Editor’s note: This story was originally published by The Aspen Times and was shared via AP StoryShare.
The man convicted of two petty offenses for illegally riding his snowmobile at Keystone resort and unauthorized use of national forest for commercial gain didn't face his day of reckoning Tuesday.
David Lesh was convicted in federal court on Oct. 22 for two petty offenses for his sled ride at Keystone during the pandemic shutdown. He was supposed to be sentenced Tuesday but Lesh earlier this month fired the attorney who represented him and his new attorney is not available to take over the case until Wednesday, one day after the scheduled sentencing.
U.S. Magistrate Judge Gordon Gallagher made it clear in an order he issued Sunday that he is “less than pleased” with the circumstances.
“Nevertheless, that is the current state of the matter and the Court has no real choice other than to deal with this action from the current procedural posture,” Gallagher wrote.
The judge will use the time set aside for sentencing Tuesday for a hearing on the motion by attorney Eric Faddis to withdraw from the case. A motion filed for Lesh by another attorney suggested Faddis did not properly represent Lesh during a one-day trial in August. It is unknown at this point if Lesh will file an ineffective assistance claim against Faddis.
Meanwhile, in a separate but related action, Lesh is working with a nonprofit group based in Washington, D.C., to appeal his conviction on grounds that it was allegedly unconstitutional. Lesh contacted the New Civil Liberties Alliance on Nov. 29 to explore an appeal.
“Mr. Lesh began that conversation by explaining that his strong grounds for an appeal included the fact that his prosecution … was unconstitutional, in part, because it violated the First Amendment — an issue he said he had discussed with his trial counsel (Faddis) and believed was raised during trial,” said a motion filed by the alliance.
An attorney for the alliance said he checked the court record and talked to Faddis to determine there was no formal motion made for acquittal at trial on the grounds a conviction would be unconstitutional.
The New Civil Liberties Alliance argued that since Faddis did not argue the issue in a timely manner, Lesh should be allowed to raise it now even though it was required to be filed within 14 days of conviction.
“The delay was not fairly within Mr. Lesh’s control,” the motion said, later adding, “Our legal tradition favoring a defendant’s right to have his conviction based on the legal merits clearly favor this Court’s excusal of any possible neglect by Mr. Lesh’s trail counsel in this instance.”
The U.S. Attorney’s Office opposed allowing Lesh to mount this specific type of appeal after the deadline.
“Now, on the eve of sentencing, he asks to file a motion raising an argument that he acknowledges could have been made at trial or filed weeks ago within the 14-day deadline,” said a motion by Assistant U.S. Attorney Pete Hautzinger. Lesh waited for 35 days after the conviction to speak to a new counsel about a possible appeal.
“The Defendant appears to be attempting to use this out-of-time motion as a way to backdoor an argument that would otherwise be forfeited on appeal. This Court should not allow him to do so,” Hautzinger said in his motion.
The U.S. Attorney’s Office noted the Lesh case spurred significant amounts of public interest and media coverage in Colorado.
“The government and the public have a substantial interest in gaining closure and having this case sentenced in a timely manner,” Hautzinger wrote in the motion.
Jared McClain, an attorney with the New Civil Liberties Alliance, responded in a motion that the government and public should be interested “in seeing justice done” rather than a speedy conclusion to the case.
The government opposes David Lesh’s motion for leave based on the mistaken premise that sentencing Mr. Lesh as quickly as possible is more important to the public than ensuring his conviction is constitutional,” McClain’s motion said.
The two sides are wrangling over the timing issue rather than Lesh’s claim that his freedom of speech right was violated. McClain briefly outlined that issue by noting Lesh’s posting of photos of himself undertaking activities such as snowmobiling on national forestland should not require a permit. Lesh was accused of using the photos to promote his outdoor clothing brand.
The order issued Sunday by the judge indicated he is ready to move ahead with sentencing. He said Lesh must be prepared to address his efforts to retain a new counsel at Tuesday’s hearing so that a new sentencing date can be set.
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