United States v. Lesh.
No. 23-1074. 7/16/2024. D.Colo. Judge Tymkovich. US Sentencing Guidelines—Colorado Felony Menacing—Crime of Violence.
July 16, 2024
Keystone Resort (Keystone), owned by Vail Corporation, is located within the White River National Forest on National Forest Service (NFS) land. Keystone leases acreage from the NFS lands that is part of its resort property. Keystone closed to the public in 2020 due to the COVID-19 pandemic and posted numerous closure signs around the resort. Lesh is the owner of an outdoor apparel brand, a content creator on social media, and a self-proclaimed “social media influencer.” At the beginning of the pandemic, and after Keystone closed, Lesh posted two Instagram photos of himself snowmobiling in a Keystone terrain park. Lesh was charged with violating 36 CFR § 261.14, for improperly using an over-snow vehicle on NFS land off a designated route, and 36 CFR § 261.10(c), for conducting unauthorized “work activity” at Keystone Resort on NFS land when he took a photo of himself snowmobiling for his social media account. A magistrate judge convicted him of both counts, and the district court affirmed the convictions.
On appeal, Lesh argued that the government failed to present sufficient evidence of his guilt on the both counts by not showing that the NFS lands had been designated for over-snow vehicle use and that the designations had been identified on an over-snow vehicle use map. Specifically, Lesh maintained that the online US Forest Service “winter motor vehicle use map” indicating that Keystone Resort was not an area designated for snowmobile use did not satisfy the evidentiary burden. However, Lesh did not raise this judicial notice argument before either the magistrate or the district court, so he failed to preserve it for review on appeal, and he failed to argue plain error.
Lesh also contended that Congress impermissibly delegated authority to the Department of Agriculture as applied to §§ 261.14 and 261.10(c) because the statutory delegation does not contain an intelligible principle. Lesh made this same argument to the magistrate judge. But Lesh then presented a different theory to the district court—that the regulation was a narrow delegation of authority to the Executive Branch to regulate activities occurring on NFS land that the government impermissibly expanded by extending it to conduct that occurred off NFS land, in Lesh’s home, when he clicked “post” on the Instagram photo. Because these theories are inconsistent, the Tenth Circuit declined to consider the argument.
Lesh also asserted that his conviction of unauthorized work activity on public lands was improper because 36 CFR § 261.10(c) is impermissibly vague. This regulation does not fairly give notice to social media users that posting images on the internet could constitute a federal crime with imprisonment up to six months, especially given the current prevalence to take photos to promote oneself on social media. Further, under the government’s theory, anyone who takes a photo at Keystone and later posts it on a social media account could be arrested if the posting bore some proximal relationship to a commercial undertaking. Therefore, the regulation is void for vagueness as applied because it encourages arbitrary and subjective enforcement of the regulation, and Lesh’s conviction for unauthorized work activity must be reversed.
Lesh further contended that there was insufficient evidence to find that his photoshoot at Keystone was a “work activity or service” under § 261.10(c). Here, the government argued that Lesh engaged in a work activity because his Instagram photos effectively marketed his brand Virtika. However, the post did not advertise goods or services nor reference or tag Virtika; and the mere fact that Lesh creates Instagram content, owns his own brand, and has a large Instagram following does not mean his primary purpose with every post is to sell or market Virtika products. Accordingly, there was insufficient evidence to prove beyond a reasonable doubt that Lesh posted the snowmobiling photos with the primary purpose of exchanging goods or services.
Lastly, Lesh asserted that he was deprived of his constitutional right to a trial by jury. However, Lesh was not entitled to a jury trial because the maximum penalty that he faced under either charged regulatory violation was “a fine of not more than $500 or imprisonment for not more than six months, or both.”
The conviction under 36 CFR § 261.14 was affirmed. The conviction under 36 CFR § 261.10(c) was reversed and the case was remanded for further proceedings.
The full opinion is available at https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111079845.pdf.