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United States v. Wells

United States Court of Appeals, Tenth Circuit

October 23, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,


          Michelle Mumford, Mumford PC, Salt Lake City, Utah, for Defendant-Appellant Monte Jerome Wells.

          Phil Lyman, Blanding, Utah, filed a brief pro se. [*]

          Jared 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 Plaintiff-Appellee.

          J. 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.

          Before HARTZ, MURPHY, and HOLMES, Circuit Judges.


         Recapture 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")[1] 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.

         The 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).[2] 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.

         Following 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 land.

         On 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 affirm.


         San 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.

         Upset 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.

         A point 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.

         After 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.


         On 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, [3] and their restitution order. Mr. Lyman separately argues that he was deprived of effective assistance of counsel. We address each claim in turn.

         A. Recusal

         Judge 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 disqualify.

         Judge 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.

         Mr. 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.[4]

         The 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.

         Ordinarily, 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.

         Title 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. 2004)).

         Courts 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.

         First, many of the allegations of partiality raised on appeal ultimately stem from various adverse rulings against Defendants-Appellants.[5] 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.

         The 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.

         More 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.

         But it 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.

         Further, 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 inferred.

         Thus, 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.

         In sum, 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.

         B. Motions to Dismiss

         The 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.

         "We 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)).

         1. Mr. Wells

         Mr. 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.

         We have 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)).

         More 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").

         Mr. 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.

         2. ...

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