United States v. Lesh

107 F.4th 1239

UNITED STATES of America, Plaintiff - Appellee, v. David LESH, Defendant - Appellant.

No. 23-1074

United States Court of Appeals, Tenth Circuit

FILED July 16, 2024

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CR-00033-DDD-GPG-1)

Richard A. Samp (Kara M. Rollins, Counsel of Record, and Mark S. Chenoweth, with her on the briefs), New Civil Liberties Alliance, Washington, D.C., for Defendant-Appellant.

Kyle Brenton, Assistant United States Attorney (Matt Kirsch, United States Attorney, with him on the brief¹). Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before TYMKOVICH, BALDOCK, and ROSSMAN, Circuit Judges.

TYMKOVICH, Circuit Judge.

David Lesh is a content creator on social media and owner of an outdoor apparel brand. At the beginning of the pandemic, Mr. Lesh posted two Instagram photos of himself snowmobiling over a jump in a terrain park at Keystone Resort, Colorado, at a time the ski resort was closed. The United States charged him with two crimes based on National Forest Service (NFS) regulations: (1) using an over-snow vehicle on NFS land off a designated route, and (2) conducting unauthorized work activity on NFS land. After a bench trial conducted by a magistrate judge, he was convicted of both counts.

Mr. Lesh challenges the sufficiency of the evidence to support his conviction and makes various constitutional arguments. We affirm in part and reverse in part. While Mr. Lesh was properly convicted of essentially trespassing under NFS regulations, his conviction for unauthorized work activity pursuant to 36 C.F.R. § 261.10(c) must be reversed. The regulation does not fairly warn social media users that posting images on the Internet could constitute a federal crime with imprisonment up to six months. For that reason, § 261.10(c) is impermissibly vague as applied to Mr. Lesh's conduct.

I. Background²

Keystone Resort is located on NFS lands within the White River National Forest. NFS lands are property of the United States of America, but the Forest Service leases acreage to Keystone Resort. The resort is one of many ski areas owned by the Vail Corporation and closed to the public in April 2020 due to the COVID-19 pandemic. Numerous closure signs were posted around Keystone Resort.

On April 25, 2020, the Director of Mountain Operations for Keystone Resort was alerted to two photographs posted on Mr. Lesh's Instagram account that day. The photos—posted on his verified account "@davidlesh"—depict Mr. Lesh³ driving a snowmobile over a jump in a terrain park. The caption reads: "Solid park sesh, no lift ticket needed." Later, Mr. Lesh added the hashtag "#fuckvailresorts."

Keystone Resort employees also discovered someone had taken a shovel from a utility shed near the terrain park and dug a path through a snow barrier that was built to make the park inaccessible. The path was large enough for a snowmobile to access the jump, and the snowmobile tracks indicated the snowmobiler went over the jump multiple times and rode his snowmobile around other parts of the closed resort.

In the following months, Mr. Lesh posted two more photos on Instagram of him ostensibly on closed NFS lands in Colorado. In one, he posted a photo of himself standing on a log in the middle of Hanging Lake, a popular hiking trail in central Colorado. Another post showed him defecating in Maroon Lake near Aspen. Mr. Lesh claims he photoshopped the images.

A few months later, in January 2021, the New Yorker published a profile of Mr. Lesh entitled "Trolling the Great Outdoors." It quotes Mr. Lesh as saying "[t]he more hate I got, the more people got behind me, from all over the world . . . . It was an opportunity to reach a whole new group of people—while really solidifying the customer base we already had." He went on to claim that he posted the Hanging Lake and Maroon Lake images because he "wanted [the government] to charge me with something. The only evidence they have is the photos I posted on Instagram, which I know are fake, because I faked them. I was pissed off about them charging me for the snowmobiling . . . with zero evidence. I realized they are quick to respond to public outcry. I wanted to bait them into charging me." The article also notes that Mr. Lesh markets his clothing brand, "Virtika," on social media and that sales increased after he posted the photo at Hanging Lake. In a later interview, Mr. Lesh said "nothing [in the New Yorker article] was untrue or unfair, but it only captures one aspect of me, one part of my life, one part of our marketing, one part of my company."

Mr. Lesh was initially charged in September 2020 with violating 36 C.F.R. § 261.14 for improperly using an over-snow vehicle on NFS land. He was also charged with five additional counts related to his entry into Hanging Lake, but these were later dropped. In February 2021, the United States filed a superseding indictment adding a new charge under 36 C.F.R. § 261.10(c) for conducting work activity at Keystone Resort.

Following a bench trial, a magistrate judge found Mr. Lesh guilty of both charges. He was required to pay $5,000 for each count, plus a special assessment of $25 per count, and perform 160 hours of community service. The district court affirmed his convictions.

II. Analysis

Mr. Lesh makes four arguments on appeal: (1) the government failed to present sufficient evidence to demonstrate his guilt on either count, (2) § 261.10(c) is overly vague and violates his Fifth Amendment rights, (3) the statute authorizing promulgation of the two regulations lacks an intelligible principle, and (4) he was deprived of his Sixth Amendment right to a trial by jury.⁴

We address each in turn.

A. Operating a snowmobile in violation of 36 C.F.R. § 261.14

Mr. Lesh argues the government was required to show that the NFS lands had "been designated for over-snow vehicle use" and that "these designations [had] been identified on an over-snow vehicle use map." Aplt. Br. at 17. Specifically, Mr. Lesh asserts the over-snow vehicle use map, of which the magistrate judge took judicial notice, does not satisfy the evidentiary burden.

The Department of Agriculture regulations prohibit snowmobiling except on terrain that has been designated for that purpose and snowmobilers have notice of permitted terrain:

After National Forest System roads, National Forest System trails, and areas on National Forest System lands have been designated for over-snow vehicle use pursuant to 36 CFR 212.81 on an administrative unit or a Ranger District of the National Forest System, and these designations have been identified on an over-snow vehicle use map, it is prohibited to possess or operate an over-snow vehicle on National Forest System lands in that administrative unit or Ranger District other than in accordance with those designations[.]

36 C.F.R. § 261.14 (emphasis added).⁵

At trial, the government did not affirmatively present evidence of map-posting. But as a part of his ruling on the charge, the magistrate judge took judicial notice of a publicly available "winter motor vehicle use map" provided online by the Forest Service. The map indicates Keystone Resort is not an area designated for snowmobile use. The magistrate judge therefore concluded Mr. Lesh operated a snowmobile on NFS lands outside of areas designated for snowmobile use.

Mr. Lesh claims the judicially noticed map is insufficient to satisfy the notice requirement of § 261.14 because it is not clear when it was published—in other words, because the map does not have a date of publication, it is unclear whether it was posted before Mr. Lesh accessed the terrain park. Mr. Lesh argues that "the fact of which the magistrate judge sought to take judicial notice—that the Forest Service had posted an over-snow vehicle use map. . . as of April 24, 2020—is simply not capable of accurate and ready determination." Aplt. Br. at 21 (internal quotation marks omitted).

But Mr. Lesh makes this argument for the first time on appeal. We therefore find Mr. Lesh has waived this challenge to the propriety of the magistrate judge's judicial notice.⁶

After trial, Mr. Lesh moved for leave to file an untimely motion for judgment of acquittal but did not challenge judicial notice. Then, on appeal to the district court, Mr. Lesh challenged the sufficiency of the government's evidence: "the Government provided not an iota of proof for one [ ] element, specifically that the over-snow designations be made available to the public." Aplt. App. Vol. I at 89. He—again—did not challenge the judicial notice as improper, argue the judicially-noticed map was undated, and did not question whether it was posted before he accessed the terrain park. "When a defendant challenges in district court the sufficiency of the evidence on specific grounds, all grounds not specified in the motion are waived." United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (internal quotation marks omitted). Mr. Lesh did not raise this judicial notice argument at the magistrate level nor before the district court. Thus, he failed to preserve it for review on appeal.

Mr. Lesh also fails to argue plain error. "When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise." See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). "We might elect to consider Defendant's argument if the Government neglected to raise either Defendant's failure to preserve his insufficient-evidence challenge or his failure to argue for plain error in his opening brief." Id. at 1199. But the government raised Mr. Lesh's failure to argue plain error in his opening brief. Thus, under these circumstances, we do not believe reviewing Mr. Lesh's judicial notice argument would serve the adversarial process.⁷

Mr. Lesh next argues Congress...