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DeChristopher Trial: Day 3 wrap-up

by Jesse Fruhwirth
Posted // 2011-03-02 -

Tim DeChristopher testified today in his trial and both the prosecution and the defense have rested their cases. Read what happened today and what ideas the jurors may be pondering tonight as the trial of "Bidder 70" enters it's final day.

The biggest surprise today was the testimony of Michael Mielky, a wealthy political fundraiser that DeChristopher called shortly after leaving the December 2008 Bureau of Land Management oil and gas lease auction where DeChristopher made winning bids totaling $1.8 million without having the funds to pay for them and also drove up the price of other bidders' winning bids.

Both men testified that DeChristopher asked Mielky for help, specifically for money to pay for the leases, in a phone conversation that occurred the same day as the auction. I asked DeChristopher so many months ago why he didn't raise the funds to actually pay for the parcels, and at the time all he would tell me was that he felt he wasn't being given that option.

Defense attorney Ron Yengich punctuated that claim during the trial. A BLM official testified earlier that they sent DeChristopher an invoice for what he owed, but that the certified letter was returned to them. Whether or not there was any follow-up attempt, I'm fairly certain there was no other testimony from any witnesses about trying to contact DeChristopher about payment for the leases after that initial invoice (as always, correct me if I'm wrong please!).

Prosecutors tried to suggest that DeChristopher called Mielky only for money for an attorney, but DeChristopher testified that he has paid Ron Yengich and Pat Shea no fee, and paid about $2,000 to Elizabeth Hunt; all three have worked on the case and attended trial.

But it may not matter whether DeChristopher made attempts to fix things after he made his bids. Prosecutors will no doubt argue in tomorrow's closing argument that it doesn't matter what DeChristopher did after the lease auction, because he was intending to defraud the government and indeed did so by filling out the bidder application and making bids. As was discussed by U.S. District Judge Dee Benson Tuesday, a bank robber can't commit the crime then just deliver the money back to the victim and make it OK again. As Yengich countered, however, if a person is given more money then they are supposed to be by the bank and then bring the money bank, they should not be accused of bank robbery.

In regards to intent, the defense has been developing what I will call the "fuzzy evolving intent" theory of the case. That theory goes something like this:

DeChristopher went to the auction without any clear intent aside from joining the protest outside. DeChristopher signed up as a bidder only to gain access to the room where the auction was going on (the general public was allowed to observe, but DeChristopher testified he did not know that and was not informed of that by BLM staff). As DeChristopher sat down in the auction room, he contemplated giving a speech or otherwise making a scene to disrupt the auction. "My intention being in there was to wave a red flag of what was going on," he testified. He started making bids with his "Bidder 70" paddle the BLM staff gave to him to "raise the prices closer to a fair market value for that land." He saw a friend crying in the room, and "made the decision I had to do more to take a stand ... I started winning parcels."

From that, the defense hopes the jury concludes something like, "at no time did DeChristopher lie with the specific intention to defraud the government, therefore maybe he's guilty of something, but he's not guilty of the crime they've charged him with."

As Ken Sanders, of Ken Sanders Rare Books said outside the court room, "He should be charged with a parking ticket[-caliber offense]." Jurors technically aren't allowed to "nullify" the charge for that kind of reason--there are rules--but they sometimes do so anyway. More likely, I think, is the jury could get hung up by one or more holdouts that refuse to convict.  We shall see.

Intent language is a prosecutor's nightmare because it's really hard to prove not just that someone committed an illegal action, but did so with a specific intention. Even in DeChristopher's case, where he has publicly stated probably hundreds of times that he made bids in order to disrupt and delay the auction and let the incoming Obama administration review the sale and perhaps cancel it based on deficiencies--the administration did do that--his exact intent and whether it was technically criminal is still a sticky thing, especially when facing a seasoned and capable defense attorney like Yengich.

For prosecutors, they've tried to prove that DeChristopher had bad intentions. DeChristopher was asked if, during the time that he was bidding but not winning, "You were simply bidding to harm others?" Laughter erupted from the court room that has been filled with DeChristopher supporters, the only major outburst during the trial. DeChristopher's response was unremarkable but amounted to "No." Prosecutors moved on.

Closing arguments will begin tomorrow morning at the Frank E. Moss Federal Court House.

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