U.S. v. David Lesh

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Washington, DC (June 9, 2023) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties organization, filed an opening brief with the U.S. Court of Appeals for the Tenth Circuit last night, appealing its client David Lesh’s contested criminal convictions for violating two regulations promulgated by the U.S. Forest Service (USFS). NCLA argues that the government failed to prove essential elements of its allegations, and it punished Mr. Lesh in violation of his First Amendment free speech rights. In addition, because these regulatory violations are classified as so-called petty offenses, the courts below denied Mr. Lesh his Sixth Amendment right to a trial by jury. Finally, Lesh’s convictions must be overturned because the regulations USFS promulgated specify criminal violations, a legislative function that is solely Congress’s prerogative.

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. Mr. Lesh was sentenced to six months’ probation, 160 hours of community service, and a $10,000 fine. In March, the U.S. District Court for the District of Colorado affirmed Mr. Lesh’s earlier convictions. NCLA is now asking the Tenth Circuit to overturn them.

Mr. Lesh’s first conviction should not have happened when the USFS apparently had not published a legally required route map ahead of time. Mr. Lesh’s second conviction, for unauthorized work, directly violates his First Amendment right to free speech. That conviction was upheld on the tortured theory that posting the photos meant he was performing commercial activity without proper authorization. In effect, he was punished for posting photos on his personal Instagram, which is protected speech.

The two regulations Mr. Lesh was convicted of violating were promulgated under a statute that purports to grant the Secretary of Agriculture practically unfettered legislative authority, in violation of the Vesting Clause of Article I of the Constitution. That provision places “All legislative Powers” in Congress, so agencies like USFS can only act if Congress provides an “intelligible principle” to guide their application of the law. But the statute authorizing the Secretary of Agriculture’s criminal rulemaking provides none.

Because each of the regulations carries a prison term of six months or less, Mr. Lesh never received a jury trial, depriving him of his Sixth Amendment rights as well. The petty offense exception is an ahistorical divergence from the right to trial by jury, and it stands in direct conflict with the Constitution’s guarantees to criminal defendants—particularly when the two convictions had the potential to send Mr. Lesh to prison for a year.

NCLA released the following statements:

“Every American should be concerned that agencies, like the U.S. Forest Service, believe that they can criminalize activity based on an open-ended delegation, with no input from Congress and in violation of the Constitution’s design. This case also tees up the deeply problematic petty offense exception, which categorically denies some criminal defendants their Sixth Amendment right to a trial by jury. Under the Constitution, the ‘all’ in ‘all criminal prosecutions’ means just that, and it is time the absolute right to trial by jury is restored.”
— Kara Rollins, Litigation Counsel, NCLA

“Mr. Lesh is being prosecuted for his speech—that is, for his decision to post photos on the internet. The Government is restricting his speech based on its content—the Government does not want people publicizing their activities on Forest Service land. The First Amendment prohibits such content-based speech restrictions.”
— Richard Samp, Senior Litigation Counsel, 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.

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Washington, DC (August 23, 2022) – Colorado influencer and entrepreneur David Lesh was charged and convicted in federal court for driving a snowmobile off a designated route and selling merchandise or conducting work activity on U.S. Forest Service (USFS) land. Mr. Lesh, who owns Virtika, an outdoor apparel company, posted a photo on his personal Instagram account (not Virtika’s account) depicting an individual snowmobiling at the Keystone Ski Resort near Denver, along with the comment, “solid ski sesh, no lift ticket needed.” Prosecutors argued that the post proves Mr. Lesh was in an off-limits section of the resort on a particular date when the park was closed. Following a bench trial by a federal magistrate, he was sentenced to six months’ probation, 160 hours of community service, and a total fine of $10,000.

Today, the New Civil Liberties Alliance filed an opening brief appealing Lesh’s conviction in the U.S. District Court for the District of Colorado, arguing that prosecutors failed to prove his guilt of both counts beyond a reasonable doubt, that the bench trial denied his right to a trial by jury on criminal charges, that the court erred by allowing inadmissible material into evidence, and that the USFS’s interpretation of the statute was wrong, would violate the First Amendment, and would raise serious nondelegation questions.

The prosecution’s proof is fatally flawed. The person snowmobiling in the photograph cannot be identified in any way, since the face is not visible and no part of the body is exposed. No brand name can be seen on the clothing, nor was Virtika mentioned or tagged in the post on Lesh’s personal Instagram account. The photograph could have been taken on a date when the area was open to the public. NCLA argues there was insufficient evidence to prove Lesh was at Keystone on April 24, and no evidence at all that he sold merchandise or conducted work activity on federal land. Moreover, Congress did not delegate to USFS authority to prosecute someone for posting a photograph on social media, so interpreting the law to cover Mr. Lesh’s conduct is unconstitutional.

Prosecutors originally charged Mr. Lesh with various trespassing-related offenses based on photographs appearing to show his unlawful entry into Hanging Lake, a protected land. Those charges were dropped when the government realized Lesh had faked those photos. The determination to hold Mr. Lesh criminally liable for something anyway—regardless of whether he had, in fact, committed a crime—explains why USFS contorted the regulations far beyond reason. But animus does not justify the agency’s wild and warped legal interpretations.

Furthermore, the trial court committed reversible error by permitting the prosecutor to enter into evidence a 15-page New Yorker profile of Mr. Lesh. The article contained several layers of hearsay as the journalist who wrote it was not called to testify. The piece was replete with irrelevant, personal, and prejudicial information, as well as the author’s observations and impressions of Mr. Lesh, making it inadmissible under Federal Rules of Evidence. Both the New Yorker article and other bad acts evidence that the court admitted served as grounds for the guilty verdict, as explicitly stated in the magistrate’s written order. These serious evidentiary errors, along with the myriad statutory and constitutional issues with this case, require reversal and vacatur of Mr. Lesh’s convictions.

NCLA released the following statements:

“The U.S. Forest Service has reached a new low by pursuing a case against Mr. Lesh for posting photos on his Instagram account. To secure a conviction in this case, both the prosecutor and the court twisted the law far beyond any reasonable interpretation. In the process, they violated Mr. Lesh’s constitutional rights. We are confident that on appeal, Mr. Lesh will prevail.”
— Jenin Younes, Litigation Counsel, NCLA

 “The right to trial by jury ‘in all criminal prosecutions,’ is protected by the Sixth Amendment and must be held sacrosanct. By instead allowing Mr. Lesh’s criminal case to be decided—over his objection—by a magistrate who is not even an Article III judge appointed by the President and confirmed by the Senate, this prosecution fell far short of the Sixth Amendment’s guarantee. NCLA is determined to ultimately restore Mr. Lesh’s jury trial rights.”
— Mark Chenoweth, President, NCLA

For more information visit the case page here and watch the case video 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.

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Washington, DC (June 2, 2022) – Colorado resident David Lesh faces six months’ probation, 160 hours of community service, and a $10,000 fine for posting a photo on his personal Instagram account that allegedly depicted him snowmobiling over a jump at a closed ski resort. Mr. Lesh, who owns an outdoor apparel company, was charged pursuant to an overbroad delegation by Congress, that allows the U.S. Forest Service to make it a crime to sell merchandise or engage in commercial activity on its land without authorization.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, released a video today featuring his case, United States v. David Lesh, arguing Congress has unlawfully divested itself of the power to write criminal laws related to the management of national forest lands. The agency has also failed to take into consideration Mr. Lesh’s First Amendment right to post a photo to his Instagram account.

The legislative delegation at issue, which authorized the Secretary of Agriculture to make rules to prevent trespasses and regulate the use of occupancy of national forest lands, is impermissibly vague, as Mr. Lesh’s case demonstrates. The reason the Government charged him with unauthorized sale is that Mr. Lesh had stated, in an interview with The New Yorker, that his sales had unexpectedly increased as a result of the publicity that the case had received.

Congress only gave the U.S. Forest Service authority to enact regulations to prevent physical trespass of the land. The law in question had nothing to do with someone incidentally profiting because he was charged with a federal offense. Yet, a federal magistrate found him guilty of operating a snowmobile off of a designated route, and conducting unauthorized work or sale on federal lands.

Beyond the serious constitutional concerns raised here, the Government also lacks sufficient proof to support the charges. There was no evidence that Mr. Lesh was the person in the photo, as the face of the individual cannot be discerned. There was also no evidence whatsoever that Mr. Lesh sold merchandise or conducted any work activity upon lands administered by the U.S. Forest Service. NCLA is asking the U.S. District Court for the District of Colorado to reverse the magistrate’s determination and vacate the sentence.

Excerpts from the video:

“I never in a million years thought that I would be charged with 12 federal crimes for posting content to my Instagram. … If this sets a precedent that anyone who owns any company can’t post a picture of themselves in a national park or national forest or just skiing with their friends it’s really a dangerous and slippery slope.”
— David Lesh, Defendant, United States v. David Lesh

“This is selective prosecution against David. If you go on the internet, you can find images of many people in the same places doing similar things, but those people aren’t being prosecuted. … This is unlawful for a couple of reasons. First of all, because Congress should be making the laws, and so an agency having the authority to enact regulations that end up with someone having a criminal prosecution, particularly one for which they could be facing jail time … violates our separation of powers. It’s also unlawful because David has a First Amendment right to post photos on Instagram.”
— Jenin Younes, Litigation Counsel, 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.

Download the full document