Tenth Circuit Overturns NCLA Client’s Wrongful Conviction Under USFS Regulation for Instagram Post
July 16 2024 - 4:40PM
Today, the U.S. Court of Appeals for the Tenth
Circuit overturned New Civil Liberties Alliance client David
Lesh’s criminal conviction for allegedly violating a regulation
promulgated by the U.S. Forest Service (USFS). The Court ruled that
the USFS regulation banning unauthorized “work activity or service”
on USFS lands is impermissibly vague as applied to his conduct.
This means Mr. Lesh could not have known that taking photos on USFS
land and posting them to his personal Instagram account would be
punishable under the regulation. The Tenth Circuit, under binding
Supreme Court precedent, determined that Mr. Lesh was not deprived
of his Sixth Amendment right to a jury trial because the so-called
petty offense exception applies, but two judges implied that the
exception might be inconsistent with the Constitution and should be
revisited.
An accomplished skier and founder of the outdoor
gear company Virtika, Mr. Lesh posted two photographs on his
personal Instagram account in April 2020 that depicted a
snowmobiler performing a jump at Colorado’s Keystone Ski Resort.
The resort rests on USFS-administered land and was closed at the
time due to Covid-19. Mr. Lesh’s Instagram post did not mention
Virtika, nor did it promote the company’s products. Nevertheless, a
federal magistrate judge convicted him of violating one regulation
prohibiting operating a snowmobile outside of a designated route
and another banning unauthorized “work activity or service” on USFS
lands. Without a jury trial, Mr. Lesh was sentenced to six months’
probation, 160 hours of community service, and a $10,000 fine. Only
the off-route snowmobiling conviction was upheld today.
In a powerful concurrence, Tenth Circuit Judge
Tymkovich, joined by Judge Rossman, urged the Supreme Court to
revisit the “petty offense exception” to the jury trial right.
Judge Tymkovich explained that this exception appears to be
inconsistent with the Sixth Amendment’s guarantee of a jury trial
in criminal cases and noted that the precedent has been called into
question by many constitutional scholars. The concurrence
highlights how the Sixth Amendment’s jury trial guarantee “[i]n all
criminal prosecutions” is currently interpreted by the Supreme
Court to exclude petty offenses—those carrying a maximum penalty
six months’ imprisonment or less. The exception applies even if, as
in Mr. Lesh’s case, the possible term of imprisonment exceeds six
months based on an aggregation of charges. Either way, it
contravenes the Constitution’s plain language. The concurring
judges noted in conclusion that “[u]nder current doctrine, the
judicial imperative of interpreting the fundamental-to-liberty jury
right has been abdicated to the legislative branch, or in this case
even the executive branch. But such discretion ‘in regard to
criminal causes is abridged by the express injunction of trial by
jury in all such cases.’”
NCLA released the following statements:
“We are pleased the Court deemed the
regulation’s term ‘work activity’ impermissibly vague as applied to
Mr. Lesh. Like many people in modern society, Mr. Lesh is an
entrepreneur who engages and promotes himself online via social
media. The government’s theory would have criminalized this, and
the social media activity of thousands, ‘whose crime would be a
photo op on public lands.’ The decision holds that creating
personal content for personal social media pages is not a crime,
even if one’s online presence is inseparable from his
job.”— Kara Rollins, Litigation Counsel,
NCLA
“Because Mr. Lesh roused the ire of Denver-area
law enforcement, the government was dead set on convicting him of
something. To obtain that conviction, the prosecution stretched the
application of the term ‘work activity’ on federal land beyond
reason, to encompass taking a photograph and posting it on a
personal social media account. The courts below all too willingly
accepted the government’s tortured interpretation of the regulation
in question. We are thrilled that the Tenth Circuit has vindicated
Mr. Lesh’s constitutional rights today. In doing so, it upholds the
rights of all Americans who might post a photo on social media of
themselves on federal land.”— Jenin Younes, Litigation
Counsel, NCLA
“Kudos to the Tenth Circuit not only for
striking down the absurd application of the Forest Service’s
regulation by prosecutors, but also for recognizing that Mr. Lesh’s
Sixth Amendment jury-trial right was likely infringed. Although
binding Supreme Court precedent prevented the panel from setting
Mr. Lesh’s conviction aside on that basis, two judges have teed up
the petty offense exception nicely for the U.S. Supreme Court’s
reconsideration.”
— Mark Chenoweth, President, NCLA
For more information visit the case
page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights
group founded by prominent legal scholar Philip Hamburger to
protect constitutional freedoms from violations by the
Administrative State. NCLA’s public-interest litigation and other
pro bono advocacy strive to tame the unlawful power of state and
federal agencies and to foster a new civil liberties movement that
will help restore Americans’ fundamental rights.
Ruslan Moldovanov
New Civil Liberties Alliance
202-869-5237
ruslan.moldovanov@ncla.legal