FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH, D.C. No. 2:14-CR-00470-DN-1 and 2
Michelle Mumford, Mumford PC, Salt Lake City, Utah, for
Defendant-Appellant Monte Jerome Wells.
Lyman, Blanding, Utah, filed a brief pro se. [*]
C. Bennett, Assistant United States Attorney (John W. Huber,
United States Attorney, and Lake Dishman, Assistant United
States Attorney, with him on the brief), United States
Attorney's Office, District of Utah, for
Mark Ward, Murray, Utah, filed an Amici Brief for Beaver, Box
Elder, Carbon, Daggett, Duchesne, Garfield, Iron, Kane,
Millard, Piute, Rich, San Juan, Sevier, Tooele, Utah,
Washington, Wayne, and Weber Counties, Utah, in support of
Defendant-Appellant Phillip Kay Lyman.
HARTZ, MURPHY, and HOLMES, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
Canyon lies just east of Blanding in Southeastern Utah and
runs south of Recapture Dam and U.S. Highway 191 along a
creek. The Bureau of Land Management ("BLM") closed
an area of Recapture Canyon to all-terrain vehicles
("ATVs") in 2007, to prevent soil damage and the
spoliation of archeological resources near the trail.
Frustrated with what had been billed as a temporary
closure-and against a backdrop of simmering tensions between
federal land management agencies and some residents of
Southeastern Utah-in 2014, certain individuals planned an ATV
ride to protest the BLM's closure order.
ride took place in May 2014. Defendant-Appellant Phil Lyman,
a County Commissioner for San Juan County, was a major
promoter of the ride. He was charged along with
Defendant-Appellant Monte Wells in a misdemeanor criminal
information with operating ATVs on lands closed to such use
by the BLM and conspiring to do so. See 18 U.S.C.
§ 371; 43 U.S.C. §§ 1701, 1733; 43 C.F.R.
§ 8341.1(c). Mr. Wells owned a small business and ran a
website entitled The PetroGlyph that reported on
issues of local concern in San Juan County, especially issues
relating to public lands.
a trial, a jury found both men guilty of the charged
offenses. The district court sentenced them to terms of
probation and brief terms of imprisonment. They were also
ordered to pay restitution for the costs of assessing and
repairing the damage that the protest ride caused to the
appeal, Messrs. Lyman and Wells (collectively,
"Defendants-Appellants") bring a variety of
challenges to their convictions and the restitution order.
They ask for a new trial because the district judge (Judge
Shelby) presided over their trial while a reasonable observer
allegedly would have questioned his impartiality; he did
ultimately recuse before their sentencing. Furthermore, they
appeal the denial of their motions to dismiss; they make a
Brady claim stemming from the government's
failure to produce a map showing a possible public
right-of-way through Recapture Canyon, which allegedly would
have called into question whether the BLM's 2007 closure
order was lawful; they challenge the district court's
restitution order and the amount they were ordered to pay;
and, lastly, Mr. Lyman argues that he was denied
constitutionally adequate counsel. Because none of
Defendants-Appellants' arguments are grounds for reversal
of the district court's judgment, exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we
BACKGROUND & PROCEDURAL HISTORY
Juan County, located in the southeastern corner of Utah, is
home to significant swaths of public lands managed by the
BLM. Among these, just east of the town of Blanding, is
Recapture Canyon. In 2007, the BLM closed to ATVs part of
Recapture Canyon because of potential damage to the soil and
archaeological sites. See Notice of Closure of
Public Lands to Off-Highway Vehicle (OHV) Use, 72 Fed. Reg.
57067-01 (Oct. 5, 2007). This was intended to be a temporary
order, but as of 2014, the order was still in place. The
perceived delay in reopening the area strained already tense
relations between the BLM and some local citizens.
at the delay in reopening the portion of Recapture Canyon to
ATV traffic, County Commissioner Phil Lyman organized a
protest ride on ATVs into the closed portion of the Canyon.
He was assisted in this by Monte Wells, who ran a website
called The PetroGlyph that reported on local news of
interest, particularly issues related to public lands. Mr.
Wells interviewed Mr. Lyman on video and reposted Mr.
Lyman's Facebook posts inviting others to the protest
ride. Despite strong warnings from the BLM that criminal and
civil penalties would be enforced against anyone riding an
ATV in the closed section of the Canyon, the ride took place
on May 10, 2014. Undisputed photographic evidence taken from
within the closed area shows that Mr. Lyman and Mr. Wells
rode ATVs in the protest that day.
of geography that requires some explanation for a full
understanding of the case is that the northernmost part of
the closed area of Recapture Canyon has a road where the
local water district has a right-of-way to access and attend
to the maintenance needs of a pipeline running from the
reservoir to the north. The protest entered the closed area
of Recapture Canyon on this road. To the south is a
turn-around point where that road and the water
district's right-of-way ends, but a trail continues
further south, along which lies the majority of the
archaeological and cultural resources that the BLM sought to
protect. Mr. Lyman and Mr. Wells claim to have turned around
at this point. Ferd Johnson, a representative of the local
water district, testified that he had consented to a request
by Mr. Lyman to use the water district's right-of-way for
the protest. However, the parties stipulated that the scope
of the right-of-way was limited to the purposes of
"operating and maintaining a pipeline." Aplt.
Wells's App., Vol. IV, at 861.
an investigation, which included an assessment of the
damages, the government filed a superseding criminal
information charging Defendants-Appellants with riding ATVs
on lands closed to ATVs and with conspiracy to do the same.
At trial, Messrs. Lyman and Wells were found guilty on both
counts. Postverdict, motions were filed concerning
restitution, and the court ordered Mr. Lyman to pay
approximately $96, 000 in restitution of which Mr. Wells was
jointly and severally responsible for $48, 000. The two were
sentenced to probation, with a brief period of imprisonment
for each. They timely appealed.
appeal, Defendants-Appellants seek a new trial because the
district judge (Judge Shelby) presided over their trial while
a reasonable observer allegedly would have questioned his
impartiality; he did ultimately recuse before their
sentencing but Defendants-Appellants contend that he should
have recused earlier. Furthermore, they challenge the denial
of their motions to dismiss the criminal information, the
denial of a new trial based on an alleged Brady
violation,  and their restitution order. Mr. Lyman
separately argues that he was deprived of effective
assistance of counsel. We address each claim in turn.
Shelby, who presided over the trial, is close friends with
Steven Bloch, the legal director for the Southern Utah
Wilderness Alliance ("SUWA"), a nonprofit
conservation group that was opposed to the Recapture Canyon
protest ride. After the trial, upon learning of this
friendship and related matters, Defendants-Appellants filed
motions to disqualify Judge Shelby from further participation
in the proceeding-notably, participation in their sentencing.
Significantly, Defendants-Appellants did not move for a new
trial based on the concerns underlying their motion to
Shelby recused, "conclud[ing] that recusal will promote
confidence in these proceedings and avoid even the appearance
of impropriety in connection with the court's sentencing
duties." Aplt. Wells's App., Vol. VI, at 1236. More
specifically, Judge Shelby recused based largely on a letter
to the judge signed by SUWA and other conservation groups
that expressed views adverse to Defendants-Appellants
regarding sentencing, as well as evidence developed in
connection with Mr. Lyman's motion to disqualify. That
evidence showed that SUWA had extensive pretrial involvement
in the case, passing information to BLM officials and the
United States Attorney's office.
Wells now argues for a new trial. He contends that Judge
Shelby ought to have recused from participation in the trial
sua sponte because a reasonable observer would have
questioned his impartiality. In this regard, he argues that
Judge Shelby should have been alerted to SUWA's
involvement by Mr. Bloch's presence at trial as a
spectator and by a voir dire question asking potential jurors
whether they, their spouses, a family member, or close friend
were members of SUWA. Mr. Lyman appears to make a similar
argument for a new trial.
government contends that this recusal-based argument for a
new trial is waived because it was not presented in posttrial
motions for a new trial or acquittal. We need not opine on
the waiver issue because we conclude that, in any event,
Defendants-Appellants' recusal-based argument for a new
trial fails on the merits. See, e.g., United
States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir.
2014) ("Because Black's SORNA claim fails on the
merits, this court exercises its discretion to bypass the
relatively complex waiver issue and resolve Black's
appeal on the merits."); Gardner v. Galetka,
568 F.3d 862, 885 n.3 (10th Cir. 2009) ("The government
argues that this claim was not raised before the district
court and therefore is waived . . . . Because we conclude
that this claim fails on the merits, we need not resolve
whether it was waived."). We believe that it is
especially appropriate to reach the merits of this issue
because recusal-based arguments uniquely implicate the
integrity of the justice system. See United States v.
Barrett, 111 F.3d 947, 955 (D.C. Cir. 1997) (Tatel, J.,
concurring) ("Although I agree that timeliness is a
factor to be considered, the obligation section 455(a) places
on judges means that even an untimely recusal claim cannot
deprive a circuit court of its responsibility to review a
judge's failure to recuse. In my view, the integrity and
public reputation of the federal judiciary require clear and
firm answers on the merits to even delayed charges of
judicial impropriety."). As such, though it will not
always be the right discretionary choice, we believe it is
important under the circumstances of this case to bypass the
lack-of-preservation (i.e., waiver) issue and reach the
merits of Defendants-Appellants' recusal-based argument
for a new trial.
arguments of the kind presented here are reviewed for an
abuse of discretion. See, e.g., United States v.
Higgins, 282 F.3d 1261, 1278 (10th Cir. 2002) ("A
denial of a motion for a new trial in a criminal case is
reviewed for abuse of discretion."); cf. Hinman v.
Rogers, 831 F.2d 937, 938 (10th Cir. 1987) (per curiam)
("The decision to recuse is committed to the sound
discretion of the district judge. We review the denial of a
motion to recuse only for abuse of that discretion.").
"Under this standard, we will not reverse unless the
trial court has made 'an arbitrary, capricious,
whimsical, or manifestly unreasonable judgment.'"
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 992 (10th Cir. 1999) (quoting
F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.
1994)). We conclude that the district court (i.e., Judge
Shelby) did not abuse its discretion in failing to recuse
sua sponte from participation in the
Defendants-Appellants' trial; therefore, they are not
entitled to a new trial based on this failure.
28, § 455(a) of the United States Code states that a
judge "shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned."
28 U.S.C. § 455(a). This requirement is intended
"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) (quoting Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 865 (1988)).
Section 455 establishes "an objective standard:
disqualification is appropriate only where the reasonable
person, were he to know all the circumstances, would harbor
doubts about the judge's impartiality." Id.
(quoting In re McCarthey, 368 F.3d 1266, 1269 (10th
Cir. 2004)). In other words, a judge's subjective state
of mind is irrelevant; what matters is whether "the
public might reasonably believe that [the judge] knew"
of "facts creating an appearance of impropriety."
Liljeberg, 486 U.S. at 860. The Court in
Liljeberg approvingly quoted a similar statement
from the Court of Appeals decision under review:
"If it would appear to a reasonable person that a judge
has knowledge of facts that would give him an interest in the
litigation then an appearance of partiality is created[, ]
even though no actual partiality exists because the judge
does not recall the facts, because the judge actually has no
interest in the case or because the judge is pure in heart
and incorruptible. . . . Under section 455(a), therefore,
recusal is required even when a judge lacks actual knowledge
of the facts indicating his interest or bias in the case if a
reasonable person, knowing all the circumstances would expect
that the judge would have actual knowledge."
Id. at 860-61 (citation omitted). "In
conducting this review, we must ask how these facts would
appear to a well-informed, thoughtful and objective observer,
" who is "an average member of the public, "
not a "hypersensitive, cynical, and suspicious
person." Mathis, 787 F.3d at 1310 (quoting
Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir.
begin by asking "whether a reasonable factual basis
exists for questioning the judge's impartiality, "
mindful that "cases within § 455(a) are extremely
fact driven 'and must be judged on [their] unique facts
and circumstances more than by comparison to situations
considered in prior jurisprudence.'" Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995) (first quoting
United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993); then quoting United States v.
Jordan, 49 F.3d 152, 157 (5th Cir. 1995)); accord
Bryce v. Episcopal Church in the Diocese of Col., 289
F.3d 648, 659 (10th Cir. 2002). Judges not only have a strong
duty to recuse when appropriate, but also a strong duty to
sit, and the statute "must not be so broadly
construed that it becomes, in effect, presumptive, so that
recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice."
Nichols, 71 F.3d at 351 (emphasis added) (quoting
Cooley, 1 F.3d at 993). A new trial may be an
appropriate remedy if the judge's impartiality during the
trial could have reasonably been questioned. See United
States v. Nickl, 427 F.3d 1286, 1297-98 (10th Cir.
2005). On the record before us, however, Judge Shelby's
decision to not recuse sua sponte from participation
in Defendants-Appellants' trial cannot be characterized
as arbitrary or manifestly unreasonable. Plainly stated,
Judge Shelby did not err in failing to recuse. Consequently,
Defendants-Appellants were not entitled to a new trial based
on this failure.
many of the allegations of partiality raised on appeal
ultimately stem from various adverse rulings against
Defendants-Appellants. E.g., Aplt. Wells's Opening
Br. at 36-39 (complaining of adverse rulings by the court
during voir dire); id. at 40-41 (complaining of an
adverse evidentiary ruling); Aplt. Lyman's Opening Br. at
20 (complaining of an unspecified evidentiary ruling or
rulings); id. at 22 (alleging that bias infected the
court's rulings on motions in limine, voir dire, jury
instructions, and evidentiary rulings); id. at 23-24
(complaining of the court's rejection of a motion in
limine and its criticism of Mr. Lyman's attorney for
filing a motion to exclude within days of trial). But
"adverse rulings cannot in themselves form the
appropriate grounds for disqualification."
Nickl, 427 F.3d at 1298 (quoting Green v.
Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)).
Likewise, a "'judge's ordinary efforts at
courtroom administration, ' even if 'stern and
short-tempered' are 'immune' from charges of bias
and partiality, " and even allegations of
"'critical, ' 'disapproving, ' or
'hostile'" judicial remarks are insufficient.
Id. (quoting Liteky v. United States, 510
U.S. 540, 555-56 (1994)). To be sure, remarks made in the
course of trial may be sufficient to require a new
trial if "they reveal an opinion that derives
from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible." Liteky, 510
U.S. at 555. But Defendants- Appellants fail to point to any
such remarks or conduct here.
real crux of Defendants-Appellants' arguments lies in the
friendship between Judge Shelby and Mr. Bloch, SUWA's
legal director. Judge Shelby had a standing practice of
recusing himself from cases in which Mr. Bloch makes an
appearance. See Aplt. Wells's App., Vol. VI, at
1106-07 (Tr. Status Conf. for Jointly Managed R.S. 2477
Road Cases Litig., 2:10-cv-1073; 2:11-cv-1045, dated May
26, 2015). However he did not otherwise refrain from
presiding over cases involving SUWA. Id.
Defendants-Appellants allege that this friendship calls into
question the judge's impartiality.
specifically, they contend that a reasonable observer would
have questioned Judge Shelby's impartiality when the fact
of this friendship is combined with (1) SUWA's extensive
pretrial involvement in the case, notably, passing
information to both the offices of the U.S. Attorney and the
BLM in Utah, (2) Mr. Bloch's presence as a spectator at
trial, and (3) a voir dire question asking potential jurors
whether they, a family member, or a close friend was a member
of SUWA. Aplt. Wells's Opening Br. at 36-37. In effect,
they argue that since the judge recused himself for purposes
of sentencing, he also should have recused sua
sponte earlier-in light of the foregoing factors-before
presiding over their trial.
is not apparent to us that the mere fact that Judge
Shelby's friend was the litigation director for SUWA-an
organization that admittedly had taken public positions
against the use of ATV vehicles in Recapture Canyon and in
support of Defendants-Appellants' indictment and
trial-would have caused a reasonable observer to question
Judge Shelby's impartiality in presiding over
Defendants-Appellants' trial. We can find no case, nor do
Defendants-Appellants point to any, even suggesting that
recusal is required under these circumstances. In this
regard, we note that SUWA was not a party to this criminal
prosecution, nor had Mr. Bloch entered an appearance.
at no point before or during trial would a reasonable
observer who knows the relevant facts have expected Judge
Shelby to have known of SUWA's extensive pretrial
involvement in the case. Neither Mr. Bloch's presence as
a spectator at the trial nor the voir dire question
reasonably could have given Judge Shelby a basis to know of
SUWA's pretrial involvement. We cannot discern, nor do
Defendants-Appellants suggest, how Judge Shelby
could have inferred SUWA's involvement from
those facts, much less that he should have so
even assuming arguendo that such pretrial
involvement by SUWA militated in favor of Judge Shelby's
recusal, when viewed in the context of his close friendship
with SUWA's litigation director (Mr. Bloch), and the
other factors discussed herein, the record reveals no facts
that would have caused a reasonable observer to believe that
Judge Shelby should have known of SUWA's pretrial
involvement. Therefore, this circumstance could have no
bearing on the recusal analysis.
we conclude that Judge Shelby did not abuse his discretion in
not granting a new trial to Defendants-Appellants due to his
failure to recuse sua sponte from participation in
their trial. Defendants-Appellants have not shown that his
judgment was arbitrary, capricious, whimsical, or manifestly
unreasonable, and therefore their recusal-based argument for
a new trial fails.
Motions to Dismiss
Defendants-Appellants challenge the denial of their motions
to dismiss. Each raises different arguments. Mr. Wells
appears to claim that he cannot be prosecuted for his
activities because they were protected under the First
Amendment. Mr. Lyman argues that the government failed to
adequately allege interdependence, a required element of
conspiracy. We address the arguments of each in turn.
generally review a district court's denial of a motion to
dismiss a criminal indictment for abuse of discretion."
United States v. Berres, 777 F.3d 1083, 1089 (10th
Cir. 2015). However, embedded issues of law are reviewed de
novo. See United States v. Barrett, 496 F.3d 1079,
1091 (10th Cir. 2007) (considering a double-jeopardy
challenge de novo); see also United States v. Todd,
446 F.3d 1062, 1067 (10th Cir. 2006) (noting that "[w]e
review the [legal] sufficiency of an indictment de
novo"); United States v. Giles, 213 F.3d
1247, 1248-49 (10th Cir. 2000) ("Generally, we review
the grant or denial of a motion to dismiss an indictment for
an abuse of discretion. However, when the dismissal involves
issues of statutory interpretation, or when the sufficiency
of a charge is challenged, we review the district court's
decision de novo." (citation omitted)).
Wells seems to argue that his motion to dismiss ought to have
been granted on the grounds that he could not be prosecuted
for his First Amendment-protected activities. More
specifically, he argues that he could not be prosecuted
because the manner and means of the alleged conspiracy in
which he participated consisted solely of protected speech.
See Aplt. Wells's Opening Br. at 44-50.
stated before, in the context of a claimed bar to prosecution
under the First Amendment "[t]hat this court must
'view claims of a "right not to be tried" with
skepticism, if not with a jaundiced eye.'"
United States v. Quaintance, 523 F.3d 1144, 1146
(10th Cir. 2008) (quoting Dig. Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 873 (1994)). We have held
that the First Amendment may be the basis for a bar to
prosecution where the exercise of First Amendment rights
motivates "hostility" on the part of prosecutors.
United States v. P.H.E., Inc., 965 F.2d 848, 860
(10th Cir. 1992) (quoting United States v. Raymer,
941 F.2d 1031, 1042 (10th Cir. 1991)).
specifically, the defendant has the burden of proof and is
obliged to establish at the outset "(1) actual
vindictiveness, or (2) a realistic likelihood of
vindictiveness which will give rise to a presumption of
vindictiveness." Id. (quoting Raymer,
941 F.2d at 1040). "Thereafter, the burden shifts to the
prosecution to justify its decision with legitimate,
articulable, objective reasons." Raymer, 941
F.2d at 1040. At this juncture, courts inquire "whether,
'as a practical matter, there is a realistic or
reasonable likelihood of prosecutorial conduct that would not
have occurred but for the hostility . . . towards
the defendant because he exercised his specific legal
rights.'" Id. at 1042 (emphasis added)
(quoting United States v. Gallegos-Curiel, 681 F.2d
1164, 1169 (9th Cir. 1982)); see P.H.E., Inc., 965
F.2d at 860 (describing this inquiry as "the polestar to
guide the district court").
Wells argues that the prosecution's hostility became
evident only post-trial, when showings were made that SUWA
had pushed for prosecution of the Recapture Canyon riders and
also regularly passed Mr. Wells's social-media postings
on to prosecutors. But nowhere does he present any
evidence of prosecutorial hostility towards Mr.
Wells's exercise of his First Amendment rights. Even the
emails from SUWA officials to BLM officials reveal at most
that SUWA was simply interested in "protect[ing] the
resources of Recapture Canyon" against the
perceived-to-be-illegal ride, and not in limiting Mr.
Wells's First Amendment rights. Aplt. Wells's App.,
Vol. VI, at 1135; see id. at 1120-46. As noted,
defendants have the burden of establishing actual
vindictiveness or establishing a realistic likelihood of
vindictiveness. Mr. Wells has done neither.