Colorado influencer’s conviction partially overturned on appeal

DENVER (KDVR) — A Colorado influencer’s criminal conviction over photos taken on National Forest Service Land was partially overturned by a judge who said that a vague regulation could impact others with a social media presence.

The case started in the spring of 2020 when David Lesh, a social media influencer and the owner of the outdoor gear company Virtika, posted an image on his Instagram page that appeared to depict himself riding a snowmobile over a jump at Keystone Resort , which was closed at the time due to the pandemic.

In the following months, additional posts prompted additional charges. One of the posts on his outdoor gear brand’s Instagram page showed what appeared to be Lesh, wearing some of the brand’s products, on a log that runs through Hanging Lake.

In September of that year, the U.S. charged Lesh with five counts related to his entry into Hanging Lake , most of which were later dropped. One of the initial charges for using an over-snow vehicle on National Forest Service land off of a designated route stuck.

In February 2021, the U.S. added another charge, accusing Lesh of conducting unauthorized work activity on National Forest Service land. Keystore Resort is within NFS land in the White River National Forest. The government leases acreage to Keystone Resort.

According to the USFS, “selling or offering for sale any merchandise or conducting any kind of work activity or service unless authorized by Federal law, regulation, or special use authorization,” is prohibited on forest service land .

After a bench trial in 2022, Lesh was convicted on both charges and was sentenced to six months of probation, 160 hours of community service and a $5,000 fine for each of the charges.

While his conviction of essentially trespassing under NFS regulations remains, according to an opinion written by U.S. Court of Appeals for the Tenth Circuit Judge Tymkovich, the judge decided his conviction for unauthorized work activity must be reversed.

“The regulation does not fairly warn social media users that posting images on the Internet could constitute a federal crime with imprisonment up to six months,” Tymkovich wrote. “For that reason, § 261.10(c) is impermissibly vague as applied to Mr. Lesh’s conduct.”

New Civil Liberties Alliance , which represents Lesh, said the ruling means “Mr. Lesh could not have known that taking photos on USFS land and posting them to his personal Instagram account would be punishable under the regulation.”

In the appeal ruling, the judge said the work activity regulation could become vague beyond Lesh’s case.

“Any activity that might not appear to be a work activity could later become one if an individual owns a brand or has a social media presence. The regulation therefore does not provide people of ordinary intelligence a reasonable opportunity to understand what kind of conduct is prohibited,” the judge wrote in the appeal.

Court: Lesh was not deprived of Sixth Amendment right to a jury trial

The defense also argued that Lesh should have had a jury trial.

The Sixth Amendment ensures a right to a speedy and public trial with an impartial jury, among other things. However, there is an exception for “petty crimes,” which is defined as those infractions that are publishable by a maximum penalty of six months in prison.

Because the maximum penalty that Lesh faced for each was “a fine of not more than $500 or imprisonment for not more than six months, or both,” the judge determined that he was not deprived of his Sixth Amendment right.

“Unless and until the Supreme Court reexamines the scope of the Sixth Amendment right to a jury trial, we must conclude Mr. Lesh was not deprived of his Sixth Amendment right,” the opinion states.

Lesh’s representation, NCLA, said Tenth Circuit Judge Tymkovich and Judge Rossman urged the Supreme Court to revisit the petty offense exception.

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