United States v. David Lesh
Washington, D.C., Aug. 23, 2022 (GLOBE NEWSWIRE) -- 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.