Monte Wells Appeal to 10th Circuit

8/16/2019 Monte Wells Appeal to 10th Circuit

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CASE NO. 16-4006

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, ))

Plaintiff – Appellee, ))

v. ))

MONTE JEROME WELLS, ))

Defendant – Appellant. )

On Appeal from the United States District CourtFor the District of Utah, Central Division

The Honorable David NufferD.C. No. 2:14-CR-00470-DN-2

APPELLANT’S OPENING BRIEF

Respectfully submitted,

MICHELLE MUMFORDMumford PC405 S. Main Street, Suite 975Salt Lake City, Utah 84111Telephone: (801) 428-2000Email: [email protected]

Oral argument is requested.

SCANNED PDF FORMAT ATTACHMENTS ARE INCLUDED

May 18, 2016


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... 3

PRIOR OR RELATED APPEALS ............................................................................ 8

JURISDICTIONAL STATEMENT .......................................................................... 8

STATEMENT OF THE ISSUES............................................................................... 9

STATEMENT OF THE CASE ................................................................................ 10

STATEMENT OF FACTS ...................................................................................... 13

SUMMARY OF THE ARGUMENT ...................................................................... 31

ARGUMENT ........................................................................................................... 33

THE DISTRICT COURT SHOULD HAVE DISQUALIFIED ITSELF SUASPONTE FROM THE TRIAL ...................................................................... 33

The Standard For Disqualification Under 28 U.S.C. § 455(a) ............ 34

Evidence of Impartiality During Voir Dire ......................................... 36

Evidence of Impartiality During Trial ................................................. 39

THE GOVERNMENT FAILED TO PROVE CONSPIRACY BEYOND AREASONABLE DOUBT .............................................................................. 44

DEFENDANTS HAD STANDING TO ASSERT A RIGHT-OF-WAYDEFENSE, AND THE DISTRICT COURT IMPROPERLY PRECLUDEDDEFENDANTS FROM PRESENTING EVIDENCE REGARDING THE

LEGALITY OF THE ROAD CLOSURE ..................................................... 50

THE GOVERNMENT DID NOT MEET ITS BURDEN TO PROVERESTITUTION ............................................................................................. 57

Actual Loss .......................................................................................... 58


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TABLE OF AUTHORITIES

CASES

Brandenburg v. Ohio,395 U.S. 444 (1969)........................................................................... 33, 46-47

Brotherhood of R.R. Trainmen v. Virginia,377 U.S. 1 (1964) ........................................................................................... 49

Griffin v. California,380 U.S. 609 (1965)....................................................................................... 58

Krulewitch v. United States,

336 U.S. 440 (1949)....................................................................................... 63

Liljeberg v. Health Servs. Acquisition Corp.,486 U.S. 847 (1998)........................................................................... 35, 36-38

Mathis v. Huff & Puff Trucking, Inc.,787 F.3d 1297 (10th Cir. 2015) ..................................................................... 36

National Ass’n for Advancement of Colored People v. Button,371 U.S. 415 (1963)....................................................................................... 49

Nichols v. Alley,71 F.3d 347 (10th Cir. 1995) ......................................................................... 36

O’Rourke v. City of Norman,875 F.2d 1465 (10th Cir. 1989) ..................................................................... 37

Southern Utah Wilderness Alliance v. Bureau of Land Mgmt ,425 F.3d 741 (10th Cir. 2005) ....................................................................... 53

United States v. Barrett ,496 F.3d 1079 (10th Cir. 2007) ..................................................................... 48

United States v. Barton,731 F.2d 669 (10th Cir. 1984) ....................................................................... 55


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United States v. Brown,Case No. 2:11-cr-39 (D. Utah 2011) ................................................. 61, 65-66

United States v. Burger ,964 F.2d 1065 (10h Cir. 1992) ...................................................................... 36

United States v. Butler ,494 F.2d 1246 (10th Cir. 1974) ............................................................... 33, 45

United States v. Cooley,1 F.3d 985 (10th Cir. 1993) ............................................................... 32, 35-38

United States v. Coppola,479 F.2d 1153 (10th Cir. 1973) ..................................................................... 63

United States v. Cordoba,71 F.3d 1543 (10th Cir. 1995) ....................................................................... 48

United States v. Dahlstrom,713 F.2d 1423 (9th Cir. 1983) ....................................................................... 47

United States v. Ferdman,779 F.3d 1129 (10th Cir. 2015) ............................................................... 59, 61

United States v. Fox,902 F.2d 1508 (10th Cir. 1990) ............................................................... 33, 45

United States v. Greenspan,26 F.3d 1001 (10th Cir. 1994) ....................................................................... 35

United States v. Gross,375 F.Supp. 971 (D.N.J. 1974) ...................................................................... 52

United States v. Hughes,33 F.3d 1248 (10th Cir. 1994) ....................................................................... 51

United States v. Jessop,2010 WL 5395091 (10th Cir. 2010) .................................................. 53-55, 66


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United States v. Matei,2007 WL 279874 (E.D.N.C. 2007) ............................................................... 63

United States v. Meredith,685 F.3d 814 (9th Cir. 2012) ......................................................................... 47

United States v. Milton,2001 WL 310410 (10th Cir. 2001) .......................................................... 46-47

United States v. Papagno,639 F.3d 1093 (D.C. Cir. 2011) ..................................................................... 62

United States v. Pearson,203 F.3d 1243 (10th Cir. 2000) ..................................................................... 35

United States v. P.H.E., Inc.,965 F.2d 848 (10th Cir. 1992) ................................................................. 48, 50

United States v. Quarrell,310 F.3d 664 (10th Cir. 2002) ........................................................... 34, 60-61

United States v. Quintanilla,193 F.3d 1139 (10th Cir. 1999) ..................................................................... 52

United States v. Russell,963 F.2d 1320 (10th Cir. 1992) ..................................................................... 63

United States v. Sams,45 F.Supp.3d 524 (E.D.N.C. 2014) ............................................................... 66

United States v. Shengyang Zhou,717 F.3d 1139 (10th Cir. 2013) ............................................................... 59-60

United States v. Silverstein,737 F.2d 864 (10th Cir. 1984) ....................................................................... 63

United States v. Speakman,594 F.3d 1165 (10th Cir. 2010) ............................................................... 59, 62


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United States v. Thompson,518 F.3d 832 (10th Cir. 2008) ................................................................. 33, 46

United States v. Velarde,485 F.3d 553 (10th Cir. 2007) ................................................................. 51-52

United States v. Zimmerman,943 F.2d 1204 (10th Cir. 1991) ..................................................................... 51

United Transp. Union v. State Bar of Michigan,401 U.S. 576 (1971)....................................................................................... 49

Walters v. National Ass’n of Radiation Survivors,473 U.S. 305 (1985)....................................................................................... 49

STATUTES

18 U.S.C. § 2 ........................................................................................................ 7, 19

18 U.S.C. § 371 ........................................................................................................ 11

18 U.S.C. § 3663A ............................................................................................. 59, 62

18 U.S.C. § 3664 ...................................................................................................... 59

28 U.S.C. § 455 ............................................................................................ 32, 35-36

28 U.S.C. 2409a ....................................................................................................... 21

43 U.S.C. § 932 ........................................................................................................ 21

43 U.S.C. § 1701 ...................................................................................... 7, 11, 19, 53

43 U.S.C. § 1733 ............................................................................................ 7, 11, 19

OTHER

43 C.F.R. 8340 ......................................................................................................... 53

43 C.F.R. § 8341 ..........................................................................7, 11, 19, 21, 53, 55


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Steven R. Morrison, System of Modern Criminal Conspiracy,63 Catholic Univ. L. Rev. 371 (2014) ........................................................... 46


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PRIOR OR RELATED APPEALS

United States v. Lyman, 10th Cir. Case No. 16-4007.

JURISDICTIONAL STATEMENT

The district court properly exercised jurisdiction over this case involving

violations of federal law. See 43 U.S.C. §§ 1701, 1733; 43 C.F.R. § 8341.1(c); and

18 U.S.C. § 2.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

On January 12, 2016, Mr. Wells filed a timely notice of appeal of the district

court’s final judgment, filed on December 29, 2015. (Dkt. 253.)

This appeal is from a final judgment that disposes of all of Mr. Wells’

claims.


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STATEMENT OF THE ISSUES

Issue #1: Does the failure of the district judge to disqualify himself when his

impartiality in a case could reasonably have been questioned – as he later admitted

based on his personal relationship with an environmental group seeking to

influence the defendant’s sentencing – require that the defendant’s conviction be

vacated?

Issue #2: Did the government prove beyond a reasonable doubt that the

defendant was engaged in a conspiracy to operate off-road vehicles on public lands

where the “manner and means” of the alleged conspiracy were acts of journalism

protected by the First Amendment?

Issue #3: Does an individual defendant have standing to assert a “R.S.

2477” defense, or in the alternative, did the district court improperly preclude

evidence relating to the def endant’s belief concerning the legality of the Bureau of

Land Management’s road closure to support his good faith defense?

Issue #4: Did the district court err in finding that defendants “directly

caused” over $95,955 in “actual loss,” where the government expended more than

$65,500 to determine merely that archeological sites “showed signs of being driven

over,” and where only $11,800 was expended to repair any actual damage to the

trail?


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STATEMENT OF THE CASE

Monte Wells is the owner and reporter for The Petroglyph, a small,

independent blog that reports on local issues impacting San Juan County, Utah.

(Aplt. App. at 745, 795-96.) In 2014, Mr. Wells began reporting on the brewing

political dispute between local authorities, including San Juan County

Commissioner Phillip Lyman, and the Bur eau of Land Management (“BLM”),

which had restricted off-road motorized vehicles from accessing an area of San

Juan County known as Recapture Canyon. (Aplt. App. at 49-52.)

In the spring of 2014, Commissioner Lyman organized a political protest

against BLM’s “temporary” closure of a portion of Recapture Canyon to off -road

motorized traffic. (Aplt. App. at 617, 633.) Mr. Wells began reporting on the

upcoming protest on The Petroglyph website – which was not the only interested

media, as one of the government’s eyewitnesses encountered documentary

filmmakers “want[ing] to capture what happened the day of the protest ride.”

(Aplt. App. at 568-69.) Unbeknownst to Mr. Wells at the time, the government was

coordinating efforts with the Southern Utah Wilderness Alliance (“SUWA”), and

other environmental groups, in efforts to collect evidence and prosecute

Commissioner Lyman and others for what they characterized as the “illegal”

protest ride scheduled for May 10, 2014. (Aplt. App. at 1118-75.)


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On September 17, 2014, the government filed a criminal information, and on

December 5, 2014, a superseding criminal information, against Commissioner

Lyman, Mr. Wells, and other defendants, charging them with one count of

misdemeanor conspiracy to Operate Off-Road Vehicles On Public Lands Closed

To Off-Road Vehicles, in violation of 18 U.S.C. § 371, and one count of Operation

Of Off-Road Vehicles On Public Lands Closed To Off-Road Vehicles, in violation

of 43 U.S.C. §§ 1701 & 1733, 43 C.F.R. § 8341.1(c). (Aplt. App. at 9, 38-42.) The

government’s allegations against Mr. Wells were limited to (1) an “invitation” to

the ATV protest ride in Recapture Canyon that was published on The Petroglyph,

(2) the three-part interview that Mr. Wells had conducted with Commissioner

Lyman about the Recapture Canyon issue, (3) “various social media websites”

where Commissioner Lyman and Mr. Wells purportedly “advertis[ed] and

promot[ed]” the proposed protest ride in Recapture Canyon, and (4) that Mr. Wells

“knowingly and willfully operated an off -road vehicle through the off-road vehicle

restricted area of Recapture Canyon” on May 10, 2014. (A plt. App. at 38-42.)

Notwithstanding the minimal level of Mr. Wells’ involvement in the

government’s alleged “conspiracy” with his journalistic endeavors, and undisputed

evidence that the San Juan Water Conservancy District had given Commissioner

Lyman and the rest of the protest riders express permission to use its right-of-way


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to ride the Recapture Canyon road on May 10, 2014, a jury convicted Mr. Wells on

both counts. (Aplt. App. at 858-61, 943-44.)

It was not until several weeks later that Judge Shelby disclosed in a status

hearing of jointly managed public roads cases regarding his longstanding close,

personal relationship with SUWA’s legal director, Steve Bloch. (A plt. App. at

1096-98.) Judge Shelby recused himself based on the fact that SUWA and other

environmental groups sent him a letter to influence sentencing, which “would lead

a reasonable person to question the court’s impartiality in this case.” (Aplt. App. at

1231-36.) But the full record of SUWA’s involvement showed that Bloch attended

almost every day of Mr. Wells’ trial, and Judge Shelby did not raise any issue

despite the fact that the defendants specifically asked him to inquire of any

affiliation that potential jurors had with SUWA or related groups. (Aplt. App. at

1097, 1235-36.)

In August 2015, Mr. Wells and Commissioner Lyman moved for a new trial

based on the discovery of a 1979 BLM Map showing that the Recapture Canyon

road the defendants traveled on May 10, 2014 was a public road pursuant to a

“R.S. 2477 right-of-way.” (A plt. App. at 1176-230.) On October 22, 2015, District

Judge David Nuffer denied the motion for new trial, and on December 18, 2015,

sentenced Mr. Wells to five (5) days incarceration, 36 months probation, a $50


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assessment, a $500 fine, and $48,000 in restitution. (Aplt. App. at 1318-28, 1388-

94.) Mr. Wells filed this timely appeal.

STATEMENT OF FACTS

A. Background

In 2003, Mr. Wells moved his family to Monticello, Utah, and in 2010, he

started a Facebook page entitled “A Voice For the People” to report on various

matters in San Juan County, Utah. (Aplt. App. at 50.) Eventually, demand for local

news outgrew the Facebook page, and Mr. Wells started the website called “The

PetroGlyph,” as an online news source dedicated to reporting on matters important

to San Juan County, including commission meetings, public land issues, local high

school sports, and even local holiday celebrations. (Aplt. App. at 50-51, 745, 795-

96.) Mr. Wells was the staff reporter for the PetroGlyph. (Aplt. App. at 690.)

In September 2007, the BLM closed a portion of Recapture Canyon to ATV

and recreational motorized vehicles that local citizens had been using for years.

(Aplt. App. at 626.) In that same time period, San Juan County asked the BLM to

reverse its decision and give the county a right-of-way. (Aplt. App. at 626.)

Commissioner Lyman argued the BLM’s closure of the road was invalid because it

had not taken a final decision within the appropriate time pursuant to agency rules,

on what was designated in 2007 as a “temporary” road closure. (Aplt. App. at 113-


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15.) While Judge Shelby disagreed with Commissioner Lyman’s argument

regarding the invalidity of the BLM’s action, it was undisputed that the BLM had

not even ordered an environmental assessment on San Juan County’s application

until 2013, and that it had been pending for over seven years at the time of the

Recapture Canyon protest. (Aplt. App. at 109-10, 222-24.)

B. Alleged “Conspira cy” Of Pre-Ride Events

The government alleged that the conspiracy between Mr. Wells and his co-

defendants began in February 2014. (Aplt. App. at 38.) That was when

Commissioner Lyman organized a town hall meeting to discuss the request San

Juan County had made to the BLM for a right-of-way through Recapture Canyon.

(Aplt. App. at 51.) Commissioner Lyman also discussed a protest rally as a way to

bring attention to the BLM’s inaction. (Aplt. App. at 51.)

Following the February 2014 town hall meeting, Mr. Wells began following

the Recapture Canyon story for The Petroglyph. (Aplt. App. at 51.) In April 2014,

Mr. Wells obtained an exclusive interview with Commissioner Lyman regarding

Recapture Canyon issues, and published the interview in three parts on The

Petroglyph website and youtube.com. (Aplt. App. at 51.) Mr. Wells also

republished some of Commissioner Lyman’s official Facebook postings on The

Petroglyph and another editorial Commissioner Lyman wrote on the issue of


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Recapture Canyon. (Aplt. App. at 784, 790-91.) There was no evidence that Mr.

Wells attended the February 2014 town hall meeting.

On March 2, 2014, Commissioner Lyman sent an email to the State Director

for the BLM, Juan Palma, regarding the protest rally, and they arranged to meet for

lunch in Salt Lake City. (Aplt. App. at 632-33, 652-53.) Director Palma testified

that Mr. Wells had joined his lunch with Commissioner Lyman as a “tag along,”

and the conversation was “predominantly” between him and Commissioner

Lyman. (Aplt. App. at 652-53.) Prior to that lunch, Mr. Palma had never met or

spoken with Mr. Wells. (Aplt. App. at 653.) On April 11, 2014, Commissioner

Lyman published an editorial in the Deseret News that discussed the Recapture

Canyon and the planned “excursion” on May 8, 2014 (later changed to May 10,

2014). (Aplt. App. at 670-71.) In that editorial, Commissioner Lyman made no

mention of riding off-road vehicles into the canyon. (See Attachment A.)

On April 28, 2014, Lance Porter, District Manager for the BLM, after much

coordination with the U.S. Attorney’s Office for the District of Utah, personally

handed Commissioner Lyman a letter threatening him with potential civil and

criminal penalties if he violated the closure order, to which he responded he did not

plan to break any federal laws at the planned protest rally and that he never

intended to organize an ATV ride. (Aplt. App. at 680-85.) (See Gov’t Exhibit 24,

attached as Attachment B.)


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On April 28, 2014, at a San Juan County Commission meeting,

Commissioner Lyman told his constituents they were welcome to join the rally, to

walk, or ride a horse, or bring an ATV, but if they brought ATVs, he had rules

where they could go and where they could not. (Aplt. App. at 787-88.) In fact,

Recapture Canyon includes many trails that are open to motorized vehicles. (Aplt.

App. at 788.)

On April 29, 2014, Mr. Wells posted a copy of Commissioner Lyman’s

Facebook posting on The Petroglyph website. (See Gov’t Exhibits 73 and 34C,

attached as Attachments C and D.) On May 6, 2014, Mr. Wells uploaded his

interview with Commissioner Lyman to YouTube.com, and posted a link on The

Petroglyph website. (Aplt. App. at 749-50.)

C. The “Conspira cy” With Permission To Ride

On May 1, 2014, Commissioner Lyman and Mr. Palma spoke on the

telephone concerning the Recapture Canyon controversy. (Aplt. App. at 654.)

Concerning the protest ride, Mr. Palma admitted under oath that he told

Commissioner Lyman: “Nobody is going to get arrested and nobody is going to do

all that kind of stuff. We’re not going to do that.” (Aplt. App. at 654.) He further

admitted telling Commissioner Lyman, “you know, that you can have your

celebration and that you can, you know, ride or walk down into the canyon. That

would be wonderful.” (Aplt. App. at 655-56.)


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Prior to the planned ride, Commissioner Lyman asked Mr. Ferd Johnson,

water master of San Juan County Water Conservancy District (“SJCWCD”), “if it

was all right if they rode down [their] right-of-way to the pipeline trail[,]” and Mr.

Johnson told him “yes.” (Aplt. App. at 858.) The pipeline trail was the right-of-

way the SJCWD used to access and maintain its pipeline (the “Pipeline Road”),

which was buried under that portion of the Recapture Canyon road at issue in this

case. (Aplt. App. at 858-61.) Commissioner Lyman asked again if they could use

the right-of-way for the protest ride, and Mr. Johnson reiterated his consent. (Aplt.

App. at 858-59.) On Monday May 5, 2014, Mr. Ferd Johnson went down into

Recapture Canyon and made sure the gate was unlocked to the Pipeline Road so

that Commissioner Lyman and the other riders could access it. (Aplt. App. at 859.)

On May 9, 2014, Jason Moore, a BLM ranger, hiked into Recapture Canyon

and set up four motion-activated cameras at various locations along the closed

portion of Recapture Canyon. (Aplt. App. at 538.) On May 10, Mr. Moore hiked

back into Recapture Canyon along the Pipeline Road and waited with a camera to

take pictures of defendants’ ride along the road. (Aplt. App. at 540.) The gate was

still unlocked, and Mr. Moore did not lock it to close access to the allegedly closed

road. (Aplt. App. at 997.)

On May 9 and 10, 2014, Mr. Wells attended a tailgate social and pre-ride

rally at Centennial Park in Blanding, Utah, to “live- blog[]” the events for The


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Petroglyph. (Aplt. App. at 792-93.) He interviewed participants at the rally, and

uploaded pictures to his Petroglyph Facebook page. (Aplt. App. at 792-93.) Mr.

Wells was not a listed speaker at the rally and did not address the gathering. (Aplt.

App. at 52.) After the rally on May 10, Mr. Wells rode his ATV through the open

gate, down the Pipeline Road, turned around at the end of the road where Mr.

Johnson had testified they had permission, and rode back out the canyon. (Aplt.

App. at 858-61.)

The government alleged that Mr. Wells and the other co-defendants

conspired to ride off-road vehicles into the closed area of Recapture Canyon. (Aplt.

App. at 9.) On December 5, 2014, the government filed a Superseding

Misdemeanor Information against Mr. Wells. (Aplt. App. at 38-42.)

D. Other Pre-Trial Motions

1. Mr. Wells’ Motion to Dismiss

On March 2, 2015, Mr. Wells filed a Motion to Dismiss Count I of

Misdemeanor Information. (Aplt. App. at 49-107.) Mr. Wells argued the

government violated his First Amendment rights of freedom of speech and

freedom of the press by charging him with conspiracy for merely reporting events

leading up to the ride in Recapture Canyon. (Aplt. App. at 49-107.) Further, such

prosecution had a chilling effect on Mr. Wells’ rights of free speech and freedom


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of the press, and was furthered in retribution for his posts portraying the BLM in a

negative light. (Aplt. App. at 49-51.)

At the hearing on his Motion to Dismiss, Mr. Wells argued that the

government violated his rights because the only way they linked him to the alleged

conspiracy was through his reporting of Recapture Canyon-related events and his

interview of Commissioner Lyman: “the information is silent as to anything else

that ties him to having anything to do with preplanning part of the conspiracy

before May 10.” (Aplt. App. at 190-91.) The question was “whether or not simply

reporting the news makes one a co-conspirator with those you’re reporting about.”

(Aplt. App. at 195.) The court responded, “you can raise a First Amendment

defense at trial.” (Aplt. App. at 195.)

2. The Legality Of The Road Closure

In a pre-trial Motion in Limine, the government argued the legality of the

road closure was immaterial to the defendants’ good faith defense. (Aplt. App. at

246-54.) Based on the district court’s prior ruling rejecting Commissioner Lyman’s

argument that the BLM’s closure was invalid, Mr. Wells did not object to the

government’s motion. (Aplt. App. at 245, 277-78.) Regarding the road closure, the

district court stated that the closure was “purely a legal issue and it’s been decided

by the Court. You raised it, we discussed it in the final pretrial conference, and I

made a ruling. It is a legal closure. This road is closed by the BLM legally and


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lawfully for purposes of this trial.” (Aplt. App. at 276-77.) When counsel for one

of the other co-defendant’s inquired about the issue at trial, the district court

sustained the government’s objection and struck the question from the record:

Q: You also made the remark that some people thought that this was alegal ride?A: Sure. And there were arguments to that point in the paper and soforth leading up to the ride.Q: So there is controversy over whether this was legal or notthroughout – MR. BENNETT: Objection.Q: -- San Juan County?

THE COURT: Sustained. That question is stricken. You’re not toconsider that question, members of the jury.

(Aplt. App. at 596-97.) Regarding the trail closure, the district court instructed the

jury: “I have already ruled that the BLM’s closure of sections of Recapture Canyon

to off-road vehicles that was enacted on September 13, 2007 pursuant to 43 C.F.R.

§ 8341.2 was lawful and was in effect on May 10, 2014.” (Aplt. App. at 933.)

3. Motion in Limine Barring R.S. 2477 Right-of-Way Defense

In the same motion, less than a month before trial, the government sought to

exclude argument by defendants that the Pipeline Road was a Revised Statute

24771 right-of-way (“R.S. 2477”). (Aplt. App. at 246-54.) In particular, the

1 Congress passed Revised Statute 2477 in 1866, which granted “the right of wayfor construction of highways of public lands, not reserved for public uses ….” Actof July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (codified in 1873 as R.S. § 2477,and subsequently recodified in 1938 as 43 U.S.C. § 932). Congress repealed R.S.2477 in 1976 with the Federal Land Policy and Management Act (“FLPMA”).Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (October 21, 1976).


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The government called Friends of Cedar Mesa Executive Director Josh

Ewing, an environmental group dedicated to protecting public lands in San Juan

County. (Aplt. App. at 565.) SUWA had recommended that the government call

Ewing as a witness instead of its representative, to testify regarding video of the

protest ride. (Aplt. App. at 573, 594, 1118.) Ewing also testified “there was no

attempt by anyone to conceal the protest.” (Aplt. App. at 594-95.)

3. Juan Palma

The government called BLM State Director Juan Palma to testify about

Commissioner Lyman’s communications with him regarding the Recapture

Canyon ride. (Aplt. App. at 615-16.) Palma had been in communication with

SUWA in monitoring Commissioner Lyman’s actions in advance of the protest

ride to make sure the BLM would take the appropriate legal action against anyone

violating the road closure order. (Aplt. App. at 1124-30.) Palma testified that Mr.

Wells was at a lunch he had in advance of the protest ride with Commissioner

Lyman, but admitted that Mr. Wells was only a “tag along,” and the conversation

was “predominantly” between Palma and Commissioner Lyman. (A plt. App. at

652-53.) Palma also admitted Commissioner Lyman wrote him prior to the ride to

say he did not “plan to break any federal laws on May 10th.” (Aplt. App. at 620-

21; see also Attachment C .)


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4. Lance Porter

The government called BLM District Manager Lance Porter to testify that he

hand-delivered Commissioner Lyman a letter describing the potential civil and

criminal penalties he would face if he entered the closure area on an ATV. (Aplt.

App. at 680-82.) Porter had been in repeated communications with SUWA in

monitoring Commissioner Lyman’s actions in advance of the protest ride to

respond to SUWA’s demands that the government take legal action against those

involved in the protest ride. (Aplt. App. at 1118-55.) Porter testified that Mr. Wells

was a reporter for The Petroglyph and would not have received a copy of the letter

he delivered to Commissioner Lyman. (Aplt. App. at 690.)

5. Brian Loftin

Finally, the government called BLM Special Agent Brian Loftin to testify

concerning his internet investigation into Commissioner Lyman’s Facebook page

and The Petroglyph articles and interviews that Mr. Wells had published. (Aplt.

App. at 712-15.) Loftin testified that some postings of Commissioner Lymans’

materials on The Petroglyph website were re-prints of articles that Commissioner

Lyman had published elsewhere. (Aplt. App. at 756, 785.) He identified

Commissioner Lyman in some of the photos that Mr. Wells published to The

Petrolgyph Facebook page regarding the tailgate social event. (Aplt. App. at 765-

66.) Loftin admitted The Petroglyph Facebook page Mr. Wells posted to had been


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set up as a news media profile, and that Mr. Wells posted photos of Commissioner

Lyman speaking at the May 10 rally for media purposes. (Aplt. App. at 768-70,

779.)

6. Good Faith Defense - Ferd Johnson

After the government rested, Mr. Wells called Ferd Johnson to establish his

good faith defense. Mr. Johnson lives in Blanding, Utah, and works for the

SJCWCD as water master. (Aplt. App. at 842.) Among other things, Mr. Johnson

testified that the SJCWCD has a right-of-way along the Pipeline Road in Recapture

Canyon to access their pipeline, which leads to a reservoir. (Aplt. App. at 841.)

The right-of-way allows ATV access. (Aplt. App. at 845.) Mr. Johnson confirmed

that riders in the government’s video had been riding on the SJCWCD right-of-

way Pipeline Road, pursuant to his express grant of permission. (Aplt. App. at 855-

57.) Mr. Johnson testified that he not only gave permission to the protest riders to

use the SJCWCD’s right-of-way but that he also went down into Recapture

Canyon prior to May 10 to make sure the gate was unlocked to the Pipeline Road.

(Aplt. App. at 859.) In fact, Mr. Johnson testified the defendants had his

permission to use the Pipeline Road on May 10. (Aplt. App. at 860-61.)

The district court instructed the jury on Mr. Wells’ Good Faith Defense at

the close of trial in the Jury Instructions: “a Defendant’s actions are not ‘willful’ if


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the Defendant has a good faith belief that his conduct was lawful, even if that

belief was not reasonable.” (Aplt. App. at 936.)

7. Rule 29 Motion For Acquittal

At the close of trial, Mr. Wells joined his co-defendants’ motion under Fed.

R. Crim. P. 29 for judgment of acquittal. (Aplt. App. at 885.) The district court

denied the motions. (Aplt. App. at 894-95.) On May 1, 2015, after a two-day trial,

the jury found Mr. Wells and Commissioner Lyman guilty on both counts. (Aplt.

App. at 943-44.)

F. Unfair Trial and Post-trial Proceedings

Aside from the substantive testimony described above, Mr. Wells also

appeals his conviction based on the following proceedings from before, during, and

after trial.

1. Motion To Disqualify Judge Shelby

Unbeknownst to defendants, the government was working closely in its

prosecution of defendants with SUWA, whose legal director, Steve Bloch, was a

close friend of Judge Shelby. (Aplt. App. at 1096-98.) In fact, Judge Shelby

eventually recused himself based on the fact that SUWA and other environmental

groups sent him a letter to influence sentencing, which would lead a reasonable

person to question the court’s impartiality in this case. (Aplt. App. at 1231-36.) But

the full record of SUWA’s involvement showed that Bloch attended almost every


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day of Mr. Wells’ trial, and Judge Shelby did not raise any issue despite the fact

that the defendants specifically asked him to inquire of any affiliation that potential

jurors had with SUWA or related groups. (Aplt. App. at 1097, 1235-36.)

Commissioner Lyman submitted a Motion to Disqualify, which Mr. Wells joined,

based on the facts that: (1) SUWA had strongly and repeatedly urged prosecution

of the defendants, (2) SUWA had been the subject of voir dire questioning, (3)

SUWA had joined other conservation groups in writing the court to advocate for

certain punishment, and (4) Bloch specifically had frequently attended the trial.

(Aplt. App. at 1096-107.)

First, as detailed in the government’s response memo to the Motion to

Disqualify, SUWA

contacted personnel at BLM to: (1) share with BLM news articlesabout the illegal ride; (2) share with BLM some of CommissionerLyman’s Facebook posts; (3) share with BLM opinions from othergroups about the upcoming illegal ride; (4) urge BLM to enforce itsclosure order by recording the event, issue citations, and prepare a

post-ride damage assessment; and (5) on occasion, to meet with BLMto discuss Recapture Canyon.

(Aplt. App. at 1113-14.) SUWA’s involvement specifically targeted Mr. Wells’

protected first amendment activities, including the articles and interviews he was

publishing. (Aplt. App. at 1118-155.) Emails were sent by SUWA’s counsel to

government witnesses Lance Porter and Juan Palma regarding ride details,

demanding that the BLM take legal action against the defendants. (Aplt. App. at


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1109-155.) For instance, SUWA legal counsel Liz Thomas emailed Juan Palma:

“we expect BLM to continue to enforce its Closure Order and existing Travel Plan,

and to take appropriate legal action (at a minimum, recording the event in order to

issue citations and to complete a damage assessment) if the ride in Recapture

Canyon comes to fruition.” (Aplt. App. at 1125-55.) In official SUWA

publications, the group demanded that the United States Department of Justice

“must land on Commissioner Lyman and his armed gang like a ton of bricks. If

they do not, more than just our special public places are at risk: so are our public

employees.” (A plt. App. at 1118-75.)

Second, Judge Shelby asked potential jurors about their involvement with

SUWA during voir dire: “A few questions about the specific subjects that might be

raised in this case. First, are you, your spouse or your partner or a family member

or close personal friend a member of any of these organizations to your

knowledge: The Southern Utah Wilderness Alliance, ….” (Aplt. App. at 363.)

Third, Mr. Bloch’s involvement culminated with a letter asking the court to impose

a punishment reflecting the egregiousness of the alleged crimes. (Aplt. App. at

1096-107.) As Judge Shelby explained in his order of recusal, he and Bloch have

been close personal friends for a significant time. The defendants learned of this

relationship through the Court’s disclosure in another matter, In re Jointly


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Managed R.S. 2477 Road Cases Litigation, Case Nos. 2:10-cv-1073 and 2:11-cv-

1045. In that case, the Court advised the parties:

JUDGE SHELBY: I just wanted to start with a disclosure, SteveBloch, on behalf of SUWA, Steve Bloch and his wife Kara are friendsof mine and have been for a long, long time. I practiced with Kara atSnow Christensen starting in 1999. My wife and I have socializedwith the two of them since that time, we continue to socialize. My sonis close friends with Steve’s son, they play on the same soccer team,in the same school class. We have dinner, are couples together. Andwith other friends not infrequently.

I don’t hear any cases in which Steve appears, he had not entered an

appearance and still has not, I don’t think, in Kane County. I wasunaware until this weekend that Steve had entered appearances in anyof the roads cases.

I thought about it over the weekend, and my view is that I needed tomake disclosure about that, but I don’t recuse from any mattersinvolving SUWA. I don’t think I know anyone else that works atSUWA. If I do, I don’t know who they are. And so long as Mr.Bloch’s not involved in our case, I intend to remain in the case, but Iwanted to make that disclosure.

(Aplt. App. at 1035-36.)

Despite the fact that the motion was under advisement with another judge in

the court, Judge Shelby “independently conclude[d] without awaiting a decision

from Judge Waddoups” that “recusal will promote confidence in these proceedings

and avoid even the appearance of impropriety in connection with the court’s

sentencing duties.” (Aplt. App. at 1231-36.) Accordingly, Judge Shelby granted the

motion and recused himself from further sentencing proceedings. ( Id.)


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3. Insufficiency Of The Charges

Finally, at trial Mr. Wells argued that the government’s evidence was

insufficient and impermissibly varied from the charges in the superseding

information. Mr. Wells objected to a deficient jury instruction regarding

conspiracy. (Aplt. App. at 895-901.) The misdemeanor information used the

language “on or about February 27, 2014 and continuing until on or about May 10,

2014.” (Aplt. App. at 38-40.) Yet the court’s Jury Instruction number 23 used

different language: “At some time between February 27, 2014 and about May 10,

2014.” (Aplt. App. at 926.)

4. Restitution Proceedings

At the Restitution Hearing, the Government claimed damages under the

Mandatory Victim Restitution Act for “emergency stabilization for the riparian

areas and upland soils totaling $30,447.69 and the archaeological damage

assessment work, just the evaluation total $65,570” for a total of $95,955.61. (Aplt.

App. at 1336.) At the hearing, Mr. Wells argued that the evidence for restitution

was insufficient and the objective of the conspiracy ended at the end of the

Pipeline Road, so any damage that occurred in the southern portion of Recapture

Canyon went beyond the scope of the conspiracy. (Aplt. App. at 1382, 1386-99.)

He also argued that he cannot be responsible for restitution of damage caused by

acquitted defendants’ presence in the southern portion of the canyon. (Aplt. App. at


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1399-1400.) Mr. Wells noted how the government’s analysis was missing 17 days

of what happened in Recapture Canyon in the time period surrounding the

approximately one hour protest ride. (Aplt. App. at 1400-02.) And finally, Mr.

Wells pointed out how the government’s “restitution” included over $84,000 in

money spent assessing the issues, and only $11,800 in money spent to actually

repair anything – “government inefficiency at its finest.” (Aplt. App. at 1405.) The

court rejected Mr. Wells’ arguments and awarded the government’s alleged loss of

$95,955.61 recoverable under the MVRA. (Aplt. App. at 1423.) The court deferred

until sentencing whether that amount would be apportioned or whether Mr. Wells

and Commissioner Lyman would be jointly and severally liable for the full

amount. (Aplt. App. at 1424.) At sentencing, the court ordered that Mr. Wells pay

$48,000 in restitution, for which he is jointly and severally liable with

Commissioner Lyman. (Aplt. App. at 1388-94.)

SUMMARY OF THE ARGUMENT

Based on facts coming to light after trial, it was error for Judge Shelby to not

have disqualified himself under 28 U.S.C. § 455(a) before trial, and this Court

should vacate Mr. Wells’ conviction and remand for a new trial. United States v.

Cooley, 1 F.3d 985, 997 (10th Cir. 1993). In his order of recusal, dated August

2015, Judge Shelby attempted to explain that it was not until after conviction,

when SUWA and other environmental groups sent him a letter to influence


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sentencing, that he became aware of facts that would lead a reasonable person to

question his impartiality. (Aplt. App. at 1231-36.) But the full record of SUWA’s

involvement, as Judge Shelby alluded to, showed how involved SUWA and its

legal team had been in this case well before trial. Among other things, SUWA

coordinated with the government in bringing the case – helping the government

identify potential witnesses and collect evidence – and SUWA had specifically

demanded that the Department of Justice “land on Commissioner Lyman and his

armed gang like a ton of bricks.” (Aplt. App. at 1118-75.) Judge Shelby’s friend,

SUWA Legal Director Steve Bloch, attended almost every day of Mr. Wells’ trial,

and yet, notwithstanding the fact that the defendants had specifically asked Judge

Shelby to inquire of any affiliation that potential jurors had with SUWA or related

groups, Judge Shelby did not make the disclosure that would have caused a

reasonable person to question his impartiality. (Aplt. App. at 1097, 1235-36.) For

this, the remedy is a new trial.

The district court also erred in misconstruing Mr. Wells’ argument grounded

in the First Amendment as if he was arguing that his postings to The Petroglyph or

Facebook were somehow immune from prosecution. (Aplt. App. at 228.) Mr.

Wells was making a sufficiency argument, grounded in the First Amendment. To

be valid, a conspiracy conviction must “involve[] a violation of the law.” United

States v. Thompson, 518 F.3d 832, 853 (10th 2008). And courts have cautioned


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against conspiracy convictions obtained “ by piling inference upon inference.”

United States v. Fox, 902 F.2d 1508, 1513 (10th Cir. 1990) (quoting United States

v. Butler , 494 F.2d 1246, 1252 (10th Cir. 1974)). Where Mr. Wells’ conviction was

admittedly based on acts of journalism, protected by the First Amendment, and

where his advocacy was not “directed to inciting or producing imminent lawless

action and is likely to incite or produce such action,” Brandenberg v. Ohio, 395 US

444, 447 (1969), the evidence is insufficient to support his conviction for a

conspiracy to violate the laws of the United States.

It was error to deny Mr. Wells’ motion for new trial based on the new

evidence coming to light of the 1979 Map showing that the Recapture Canyon road

at issue was R.S. 2477, and thus a public highway at the time of the offense. First,

the government violated Defendants’ rights to receive evidence favorable to their

defense under Brady v. Maryland . Regardless of whether an individual defendant

has standing to bring a quiet title action, the 1979 Map contradicted an essential

element of the government’s case in chief, including the district court’s instruction

to the jury that the BLM’s closure of sections of Recapture Canyon to off -road

vehicles was lawful and in effect on May 10, 2014. (Aplt. App. at 933.)

Finally, the district court erred in calculating loss restitution as exceeding the

$11,000 that the government spent on actual repairs and assessing it to Mr. Wells

under Mandatory Victim Restitution Act, despite the government’s failure to prove


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that he directly caused the purported harm to Recapture Canyon that was repaired.

See United States v. Quarrell, 310 F.3d 664, 680 (10th Cir. 2002).

ARGUMENT

I. THE DISTRICT COURT SHOULD HAVE DISQUALIFIED ITSELF

SUA SPONTE FROM THE TRIAL

Mr. Wells’ appeal of his conviction raises two issues as it concerns the

district court’s failure to recuse itself prior to trial: (1) whether the district court

should have disqualified itself earlier in the case based on its relationship with Mr.

Bloch; and (2) whether the district court’s failure to do so is grounds to vacate his

conviction. This Court reviews the district court’s failure to recuse under an abuse

of discretion or plain error standard. United States v. Greenspan, 26 F.3d. 1001,

1004 (1994); see also United States v. Pearson, 203 F.3d 1243, 1276-77 (10th Cir.

2000) (considering recusal issue outside context of denial of motion for recusal).

A. The Standard For Disqualification Under 28 U.S.C. § 455(a).

Title 28 U.S.C. § 455(a) provides that “[a]ny justice, judge or magistrate of

the United States shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” The Supreme Court has noted how

“[t]he general language of subsection (a) was designed to promote public

confidence in the integrity of the judicial process by replacing the subjective [‘in

the opinion of the judge’] standard with an objective test.” Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7 (1988). “Under it a judge has a


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continuing duty to recuse before, during, or, in some circumstances, after a

proceeding, if the judge concludes that sufficient factual grounds exist to cause an

objective observer reasonably to question the judge's impartiality.” United States v.

Cooley, 1 F.3d 985, 992-93 (10th Cir. 1993) (citing Liljeberg, 486 U.S. at 861). In

applying § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility,

or lack of partiality are not the issue. Id . at 993 (citations omitted). “The test in this

circuit is “‘whether a reasonable person, knowing all the relevant facts, would

harbor doubts a bout the judge’s impartiality.’” Id . (quoting United States v.

Burger , 964 F.2d 1065, 1070 (10th Cir. 1992)).

The standard is purely objective. The inquiry is limited to outwardmanifestations and reasonable inferences drawn therefrom. Inapplying the test, the initial inquiry is whether a reasonable factual

basis exists for calling the judge's impartiality into question.

Id . (citations omitted). The purpose of recusal is “to promote confidence in the

judiciary by avoiding even the appearance of impropriety whenever possible.”

Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1310 (10th Cir. 2015)

(citations omitted). Section 455(a) begins with the inquiry “whether a reasonable

factual basis exists for questioning the judge’s impartiality.” Nichols v. Alley, 71

F.3d 347, 351 (10th Cir. 1995) (citations omitted).

Because the standard is objective, it should not be controversial to conclude

that – based purely on the district court’s later recusal and Mr. Bloch’s

involvement in urging the prosecution of Mr. Wells in the first instance – that the


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district judge should have recused himself prior to trial. In Cooley, 1 F.3d at 998,

this Court noted how Congress had delegated “[t]he task of fashioning a remedy

for a violation of § 455(a) … to the judiciary.”

As the Supreme Court stated in Liljeberg, “[w]e must continuously bear in mind that ‘to perform its high function in the best way’ ‘ justicemust satisfy the appearance of justice.’” Liljeberg, 486 U.S. at 864(quoting In re Murchison, 349 U.S. 133, 136 (1955) (citationomitted)). To best serve that goal, we are satisfied that the remedy inthis case is to vacate the conviction and sentence of each of thedefendants in these cases, and remand the cases to the district courtfor a new trial before a different judge. See O'Rourke v. City of

Norman, 875 F.2d 1465, 1475 (10th Cir. 1989).

Cooley, 1 F.3d at 998. The Court should vacate Mr. Wells’ conviction and

sentence, and remand the case to the district court for a new trial.

B. Evidence of Impartiality During Voir Dire

Though not required, this conclusion is supported by evidence of the district

court’s actual bias against Mr. Wells and his co-defendants. Judge Shelby seemed

to disagree how questions in voir dire regarding SUWA would have raised a duty

to disclose his relationship with SUWA’s legal counsel, because “it was the

Defendants who asked the court to inquire of potential jurors about their affiliation

with conservation groups, including SUWA.” (Aplt. App. at 1235.) And indeed,

the parties submitted the following question in their Joint Submission of Proposed

Voir Dire Questions: “Are you, your spouse, a family member or close friend a

member of the Southern Utah Wilderness Alliance, the Sierra Club Utah Open


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Lands, Utah Wilderness Coalition, Friends of Cedar Mesa, or any other

organization whose stated purposes is the protection of Utah’s wilderness lands?”

(Aplt. App. at 257-63.)

But if Judge Shelby asked that question of potential jurors, should not he

also have asked it of himself? The government cannot dispute that, as of voir dire,

Judge Shelby was on notice regarding SUWA’s involvement. And no one disputed

Mr. Lyman’s allegation that Mr. Bloch sat through the trial each day. Those two

facts alone are sufficient to cause “a reasonable person … [to] harbor doubts about

the judge’s impartiality.” Cooley, 1 F.3d at 993 (citing Liljeberg, 486 U.S. at 861).

Going beyond appearances, the record in this case shows how the district

court demonstrated actual bias on issues related to SUWA in voir dire. During voir

dire, for example, one juror was asked, “if the Court instructs you that a road is

closed, would you be able to return a verdict of guilty or not guilty if you thought

that the Defendants violated the law as instructed by the Court?” (Aplt. App. at

383.) That juror responded, “You know, I would probably respect his authority.”

(Aplt. App. at 383.) Notwithstanding that answer, the juror was asked again, “do

you think you can be a fair and impartial juror in this case?” (Aplt. App. at 384.)

To which he answered, “With the evidence, yeah, I think.” (Aplt. App. at 384.)

Nevertheless, despite the juror’s repeated assurance that he could be fair and


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impartial, the district court sustained the Government’s challenge for cause. (Aplt.

App. at 385.)

In contrast, another juror expressed a bias against off-highway vehicles, and

the Court overruled Mr. Wells’ cause challenge. That juror’s first comments

included: “I just have strong feelings about off -highway vehicles in general.”

(Aplt. App. at 404.) He continued: “Well, I hate it when I’m camping and I got the

four-wheelers going all over the place and they’re keeping us up late at night when

I go camping. Or when my dad takes his horse into the back country and four-

wheelers, motorcycles, run him off the trail because they have shared trails

sometimes.” (Aplt. App. at 404.) When asked by the district court if he could

overcome that bias, that juror responded, “I feel that I could do that fairly.” (Aplt.

App. at 404.) The district court overruled Mr. Well’s challenge of that juror for

cause. (Aplt. App. at 413.) In another instance, the district court rejected

Defendants’ challenge of a potential juror who acknowledged he was “assuming

the worst” about defendants. (Aplt. App. at 429.) That juror started his individual

voir dire with the following statement: “I think the trails are there for a reason, and

if you’re not obeying the rules of that trail, then you probably shouldn’t be on the

trail. … if you’re going to be riding four -wheelers off the trail and you’re too lazy

to get off your bike and walk around, then probably shouldn’t be out there.” (Aplt.

App. at 426.) He continued, “If they broke – if someone decides that they can


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break the rules and they’re aware of that, then I guess that’s the decision and the

choice that they’ll have to live with and the consequences.” (Aplt. App. at 426.) “I

think if the trail was closed, then the BLM had a pretty good reason to do that and

we shouldn’t be breaking those rules to get on that trail.” (Aplt. App. at 427.)

When the district court asked that juror if he could be fair, he responded, “No. I

think I would be fair, but I would like the facts, and I assume that’s what I will get,

so ….” (Aplt. App. at 428.) Eventually, that juror confirmed how he was disposed

to assume the defendants were guilty: “I think what I’m assuming right now is that

there was a closed trail and they knowingly went beyond that, and that’s just what

I’m assuming happened, and so I don’t – but I don’t anything.” (Aplt. App. at 430.)

When Mr. Wells’ counsel clarified, “That’s just – is that an assumption you’re

making based upon what little you know about the case?” the juror responded,

“Yes.” (Aplt. App. at 430.) And yet, the district court overruled Defendants’

motion to strike the juror for cause. (Aplt. App. at 433.)

C. Evidence of Impartiality During Trial

During cross-examination of Government witness Juan Palma, Mr. Lyman’s

counsel attempted to refresh Mr. Palma’s recollection of a conversation of a

recorded phone call between Mr. Lyman and Mr. Palma for impeachment

purposes. Mr. Palma had testified he didn’t remember whether he had told Mr.

Lyman “you can have your celebration and that you can, you know, ride or walk


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down into the canyon. That would be wonderful.” (Aplt. App. at 621.) That

question had direct bearing on whether Mr. Lyman, and therefore the rest of the

defendants including Mr. Wells, had a good faith belief that they had permission

from Mr. Palma to ride into the closed portion of the canyon. Mr. Palma could not

answer whether it was an accurate transcription. When counsel asked him whether

hearing the recording would help and he replied that it would, the district court

ruled there was not enough foundation to publish it to the jury, even for purposes

of impeachment. (Aplt. App. at 623.) Eventually, Mr. Lyman’s counsel gave up the

effort, which required Mr. Holliday’s counsel to pick up the effort as relevant to

the defendants’ good faith defense. (Aplt. App. at 640.) The district court

questioned the tape’s relevance, to which Mr. Holliday’s counsel argued its

relevance relating to whether there was consent to ride on the trail. The district

court responded: “There was no consent.” (Aplt. App. at 641.) If the district court

had already decided “there was no consent,” how could the defendants had

received a fair trial where a good faith defense was their only defense? Mr.

Holliday’s counsel continued to argue: “But if I have evidence that there was not a

conspiracy because in fact Mr. Palma indicated something that could have been

construed as consent, then there was not a conspiracy that my client could have

joined.” (Aplt. App. at 641.) She then reiterated her intention to play a short

recording of the tape to Mr. Palma as extrinsic evidence for impeachment purposes


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under Federal Rule of Evidence 613(b). (Aplt. App. at 643.) The district court

required counsel instead to use the transcript, which counsel for Mr. Lyman had

just finished doing during cross-examination, to which Mr. Palma had equivocated.

The district court then discussed allowing her to play the tape to Mr. Palma

outside the presence of the jury. He first asked counsel for Mr. Lyman what the

tape recording was, who explained that it was a recording of a conversation on

May 1 between his client and Mr. Palma that his client sent to him a few days

prior. Later, the district court ruled: “I’m not going to permit it. I’m going to

overrule your request. It’s not appropriate. There’s not been any foundation for it.

It wasn’t disclosed. It was known at least as early as Saturday. Its no inconsistent

with the witness’s testimony thus far.” (Aplt. App. at 646.) “And I think your client

lacks standing to assert the issue. If he was not a party to the conversation and was

unaware of it at the time, it can’t near on his knowledge or intent or state of mind.

…” (Aplt. App. at 646-47.) After all that, the district court requested that

defendants’ counsel play a short clip of the call, with Mr. Palma on the stand,

outside the presence of the jury. And in front of Mr. Palma, the district court

directed: “All right, Let’s hear how the witness answers your questions and we’ll

decide whether it’s – whether you can use it for impeachment. I still don’t believe

he said anything that’s inconsistent under 613(b) but let’s see.” (Aplt. App. at 648.)

At which point Mr. Palma admitted to making the statements, meaning that he


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could not be impeached by the recording. (Aplt. App. at 654-56.) Further, during a

particularly effective portion of Mr. Wells’ cross-examination of Mr. Palma, the

district court interrupted the exchange to call for a break. (Aplt. App. at 635-38.)

Standing alone, there may be an innocuous explanation for Judge Shelby’s trial

rulings, but in light of the fact that his good friend SUWA counsel Bloch was in

trial on a daily basis, having worked closely with prosecutors to ensure that Palma

and others at the BLM would come down on Mr. Wells’ “like a ton of bricks,” this

Court should grant Mr. Wells a new trial. (Aplt. App. at 1118-75.)

The district court overruled an objection to an exhibit of an image of a

closed road not in Recapture Canyon that the government want admitted as

evidence of collusion between two of the defendants. When counsel for Mr.

Holliday asked for a limiting instruction that the road in the photo was not the

BLM road at issue in the case, the district court responded, “the government

stipulates to that fact.” (Aplt. App. at 773.) Yet the government had not yet

stipulated to that fact – the district court acted as if it itself was speaking as the

government.

Almost immediately after the first defense witness, Mr. Ferd Johnson,

testified that the defendants indeed did have permission to access the Pipeline

Road and ride it on May 10 (Aplt. App. at 859-60), the district court informed the

jury of the parties’ stipulation regarding the right-of-way:


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THE COURT: Members of the jury, we spoke a little bit earlier todayabout stipulations that the parties sometimes reach. These are factsthat have been decided and they’re provided to you for yourconsideration in your deliberations.

In 2014 the San Juan County Water Conservancy District held alimited right-of-way in a portion of Recapture Canyon. This right-of-way flowed from a grant from the BLM in 1986 for the purpose ofoperating and maintaining a pipeline. That is a stipulated fact for youconsideration.

(Aplt. App. at 861.) This instruction limited the purpose of the District’s right-of-

way, and therefore cast doubt on Mr. Johnson’s testimony. This signaled to the

jury that Mr. Johnson’s testimony could not be trusted, as the district court itself

was seemingly commenting on the credibility of the witness while he was still on

the stand. Again, the timing of the district court’s instruction served the

Government unnecessarily.

In fact, instead of receiving argument and posing a few hypothetical

questions to test defense counsel’s theories, the district court consistently argued

with defense counsel as if it itself was opposing counsel. When the district court

has to state otherwise, (“Well, I’m not trying to make an argument. I’m testing

yours.”), its bias is apparent. (Aplt. App. at 883.) The government found the

district court’s bias convenient and took full advantage: “As the court pointed out

….” (Aplt. App. at 885.)

All of these instances together amounted to an unfair trial for Mr. Wells and

an abuse of discretion by the district court. The district court should have


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disqualified itself as soon as it realized SUWA was so intimately involved – as

soon as it read the proposed jury instruction, and as soon as it saw his good friend

Mr. Bloch sitting in the audience on the first day of trial. Such should have alerted

him to SUWA’s involvement. And even if it did not, a reasonable person who

knew all the facts, would questions the judge’s impartiality. The district court

should have disqualified itself sua sponte from the trial proceedings, and Mr. Wells

should receive a new trial in front of a different judge.

II.

THE GOVERNMENT FAILED TO PROVE CONSPIRACY BEYONDA REASONABLE DOUBT.

Courts have cautioned against conspiracy trials involving political issues,

noting that care must be taken so that a conviction is not obtained “ by piling

inference upon inference.” United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.

1990) (quoting United States v. Butler , 494 F.2d 1246, 1252 (10th Cir. 1974)).

Scholars have noted how prosecutors have furthered political agendas using

conspiracy law since the Star Chamber and Poulterers’ Case, decided in 1611.

Kenneth A. David, The Movement Toward Statute-Based Conspiracy Law in the

United Kingdom and the United States, 25 Vand. J. Transnat’l L. 951, 954– 55

(1993). Even more troublesome is how modern conspiracy law gives the

government such great discretion to charge and prove conspiracy “that unpopular

ideas, and the speech that expresses them, have become ready subjects of


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prosecution.” Steven R. Morrison, System of Modern Criminal Conspiracy, 63

Catholic Univ. L. Rev. 371, 372 (2014).

The district court rejected Mr. Wells’ First Amendment argument on

grounds that “speech is not protected by the First Amendment when it is the very

vehicle of the crime itself.” (Aplt. App. at 228 (quoting United States v. Milton,

2001 WL 310410, at *4 (10th Cir. 2001)). But the district court misconstrued Mr.

Wells’ argument. Mr. Wells was not arguing that his posting to The Petroglyph or

Facebook were somehow immune from prosecution. He was arguing that the

government’s proof of his acts of citizen journalism were not sufficient proof that

Mr. Wells was guilty beyond a reasonable doubt of participating in criminal

conspiracy.

In United States v. Thompson, 518 F.3d 832 (10th 2008), the Tenth Circuit

held that the alleged conspiracy must “involve[] a violation of the law.” Id . at 853.

Mr. Wells’ actions here do not amount to a violation of the criminal law. They are

acts of journalism, protected by the First Amendment to the United States

Constitution. In Brandenberg v. Ohio, 395 US 444, 447 (1969), the Supreme Court

set “the principle that the constitutional guarantees of free speech and free press do

not permit a State to forbid or proscribe advocacy ... of law violation except where

such advocacy is directed to inciting or producing imminent lawless action and is

likely to incite or produce such action.”


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Federal courts have applied the Brandenberg principle to a number of cases

where conspiracy is charged. For example, in United States v. Dahlstrom, 713 F.2d

1423 (9th Cir. 1983), the Ninth Circuit reversed the criminal convictions of

defendants who had counseled taxpayers on tax shelters, concluding:

Even if the defendants knew that a taxpayer who actually performedthe actions they advocated would be acting illegally, the firstamendment would require a further inquiry before a criminal penaltycould be enforced. With the exception of Durst, no defendant actuallyassisted in the preparation of any individual tax return. Rather theymerely instructed an audience on how to set up a particular tax shelter.

Id . at 1428. Even in cases distinguishing Dahlstrom, courts recognize that they

must first “determine whether defendants merely encouraged their customers to

evade taxes, or if their speech was integral to the crime.” See United States v.

Meredith, 685 F. 3d 814 (9th Cir. 2012).

In Milton, the Tenth Circuit rejected defendant’s request for a jury

instruction that the fraudulent letters they sent to the IRS were protected First

Amendment speech. But in this case, the government admitted that Mr. Wells’

postings to The Petroglyph or Facebook were not criminal, as he was responsible

for informing the citizens of San Juan County about the protest ride. (Aplt. App. at

594.) The government presented evidence that Mr. Wells was merely acting as a

news journalist. (Aplt. App. at 690.)

The conspiracy charge violated Mr. Wells’ constitutional rights of free

speech and freedom of the press because it failed to allege any activities by Mr.


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Wells separate from his protected activities related to reporting the news. Mr.

Wells submitted a motion to dismiss before trial, which the court denied. (Aplt.

App. at 49-58, 245.) This Court reviews the denial of a pretrial motion to dismiss

de novo, and any underlying factual determinations for clear error. See United

States v. Barrett, 496 F.3d 1079, 1117 (10th Cir. 2007); United States v. Cordoba,

71 F.3d 1543, 1545 (10th Cir.1995).

In United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) the Tenth

Circuit entertained an interlocutory appeal of a motion to dismiss a criminal

indictment and explained that “[t]he First Amendment bars a criminal prosecution

where the proceeding is motivated by the improper purpose of interfering with the

defendant's constitutionally protected speech.” Id . at 849. In P.H.E., defendants

had unsuccessfully moved to dismiss an indictment that charged violations of

federal obscenity law wherein prosecutors had coordinated a series of multidistrict

prosecutions in an effort to harass, intimidate, and cease distribution of protected

material. Id . at 850-852. After finding that it had jurisdiction, and that defendants

had already shown prosecutorial “vindictiveness,” the Court remanded the case

back to district court with instruction for the government to justify its prosecution

decision with “legitimate,” “objective,” reasons. Id . at 860.

An analogous situation to a journalist reporting the news is an attorney’s

good faith legal advice to his client and possible conspiratorial charges arising

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012774212&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1117&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1117https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012774212&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1117&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1117https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012774212&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1117&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1117https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995243967&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1545&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1545https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012774212&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1117&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1117https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012774212&pubNum=506&originatingDoc=Ib51b07a6d5d611e0a06efc94fb34cdeb&refType=RP&fi=co_pp_sp_506_1117&originationContext=document&transitionType=DocumentItem&contextData=(sc.CustomDigest)#co_pp_sp_506_1117


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from such advice. The United States Supreme Court has held that the First and

Fourteenth Amendments may bar criminal prosecutions based in a conspiracy

charge arising from an attorney’s good faith legal advice to his client. See In re

Primus, 436 U.S. 412, 432 (1978) (“The First and Fourteenth Amendments require

a measure of protection for ‘advocating lawful means of vindicating legal rights,’

including ‘[advising] another that his legal rights have been infringed and

[r eferring] him to a particular attorney or group of attorneys … for assistance.’”

(quoting National Ass’n for Advancement of Colored People v. Button, 371 U.S.

415, 434-37 (1963)). An attorney has a constitutional right to provide legal advice

to his clients within the bounds of the law. In re Primus, 436 U.S. at 432; see also

United Transp. Union v. State Bar of Michigan, 401 U.S. 576, 580 (1971);

Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 – 8 (1964); Button, 371

U.S. at 429; cf. Walters v. National Assn. of Radiation Survivors, 473 U.S. 305,

368 & n.16 (1985) (Stevens, J., dissenting) (noting that the “right of an individual

to consult an attorney of his choice in connection with a controversy with the

government … is firmly protected by the Due Process Clause of the Fifth

Amendment and by the First Amendment” (footnotes omitted)).

As in P.H.E. and Primus, the Government in this case targeted prosecution

directly at a fundamental right: freedom of the press. “[T]he gravamen of [Mr.

Wells’] ar gument is that the actual act of going to trial under a pretextual


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not enough to convict an attorney of conspiracy without proving that the

underlying activities in the alleged conspiracy are illegal, and the government must

affirmatively prove the attorney’s involvement in illegal activity, for example, that

he modified or destroyed records to conceal the illegal transactions). The

government failed to prove that Mr. Wells’ acts of journalism constitute a

conspiracy.

III. DEFENDANTS HAD STANDING TO ASSERT A RIGHT-OF-

WAY DEFENSE, AND THE DISTRICT COURT IMPROPERLY

PRECLUDED DEFENDANTS FROM PRESENTING EVIDENCEREGARDING THE LEGALITY OF THE ROAD CLOSURE

Mr. Wells had standing to assert a right-of-way defense, and the district

court should have granted the Motion for a New Trial based on newly discovered

evidence. When a Rule 33 motion for a new trial is based on an alleged Brady

violation, this Court reviews the district court’s ruling de novo. United States v.

Velarde, 485 F.3d 553, 558 (10th Cir. 2007). The same de novo standard is applied

to determine whether the undisclosed evidence is material. U.S. v. Hughes. 33 F.3d

1248, 1251 (10th Cir. 1994).

“A defendant who seeks a new trial under Rule 33 based on an alleged

Brady violation must show that ‘(1) the prosecution suppressed evidence, (2) the

evidence was favorable to the defendant, and (3) the evidence was material.’”

Velarde, 485 F.3d at 558 (quoting United States v. Quintanilla, 193 F.3d 1139,

1149 & n. 10 (10th Cir.1999)). Rule 33 mandates a new trial when the interest of

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justice requires, as in where the verdict is contrary to the weight of the evidence,

where errors were committed at trial that substantially affected a defendant’s

rights, or where new evidence has come to light under circumstances requiring a

new trial. Fed. R. Crim. P. 33(a). A motion for new trial is directed to the

“conscience of the court” and a court is “obligated … to order a new trial” where

“there is even the slightest chance that a miscarriage of justice may have

occurred.” Id. at 1207-08 (citing United States v. Gross, 375 F. Supp. 971 (D.N.J.),

aff'd, 511 F.2d 910 (3rd Cir. 1974)).

The district court focused its decision below on whether the 1979 Map was

material to Mr. Wells’ defense, and indeed found that because he lacked standing

to assert the right-of-way in his defense, the 1979 Map was inadmissible and

therefore not material. (Aplt. App. at 1318-1328.)

Mr. Wells should have been able to argue that an existing R.S. 2477 right-

of-way existed along the Pipeline Road to (1) negate the BLM’s closure order and

(2) as part of his good faith defense.2

An R.S. 2477 right-of-way exists with “no administrative formalities” and

“without formal action by public authorities.” Southern Utah Wilderness Alliance v.

2 The Government may argue that Mr. Wells has waived this argument because hedid not object to its Motion in Limine and in fact Mr. Wells affirmatively statedthat he did not intend to use the defense of a right-of-way. (Aplt. App. at 255.) Butthat was before the discovery of the 1979 Map showing the existence of the R.S.2477 right-of-way.


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Bureau of Land Management , 425 F.3d 735, 741 (10th Cir. 2005) (citations and

internal quotation marks omitted). Although the Federal Land Policy Management

Act (“FLPMA”) repealed R.S. 2477, it also expressly reserved existing valid

rights of way as still in effect. 43 U.S.C. § 1701 (1976). The BLM cannot prohibit

travel by any vehicle, including off-road vehicles, on a valid R.S. 2477 right of

way. The existence of an R.S. 2477 right of way therefore completely negates an

essential element of the offense charged against Mr. Wells – a road cannot be

“closed” so that “off -road vehicle use is prohibited” in that area. See C.F.R. §§

8340.0-5(h), 8341.1(c).

The district court denied the Motion to Dismiss by finding that the

defendants lacked standing on the basis of United States v. Jessop, 2010 WL

5395091 (10th Cir. 2010). In Jessop, the defendant was charged with riding an off-

road vehicle in an area closed to off-road vehicles. Jessop asserted a defense that

he was traveling on a state right-of-way road and that the federal government had

therefore exceeded its enforcement authority (the “R.S. 2477 defense”). Id . at *1.

The court upheld the magistrate finding that only governmental entities have

standing to assert such a defense. Id . at 1-2. The court in Jessop analogized the

R.S. 2477 defense to defenses used by tax protesters. Id . at 3. The court made the

distinction between mistaken legal conclusions and the defendant’s “good faith

belief that the area was subject to an R.S. 2477 right-of-way,” which the court


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found “may be relevant to whether he knowingly and willfully violated the

regulation.” Id . The district court ultimately made the same distinction in this case.

Jessop as current law violates a defendant’s right to due process. It conflates

a jurisdictional concept into an evidentiary context. Allowing a criminal defendant

to raise a defense that goes to an element of the charge would not affect a Quiet

Title action because ownership of the road in question would not be the ultimate

question at issue, but it could create reasonable doubt for the criminal defendant.

Mr. Wells should have been able to use the map to rebut the government’s

evidence and show that the road closure was indeed not legal and effective on the

day in question. Because this went to an element of the offense, it was error to

conclude there was no harm when the government failed to disclose the map.

As the court did in Jessop, the d

Documents

Monte Wells Appeal to 10th Circuit