Lawyers begin attempt to appeal conviction of social media influencer David Lesh, who was accused of committing crimes at Keystone Resort

Editor’s note: This story has been updated to correct the name of New Civil Liberties Union.

Colorado influencer and entrepreneur David Lesh was charged and convicted in federal court last fall for illegally driving a snowmobile at Keystone Resort’s terrain park while the resort was closed during the COVID-19 pandemic.

New Civil Liberties Alliance filed a brief on Tuesday appealing Lesh’s conviction in U.S. District Court for the District of Colorado. His lawyers argued that prosecutors failed to prove his guilt, the bench trial denied his right to a trial by jury on criminal charges, the court erred by allowing inadmissible material into evidence, and the U.S. Forest Service’s interpretation of the statute was wrong. They said these issues violate the First Amendment and would raise serious nondelegation questions.

Lesh, who owns Virtika, an outdoor apparel company, posted a photo on his personal Instagram 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.

The New Civil Liberties Alliance argued in its brief the snowmobiler cannot be identified because the individual’s face isn’t visible. Lesh’s representatives said no brand name is on the individual’s clothing and Virtika was not mentioned or tagged in the Instagram post, in addition to insufficient evidence proving the photograph was taken on the date when the area was not open to the public

Moreover, the New Civil Liberties Alliance argued Congress did not delegate authority to the Forest Service to prosecute someone for posting a photograph on social media, so interpreting the law to cover Mr. Lesh’s conduct is unconstitutional.

New Civil Liberties Alliance lawyers also claimed the court admitted hearsay evidence from a New Yorker profile on Lesh.

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