed to pay. "It is clear that [a bid walker] may well have done that for identical reasons as Mr. DeChristopher -- because they wanted to tie up that bid."

On Dec. 19, 2008, DeChristopher, then a 27-year-old University of Utah economics student, won parcels through bids totaling $1.8 million with no intention of paying for them. He acknowledged his action to BLM law enforcement officers who questioned him after they removed him from the auction room at the agency's Salt Lake City offices.

Since then, he has become a folk hero of sorts to those who believe in civil disobedience. On Monday, the courtroom was packed with about 50 supporters and observers, many from the First Unitarian Church in Salt Lake City, which DeChristopher attends and where he has spoken about his actions.

Assistant U.S. Attorney Scott Romney told Benson that other than a man from New Mexico (who, court papers show, falsely bid $912,000 in 2007 then didn't respond to a BLM invoice), prosecutors knew of no other intentional bid walking.

"Mr. DeChristopher stands by himself," Romney said. "It's only Mr. DeChristopher who threw an entire auction into disarray."

Benson suggested prosecutors might feel differently about the case if DeChristopher hadn't admitted his motives.

"That's correct," Romney replied.

Benson read his denial from the bench. While the judge still was talking, defense attorney Pat Shea said prosecutors should turn over a BLM memo that discusses why they should prosecute DeChristopher.

"You don't have enough here to pursue this defense," Benson replied.

After the hearing, Shea said prosecutors had engaged in "an old lawyers' trick:" Don't ask a question if you know you won't like the answer. He said the defense, still intent on arguing selective prosecution, would pursue the documents, which are public, through the Freedom of Information Act.

Shea, the national BLM director during the Clinton administration, said many bidders are speculators who profit by "assigning" -- the BLM term for transferring ownership -- their parcels to oil and gas developers.

If the speculators couldn't unload the parcels, Shea said, they would write bad checks or just not pay the balance of what they owed the BLM.

Outside the courtroom, DeChristopher said the defense also wants to know how oil companies may have been involved in the decision to indict him and why an oil lobbyist told a reporter of the indictment the day before U.S. Attorney for Utah Brett Tolman announced it.

"The political motivation behind the prosecution is clear," DeChristopher said. "They wanted to disrupt the auctions for their own profit. ... But if you disrupt an auction to protect land, to keep the oil in the ground, it has [to be] prosecuted."

BLOGGERS NOTE: DeChristoper hasent a chance w/ this judge. Benson was nominated by President George H.W. Bush on May 16, 1991, to a new seat created by statute (104 Stat. 5089) especially for him.

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