To follow are the official sentencing recommendations filed by the Prosecution, delineating their exact reasons for recommending the harshest sentence possible for Tim DeChristopher. First is the Prosecution's pre-sentencing report, and after that is the objection to the recommendations of the sentencing officer, which they viewed as "too lenient" a punishment for Tim's crimes. --PeaceUp
The United States Attorney, by and through the undersigned Assistant United States Attorneys, hereby submits this sentencing memorandum to assist the Court in determining an appropriate sentence for the defendant. Based upon Title 18 of the United States Code, section 3553(a), this Court should impose a significant term of imprisonment to accomplish a fair and reasonable sentence in this matter. In particular, a term of imprisonment will (a) comport with the nature and circumstances of the offense and the history and characteristics of the defendant; (b) reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; (c) afford adequate deterrence to criminal conduct; and (d) protect the public from further crimes of the defendant. The Court may also consider other aspects of the sentence, including a fine and restitution.
A. The Nature and Circumstances of the Offense and the History and Characteristics of the Defendant
In determining an appropriate sentence to be imposed, one of the Court’s requirements is to “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S. C. 3553(a)(1). To be sure, the defendant’s crimes are serious. He lied, obstructed lawful government proceedings, and caused extraordinary loss to others. Unilaterally, he played out the parts of accuser, jury, and judge as he determined the fate of the oil and gas lease auction and its participants that day.
His spontaneous course of criminal conduct was neither necessary nor justified. Rather, it was self-centered and juvenile, and lacked the fortitude and diligence that would be characteristic of the very movement that he claimed to represent. He left behind the myriad legal alternatives available to address his concerns, and opted for on-the-spot recklessness. For example, he did not take the time to articulate reasoning in a filed formal protest within the BLM proceedings. He did not initiate or join a lawsuit to bring to light perceived impropriety in a court of law. Nor did he focus creativity and sacrifice as others did in freely voicing their objections to the auction in the public forum. These lawful means and others most likely led to eventual cancellation of many of the parcels up for auction that day. It was not the defendant’s crimes that effected such a change.
Nevertheless, since the day of his crimes, the defendant has championed and marketed his course of criminal conduct as successful, necessary and all-American. He has encouraged and invited others to follow his path, and literally join him in jail by committing criminal acts in the name of a movement. Unapologetic, the defendant publicly extols his acts of lying to the government, and obstructing proceedings authorized by our elected representatives.
B: The Need to Reflect the Seriousness of the Offense, Promote Respect for the Law, and Provide Just Punishment for the Offense.
The Court should also consider the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and provide just punishment for the offense.” 18 U.S.C. 3553(a)(2)(A). These factors weigh in favor of a significant term of imprisonment.
In the defendant’s statements to his supporters and to the media, with his fist in the air, he would have one believe that he had performed a great act of heroic defiance worthy of pomp and circumstance. On the other hand, in his sentencing memorandum—when his liberty was on the line—he shies away from the impact of his crimes. He claims that his criminal acts caused “no loss” (D. Memo at 2), and that it was by “accident” (D. Memo at 11) that he fell into this path of criminal behavior.
The Court is well aware of the facts that supported the guilty verdicts, and which show the seriousness of the crime. The defendant derailed the oil and gas lease auction in one afternoon. The auction was the culmination of months, if not years of BLM and other agency preparation. Of course, that work was funded by United States taxpayers. Investors and businesses, too, expended considerable resources in preparation for and participation in the auction. The various money loss calculations probably give only symbolic illustrations of the seriousness of the defendant’s crimes, whether those losses are for the $139,000 cost of the auction, the $1.8 million price of the successful fake bids, or the $600,000 estimated loss by one businessman at the auction. Nonetheless, they are all accurate examples of how the defendant’s conduct greatly impacted others.
A significant prison term will promote respect for the law. This factor is perhaps most telling as it applies to the defendant’s crimes where his acts, including post-offense conduct, champion disrespect for the rule of law. He lied to government officials to get a bidder card and the authority to participate in the auction, and he obstructed the rules and laws governing the event. Since then, he has encouraged others to act similarly and join him outside the bounds of the law. Then, there are the pre-trial efforts linked to the defendant focused on tainting the prospective jurors, and persuading them to abandon or ignore rules and laws governing their service. The Court should have little tolerance for this behavior, and should fashion a penalty that promotes respect for the law, and justifies law-abiding society’s reliance on the rule of law for protection and order.
To be sure, penalty and punishment are central to the purposes of sentencing. This premise is basic to our society, as one’s choices and actions should always have consequences. The expectations are that the punishment should not be too harsh, and it should not be too lenient. Probation or a nominal jail sentence would be as unjust in this case as would be the maximum term of imprisonment. The actual term imposed should be one of significant consequence.
C. The Need to Afford Adequate Deterrence to Criminal Conduct.
As opposed to preventing this particular defendant from committing further crimes (see discussion below), the sentence should be crafted “to afford adequate deterrence to criminal conduct” by others. 18 U.S.C. 3553(a)(2)(B). Based upon the level of media attention at the trial and pre-trial hearings, the Court should presume that many are watching to see the eventual sentence for the defendant’s conduct. Among the many listening to the Court’s sentence, there are those few who are considering the defendant’s invitation and encouragement to join him outside the bounds of law, and inside jail. Accordingly, the defendant’s sentence should effectively communicate that similar acts will have definite consequences. To be sure, a federal prison term here will deter others from entering a path of criminal behavior.
D. The Need to Protect the Public from Further Crimes of the Defendant.
The defendant has remained a vocal champion of using criminal means to advance a cause. Accordingly, the Court should consider how the sentence will “protect the public from further crimes of the defendant.” 18 U.S.C. 3553(a)(2)(C). There are two aspects to this factor as it applies to the defendant. First, the Court should use a term of imprisonment to immediately remove the defendant from efforts to organize criminal acts in the name of a cause. And second, the Court should consider the long term impact that a term of imprisonment will have on the defendant’s future behavior once release or off supervision.
The defendant’s criminal acts have brought him considerable notoriety. For the duration of this prosecution, he has garnered audiences which include a fringe element that promotes criminal conduct to advance a cause. An immediate term of significant imprisonment will negate his participation with fringe elements promoting criminal acts, and assuredly protect the law-abiding public.
For the remainder of the defendant’s life, whether he admits it or not, he will measure the impact of this sentence in his future decisions. A significant, just sentence will serve as a benchmark in his life as he weighs out the consequences for committing criminal acts. Such a sentence will protect the law-abiding public for years to come.
On the other hand, a sentence of too little consequence may have the opposite effect. His criminal acts have brought the defendant considerable notoriety and fame with a certain segment of society. As that attention wanes, the defendant may be tempted to reignite his relevance in that segment with criminal acts. An insignificant sentence may then appear as a reasonable price for popularity.
E. Fine and Restitution.
The Court should consider the kinds of sentences available and the need to provide restitution to any victims of the offense. 18 U.S. 3553(a)(3) and (7). The defendant has collected a significant amount of monetary donations, as described in the pre-sentence report. The United States understands that these donations were solicited in the name of legal fees and costs. Nevertheless, the defense counsel have previously represented that they have donated their services in whole or in part. Accordingly, the monetary collections by the defendant appear to be a windfall to him for the crimes he committed. Meanwhile the government has suffered injury at the defendant’s hands. The defendant has the ability to pay a fine and should do so. The Court should order a fine in an amount to represent the damage done to the government. The Court could alternatively issue such an order based upon its authority to order restitution for damages caused in derailing the oil and gas lease auction, estimated to be $139,000.
The defendant’s crimes are serious. Probation, or a nominal term of imprisonment will not comply with the sentencing purposes set forth in Section 3553(a). More importantly, such a sentence would not satisfy the interests of justice. The rule of law is the bedrock of our civilized society, not acts of “civil disobedience” committed in the name of the cause of the day. A significant term of imprisonment will underscore this truth for the defendant and the community.
Official Objection to Defense's Pre-Sentencing Report
The United States respectfully objects ot the final draft of the United States Probabtion Office pre-sentence report (“PSR”). The PSR incorrectly calculates the amount of loss caused by the defendant’s crime and inappropriately rewards the defendant with a two-level discount in his offense level for acceptance of responsibility.
A. The PSR Incorrectly Calculates the Loss Caused by Defendant’s Crime
The sentencing guidelines are clear on how loss is calculated. According to note 3 of Section 2B1.1, loss is the “greater of actual loss or intended loss.” In this case, Mr. DeChristopher intended to cause pecuniary harm to legitimate bidders at the December 2009 BLM oil and gas lease auction. We know this because the defendant himself stated as much on multiple occasions and in a variety of forms; he told law enforcement at the time of his arrest, he told the jury at the trial, and he has trumpeted it to others including the media in speeches and interviews.
On the day of the offense, Mr. DeChristopher told Special Agent Dan Love that by illegally bidding at the auction he was trying to drive-up the price that others would have to pay to secure a lease. By his own estimation, he had driven-up the price of parcels in excess of $300,000. Mr. DeChristopher was boastful of this, noting that he knew he was successful in his tactic because he had caused legitimate bidders to leave the auction. This is consistent with the testimony that Mr. DeChristopher provided at trial, admitting that his intention was to cause financial harm to others with whom he disagreed.
Not only did Mr. DeChristopher intend to financially harm others involved with the auction; he actually caused financial loss. In fact, Mr. DeChristopher significantly underestimated his own efficacy in doing so when he told Special Agent Love that he had bid-up the lease price in excess of $300,000. He caused at least one legitimate bidder to lose in excess of $600,000 because of his illegal conduct. Where the defendant admits his intention was to cause financial harm to others and he did in fact cause more that $600,000 of loss to at least one other, the loss amount for purposes of sentencing guidelines should start at that amount. The PSR, however, does not even include this intended and actual loss in its calculation. The PSR should be amended to more accurately reflect the true extent of the cost of the defendant’s crime.
But Mr. DeChristopher’s crime not only caused other legitimate bidders financial loss, it also deprived the federal and state governments, and taxpayers in general, from the revenues of at least three otherwise valid leases that the defendant illegally prevented from being purchased by a legitimate, good faith bidder. These leases were valued at approximately $160,000.
Mr. DeChristopher’s criminal conduct also caused loss to the BLM. Through his actions, he prevented the BLM from staging a competitive auction, causing nearly a total loss of the resources it cost to prepare for and put on the auction. The amount expended by the BLM to conduct the December 2009 auction was approximately $139,000.
When tallying the extent of Mr. DeChristopher’s criminal conduct, the Court should include the loss he intended to cause other legitimate bidders, the price of the unaffected leases that the defendant prevented from being validly purchased, and the amount the BLM lost as a result of the defendant’s actions. This amount is approximately $900,000.
B. The PSR Inappropriately Recommends Acceptance of Responsibility
Acceptance of responsibility is not appropriately applied to the defendant. Only in “rare situations” should a court award a defendant credit for acceptance of a responsibility after a defendant elects to go to trial. Those times are reserved for the uncommon cases where the defendant “clearly demonstrates an acceptance of responsibility for his criminal conduct”… or in cases where a defendant goes to trial in order to preserve a specific right. U.S. vs. Salazar-Samaniega, 361F3.d (10th Circuit 2004) (defendant was entitled to reduction because sole purpose for going to trial was to preserve opportunity to appeal denial of motion to suppress); Sims, 428 F. 3d at 960 (defendant entitled to reduction to challenge constitutionality of statute). In all other cases, credit should be withheld. Before sentencing the defendant, the Court should correct this error in the PSR at paragraph 58, “Adjustment for Acceptance of Responsibility.”
To qualify for a sentencing adjustment based on acceptance of responsibility, the defendant bears the burden of proof in establishing his entitlement. Us. v Whitehead, 912 F.2d 448, 450 (10th cir. 1990). A defendant should be given the two-point reduction for acceptance of responsibility following a trial only when he clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct. U.S. v Day, 223 F.3d 1225, 1230 (10th cir. 2000). “The sentencing judge is in a unique position to evaluate a defendant’s level of [acceptance of] responsibility.” U.S.S.G. 3E1.1, application note 5. Thus, the decision on whether to award the reduction is within the broad discretion of the court.
Mr. DeChristopher is not one of the rare or unusual cases in which an award for accepting responsibility is appropriate. He has not challenged the constitutionality of the validity of the statutes with which he was charged and at no time has he acknowledged the criminal consequences of his actions. Never has Mr. DeChristopher shown any remorse or regret for his actions.
In fact, the defendant has acted in a manner inconsistent with acceptance of responsibility when speaking about his offense. Mr. DeChristopher told one media member, “I would do it again in a heartbeat.” Brooke Jarvis, More Powerful Than We Know: Interview With Tim DeChristopher, Yes! Magazine, February 25 2011. http://www.yesmagazine.org/planet/more-powerful-than-we-know-interview-with-tim-dechristopher.
In other interviews, Mr. DeChristopher has made clear that he has no regrets in committing his crime. See Ben Jervey, The Climate-crusading Highest Bidder, Good Magazine, March 31, 2011, available at http://www.good.is/post /q-a-the-climate-crusading-highest-bidder; Interview by Doug Fabrizio with Tim DeChristopher, Salt Lake City, Utah (“I certainly don’t have any regrets”), available at http://vimeo.com/20626810.
It certainly was not a rare act of accepting responsibility when just minutes after being convicted by a jury for his crimes Mr. DeChristopher gave a emphatic speech to his followers and the media members, telling them that “if we are to achieve our vision, many after me will have to join me [in prison] as well.” Ksl.com, Jury finds activist Tim DeChristopher guilty of both charges, March 3, 2011, available at http://www.ksl.com/sid=14587017.
According to the United States Sentencing Commission, awarding acceptance of responsibility after a jury conviction is a “rare situation.” Mr. DeChristopher’s case does not resemble in any way the example set forth to justify a “rare” application of the guideline after a jury conviction. His pre-trial and post-conviction statements and conduct show that he never accepted responsibility for the criminality of his actions. On the contrary, Mr. DeChristopher has boastfully declared that he has no regrets for what he did, would do it again “in a heartbeat,” and encouraged others to follow his lead. The PSR should be corrected as the defendant should not be rewarded for refusing to accept responsibility.
The PSR should be amended to correctly calculate the amount of loss caused by the defendant’s crime and adjust the guideline calculation to remove the reduction for acceptance of responsibility.
Respectfully submitted this 14th day of July, 2011,
United States Attorney
Scott B. Romney
Assistant United States Attorney
John W. Huber
Assistant United States Attorney
Submitted this 19th day of July, 2011.
Charlie Christensen, United States Attorney
John W. Huber, Assistant United States Attorney
Scott B. Romney, Assistant United States Attorney