UNITED STATES COURT OF APPEALS July 16, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1074

DAVID LESH,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CR-00033-DDD-GPG-1) _________________________________

Richard A. Samp (Kara M. Rollins, Counsel of Record, and Mark S. Chenoweth, with her on the briefs), New Civil Liberties Alliance, Washington, D.C., for Defendant-Appellant.

Kyle Brenton, Assistant United States Attorney (Matt Kirsch, United States Attorney, with him on the brief1), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________

1 On May 31, 2024, Cole Finegan resigned as United States Attorney for the District of Colorado. Consequently, Matt Kirsch became Acting United States Attorney for the District of Colorado. He has been substituted for Cole Finegan as Acting United States Attorney. Appellate Case: 23-1074 Document: 010111079845 Date Filed: 07/16/2024 Page: 2

David Lesh is a content creator on social media and owner of an outdoor

apparel brand. At the beginning of the pandemic, Mr. Lesh posted two Instagram

photos of himself snowmobiling over a jump in a terrain park at Keystone Resort,

Colorado, at a time the ski resort was closed. The United States charged him with

two crimes based on National Forest Service (NFS) regulations: (1) using an over-

snow vehicle on NFS land off a designated route, and (2) conducting unauthorized

work activity on NFS land. After a bench trial conducted by a magistrate judge, he

was convicted of both counts.

Mr. Lesh challenges the sufficiency of the evidence to support his conviction

and makes various constitutional arguments. We affirm in part and reverse in part.

While Mr. Lesh was properly convicted of essentially trespassing under NFS

regulations, his conviction for unauthorized work activity pursuant to 36 C.F.R.

§ 261.10(c) 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. For that reason, § 261.10(c) is impermissibly vague

as applied to Mr. Lesh’s conduct.

I. Background2

Keystone Resort is located on NFS lands within the White River National

Forest. NFS lands are property of the United States of America, but the Forest

Service leases acreage to Keystone Resort. The resort is one of many ski areas

2 These facts were found by the magistrate judge to be true beyond a reasonable doubt. 2 Appellate Case: 23-1074 Document: 010111079845 Date Filed: 07/16/2024 Page: 3

owned by the Vail Corporation and closed to the public in April 2020 due to the

COVID-19 pandemic. Numerous closure signs were posted around Keystone Resort.

On April 25, 2020, the Director of Mountain Operations for Keystone Resort

was alerted to two photographs posted on Mr. Lesh’s Instagram account that day.

The photos—posted on his verified account “@davidlesh”—depict Mr. Lesh3 driving

a snowmobile over a jump in a terrain park. The

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