United States v. Wells, s. 16-4006, 16-4007.

Decision Date23 October 2017
Docket NumberNos. 16-4006, 16-4007.,s. 16-4006, 16-4007.
Citation873 F.3d 1241
Parties UNITED STATES of America, Plaintiff–Appellee, v. Monte Jerome WELLS and Phillip Kay Lyman, Defendants–Appellants. Beaver County, Utah ; Box Elder County, Utah ; Carbon County, Utah; Daggett County, Utah ; Duchesne County, Utah ; Garfield County, Utah ; Iron County, Utah ; Kane County, Utah ; Millard County, Utah; Piute County, Utah; Rich County, Utah; San Juan County, Utah; Sevier County, Utah ; Tooele County, Utah ; Utah County, Utah ; Washington County, Utah ; Wayne County, Utah; Weber County, Utah, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

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.

HOLMES, Circuit Judge.

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.

I. BACKGROUND & PROCEDURAL HISTORY

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.

II. DISCUSSION

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."); ...

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