WASHINGTON, D.C. — The U.S. Tenth Circuit Court of Appeals on Tuesday overturned the conviction of a Colorado man who was accused of violating U.S. Forest Service (USFS) regulations to promote his outdoor apparel company.
In October 2021, David Lesh was found guilty of violating USFS rules for snowmobiling at Keystone Resort in April 2020 and posting photos to Instagram to promote his outdoor apparel company, Virtika. The resort was closed to the public due to the COVID-19 pandemic.
Lesh was accused of violating a Forest Service regulation that banned unauthorized "work activity or service" on USFS lands. At the time, a judge from the U.S. District Court of Colorado ruled that posting those images “constituted selling or offering for sale merchandise or conducting unauthorized work activity on National Forest Service lands."
Lesh was sentenced to six months of probation, 160 hours of community service and a $10,000 fine.
Crime
Man found guilty of violating National Forest lands to promote company
In a release Tuesday, the New Civil Liberties Alliance, which represented Lesh, said the appeals court ruled the regulation is "impermissibly vague" and Lesh could not have known that he was violating said rule.
"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," said Kara Rollins, litigation counsel for NCLA, in a statement.
In addition, the appeals court determined that Lesh was not deprived of his Sixth Amendment right to a jury trial because the "petty offense exception" applied. The Sixth Amendment guarantees everyone the right to a jury trial in criminal cases, but in cases where the penalty for the crime is six months imprisonment or less, there is no such guarantee. In a concurrence, however, two judges "implied that the exception might be inconsistent with the Constitution and should be revisited" by the U.S. Supreme Court, according to NCLA.
In Lesh's case, though he was charged with petty crimes, the possible term of imprisonment exceeded six months. NCLA said Lesh should have been allowed a jury trial and applauded the judges for suggesting that the exception be reviewed.
“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," said Mark Chenoweth, president of the NCLA, in a statement.
