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U.S. v. Lesh

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CASE: U.S. v. David Lesh

STATUS: Active

NCLA ROLE: Counsel

COURTS HEARD IN: 10th Cir., D. Colo.

ORIGINAL COURT: The U.S. District Court for the District of Colorado

DECIDING COURT: U.S. Court of Appeals for the Tenth Circuit

OPENED: December 14, 2021

AGENCIES: United States

FOCUS AREAS:

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Administrative Speech Controls

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

CASE SUMMARY

Accomplished skier and Virtika apparel company owner David 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 on U.S. Forest Service-administered land was closed at the time due to Covid-19. Mr. Lesh’s post did not mention Virtika or promote its 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. 

Mr. Lesh seeks to overturn the snowmobiling-outside-designated-routes conviction by showing that prosecutors failed to show that the Forest Service ever designated where snowmobiling was and was not permitted. His conviction for unauthorized work directly violated his First Amendment free speech right, and it was upheld on the tortured theory that posting the photos meant he was performing commercial activity without proper authorization. He was effectively punished for posting photos on his personal Instagram, which is protected speech. 

Both regulations Mr. Lesh was convicted of violating were promulgated under a statute that purports to grant the Secretary of Agriculture practically unfettered legislative authority, violating 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. The statute authorizing the Secretary of Agriculture’s criminal rulemaking provides none. 

The U.S. Court of Appeals for the Tenth Circuit did overturned NCLA client David Lesh’s conviction in July 2024. The Court ruled Lesh couldn’t have known that taking photos on USFS land and posting them on Instagram would violate the rule. While the Tenth Circuit upheld his lack of a jury trial under the petty offense exception based on Supreme Court precedent, two judges suggested the exception may be unconstitutional and should be revisited.

Because these regulations each carry a prison term of six months or less, Mr. Lesh never received a jury trial, violating his Sixth Amendment rights. The petty offense exception ahistorically diverges from the right to trial by jury, directly conflicting with constitutional guarantees to criminal defendants.

In July 2024, the U.S. Court of Appeals overturned Mr. Lesh’s conviction for unauthorized “work activity or service” on USFS lands.

OUR CLIENT

David Lesh, Defendant

OUR TEAM

Mark Chenoweth
President and Chief Legal Officer
Kara Rollins
Litigation Counsel
Jenin Younes
Litigation Counsel

RELEVANT MATERIALS

NCLA FILINGS

Opinion of the U.S. Court of Appeals for the Tenth Circuit

July 16, 2024 | Read More

Defendant-Appellant's Reply Brief

October 13, 2023 | Read More

Answer Brief of the United States

September 8, 2023 | Read More

Appellant's Opening Brief

June 8, 2023 | Read More

Order Affirming Convictions

March 10, 2023 | Read More

SEE 9 FILINGS
PRESS RELEASES

Tenth Circuit Overturns NCLA Client’s Wrongful Conviction Under USFS Regulation for Instagram Post

July 16, 2024 | Read More

U.S. Forest Service Illegitimately Created Crimes, Prosecuted Skier over Instagram Post, NCLA Says

June 9, 2023 | Read More

Influencer Appeals Conviction for Posting Instagram Pic of Allegedly Illicit Snowmobiler on USFS Land

August 23, 2022 | Read More

WATCH: U.S. Forest Service Says It’s a Federal Crime to Post a Photo Using Public Lands

June 2, 2022 | Read More

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