AZTEC — An attorney for Juel Jordahl, accused in June of stealing approximately $400,000 worth of fuel from BHP Billiton, filed a motion last week to dismiss the case with prejudice.

Jordahl was charged on June 15 in Aztec Magistrate Court with racketeering, larceny and receiving stolen property, all second-degree felonies.

Defense attorney Val Jolley said in the motion that Jordahl cannot be charged with the new offenses because he had already been convicted of misdemeanor larceny on June 11 for his role in the fuel thefts. Jolley argues that since Jordahl has already been convicted for the same conduct, he is protected from further prosecution under the state constitution's double jeopardy provisions.

Chief Deputy District Attorney Brent Capshaw said his office is preparing a response to the motion, but he was not concerned about it.

"I do not see the case being decided on that motion," he said.

Capshaw said that the motion could not be ruled on by a magistrate judge because the charges are felony offenses and the district court has jurisdiction. He further argued that Jolley had misapplied the double jeopardy provisions.

"Sometimes you get a shooting, and the person does not die right there, so the defendant gets charged with aggravated battery for shooting somebody," he said. "Six months later, the victim dies and then we file a murder charge. This is a similar deal. They charged him with the larceny that they sat and watched him do, while they were still working on their bigger investigation, for racketeering and that."

Jordahl was expected to appear at a preliminary examination on Thursday, but the hearing was been delayed until Aug. 7 so that the motion could be considered.

According to an arrest warrant, BHP Billiton alerted the San Juan County Sheriff's Office in April to the alleged thefts after a subcontractor for Jordahl's company, Tri Delta Iron and Metal, reported that Jordahl, 64, was conspiring with BHP Billiton employees to steal the fuel.

Subcontractor Rodney Wilkinson told detectives that Jordahl and his employees would fill a 150-gallon tank with diesel from an on-site fueling station whenever they visited BHP Billiton's mining facility in Farmington. The fuel would then be transferred to a tank at the scrap metal recycler's property in Kirtland, he said.

Two former Tri Delta managers confirmed Wikinson's story, but said that Jordahl claimed that BHP Billiton agreed to provide fuel in the companies' contract, according to the warrant.

Wilkinson told detectives that two BHP Billiton employees, Roy "Levi" Swapp and another individual, facilitated the thefts in exchange for free fuel. Swapp, 40, was charged June 23 with racketeering, a second-degree felony, and receiving stolen property worth more than $2,500 but less than $20,000, a third-degree felony. The other person has not yet been charged, according to court records.

Detective Lieutenant Cory Tanner said in early July that more charges could be filed as a result of the investigation.

Wilkinson also told detectives that Jordahl and his employees improperly disposed of battery acid. Tanner said those complaints were referred to the Environmental Protection Agency for investigation.

Detectives estimate that Jordahl and his employees stole at least $394,695 worth of fuel since January 2011, according to the warrant. Swapp is believed to have received between $8,750 and $11,200 worth of fuel during that same period.

Swapp is expected to appear at a preliminary examination hearing on Oct. 9.

Steve Garrison covers crime and courts for The Daily Times. He can be reached at 505-564-4644 and Follow him on Twitter @SteveGarrisonDT on Twitter.