United States v. Wells

FILED
United States Court of Appeals
Tenth Circuit

October 23, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. Nos. 16-4006 and 16-4007
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.

APPEALS 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.

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

*
Phil Lyman appears pro se and is the Defendant-Appellant in No. 16-
4007. Having determined unanimously that oral argument would not materially
assist in the resolution of that appeal, the panel took it under submission on the
briefs, without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Citations to the appendix herein are to the appendix submitted in the companion
appeal, No. 16-4006, filed by Defendant-Appellant Monte Jerome Wells (i.e.,
“Aplt. Wells’s App.”).
1
All-terrain vehicles will be referred to consistently as ATVs, though
in the record and briefing they are sometimes designated as OHVs (“off-highway
(continued...)

-2-
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

1
(...continued)
vehicles”) or ORVs (“off-road vehicles”).
2
Two others were charged and tried before a jury with Defendants-
Appellants; they were ultimately acquitted of the charged offenses.

-3-
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

-4-
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.

-5-
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

-6-
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

3
Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.”).

-7-
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

4
Our liberal construction of Mr. Lyman’s briefing leads us to this
conclusion, but we do not “assume the role of advocate.” Ledbetter v. City of
Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003) (quoting Northington v. Jackson,
973 F.2d 1518, 1521 (10th Cir. 1992)). Mr. Lyman may also claim a violation of
due process by reason of the judge’s alleged bias. But because this requires a
stronger showing than a claim for a new trial based on error in not recusing, see
Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994) (requiring a showing of actual
bias or an appearance of bias strong enough to create a conclusive presumption of
actual bias), and because Mr. Lyman fails to meet the lower standard applied
here, we need not reach this question.

-8-
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)

-9-
(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

-10-
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

-11-
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

5
In some instances, Mr. Wells complains of decisions that cannot even
be properly characterized as adverse to Defendants-Appellants. Aplt. Wells’s
Opening Br. at 42 (complaining of the judge calling for a break “during a
particularly effective portion of Mr. Wells’ cross-examination of Mr. Palma,”
where defense counsel was asked by the court whether that moment was
convenient for a break and defense counsel assented); id. (complaining of the
judge “speaking for the government” where the judge merely suggested that the
government could stipulate that a photograph did not represent a closure sign on
the road in Recapture Canyon rather than having the defense elicit that from a
(continued...)

-12-
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-

5
(...continued)
witness; the government promptly agreed to so stipulate); id. at 42–43
(complaining of the judge’s timing in informing the jury of the parties’ stipulation
that the San Juan Water Conservancy District held a limited right-of-way within
Recapture Canyon, where the defendants did not object).

-13-
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

-14-
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

-15-
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

-16-
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.”

-17-
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. Mr. Lyman

Mr. Lyman argues that the district court erred in denying his motion to

dismiss. He states cursorily and without argument that the government failed to

-18-
allege interdependence, a required element of conspiracy. Even given our liberal

construction of pro se briefing, Mr. Lyman has not adequately presented this

argument in his opening brief; accordingly, we may deem it waived. See United

States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011) (noting that we will

not “make arguments for” a litigant); Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief

are waived.”). In any event, the argument fails.

To determine the sufficiency of an indictment we apply a two-part test:

“First, the indictment must contain the elements of the offense and sufficiently

apprise the defendant of what he must be prepared to meet; second, it must be

such as to show to what extent he may plead a former acquittal or conviction as a

bar to further prosecution for the same cause.” Berres, 777 F.3d at 1089 (quoting

United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983)). Mr. Lyman’s

argument implicates only the first prong of this test.

“Interdependence exists where coconspirators ‘inten[d] to act together for

their shared mutual benefit within the scope of the conspiracy charged.’” United

States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009) (quoting United States v.

Evans, 970 F.2d 663, 671 (10th Cir. 1992)). However, in dealing with a charging

document alleging conspiracy, we require only that it “contain the essential

elements upon which the underlying offense rests,” and those elements “need not

be charged with the same degree of specificity as would ordinarily be required in

-19-
a prosecution based on the underlying offense.” United States v. Bedford, 536

F.3d 1148, 1156 (10th Cir. 2008) (quoting United States v. Daily, 921 F.2d 994,

999 (10th Cir. 1990), overruled on other grounds by United States v. Gaudin, 515

U.S. 506 (1995)). With regard to interdependence, so long as the charging

document “describe[s] the interdependent behavior of the coconspirators,” it is

sufficient. Id. at 1157.

Here, the superseding information adequately set out how Mr. Lyman and

Mr. Wells interdependently worked together to publicize their plans to ride ATVs

in the closed portion of Recapture Valley and then rode the trail. Specifically, it

alleges how the Defendants-Appellants worked together to:

publish[ ] and promote[ ] on various social media websites an
invitation . . . to the public to join the proposed ATV ride
through the off-road vehicle restricted area . . . . [They] filmed
a three-part video interview in which they discussed the nature,
the origin, and plans of the proposed ATV ride through the off-
road vehicle restricted area . . . . [They] promoted [that] video
interview . . . on various social media websites.

Aplt. Wells’s App., Vol. I, at 40. These specific allegations sufficiently aver that

the Defendants-Appellants worked together for their mutual benefit in the context

of their conspiracy to ride ATVs on the closed portion of Recapture Canyon in

protest of BLM’s 2007 closure order. The superseding information’s allegations

of interdependence are sufficient. Mr. Lyman’s motion-to-dismiss argument thus

-20-
fails. 6

C. Mr. Wells’s Insufficiency of the Evidence Claim

Mr. Wells argues essentially that the government failed to introduce

sufficient evidence that he was acting as a coconspirator rather than as a

journalist. See Wells’s Reply Br. at 16–18. “We engage in de novo review of the

sufficiency of the evidence to support the conviction . . . . [W]e treat the

evidence in the light most favorable to the Government and ask whether a rational

fact-finder could have concluded beyond a reasonable doubt that the defendant

was guilty.” United States v. Kamahele, 748 F.3d 984, 1002 (10th Cir. 2014)

(citation omitted). In doing so, we ask simply “whether [the] evidence, if

believed, would establish each element of the crime.” Id. (quoting United States

v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004)). Here, the relevant

6
Though there is little indication of it, the government seems to
understand Mr. Lyman to be making an argument regarding the lawfulness of the
BLM’s 2007 closure order in the context of challenging the district court’s
decision regarding his motion to dismiss. See Aplee.’s Br. at 31 (including a
subsection entitled “Recapture Canyon was lawfully closed to OHVs”). Insofar
as Mr. Lyman is actually making such an argument in the motion-to-dismiss
context, we deem it to be too bare-bones to warrant appellate consideration and
thus declare it waived. See, e.g., United States v. Pursley, 577 F.3d 1204, 1231
n.17 (10th Cir. 2009) (“Under our precedent, this skeletal reference is insufficient
to raise the ex parte/disclosure concern as a discrete appellate issue.”). That said,
Mr. Lyman’s briefing, generously construed, does join Mr. Wells’s attack on the
legality of the 2007 closure order in mounting a challenge based on suppressed
evidence. We fully address that challenge infra and find it to be without merit.

-21-
crime is a conspiracy, under 18 U.S.C. § 371, to violate the BLM’s 2007 closure

order.

“A conviction of conspiracy under 18 U.S.C. § 371 requires: (1) an

agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the

conspiracy’s object, and (5) proof that the defendant wilfully entered the

conspiracy.” United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).

Here, Mr. Wells appears to challenge the sufficiency of the evidence on the

element of the existence of an agreement, insofar as he claims to have been acting

as a journalist rather than a coconspirator.

The evidence presented by the government, however, was sufficient for a

jury to find beyond a reasonable doubt that Mr. Wells acted not merely as a

journalist reporting on issues important to his local community, but as a

coconspirator who agreed with Mr. Lyman to ride a portion of the closed

Recapture Canyon trail on ATVs. More specifically, Mr. Wells reposted Mr.

Lyman’s advertisements of the ATV protest ride, often adding flourishes of his

own that suggested active support for and agreement with the planned ride on the

closed portion of Recapture Canyon.

For example, the government’s trial exhibit 73 is largely a reposting of an

announcement by Mr. Lyman, but with the addition of the text “Show your

support click ‘Like’ and Share!” and a large, iconic image of Uncle Sam pointing

at the reader and stating “We Need You!!!” Aplee.’s Supp. App., Vol. I, at

-22-
177–78 (PetroGlyph posting entitled “Recapture—Our Public Lands,” May 10,

2014); see also id. at 193 (PetroGlyph Facebook posting of same statement of Mr.

Lyman, dated May 7) (added epigraph stating: “Twenty years from now you will

be more disappointed by the things that you didn’t do than by the ones you did

do.”). That posting further states: “It is only motorized machines that are deemed

unfit (by the BLM) for these trails. I for one plan to be riding an ATV, carefully

and respectfully, on these well established trails which have existed in this

canyon for many many many years.” Id. at 177.

In a video interview of Mr. Lyman conducted by Mr. Wells, in addition to

generally agreeing with Mr. Lyman’s plans and reasons for the protest ride, Mr.

Wells twice implies that he has agreed to ride on the trail with Mr. Lyman. See

Aplee.’s Supp. App., Vol. I, at 184 (Disc 3 Video Clip (conventionally filed))

(“[The BLM’s officials] haven’t been willing to come down and show you where

[cultural sites] are so we can avoid it?” (16:23) (emphasis added)); id. (“We’ve

got some issues with the trail itself, where it hasn’t been maintained for the last

eight years, seven years, and so there’s some places you can’t get through unless

we do some trail maintenance . . . . That may prevent us from riding parts of it or

whatever. But there’s still some trails that have roads in them that we’re looking

at.” (19:33) (emphasis added)). Taken together with the evidence showing that

Mr. Wells in fact rode the closed portion of the trail on an ATV, the jury could

infer that Mr. Wells knowingly and voluntarily agreed with Mr. Lyman to ride

-23-
ATVs in the closed portion of Recapture Canyon. The evidence presented was

legally sufficient to sustain a conviction for conspiracy.

D. Brady Claims

Defendants-Appellants next contest the district court’s denial of their

motion for a new trial based on the posttrial discovery of a 1979 map allegedly

showing a Revised Statute (“R.S.”) 2477 7 right-of-way that the

7
Our 2005 decision in Southern Utah Wilderness Alliance v. Bureau of
Land Management (“SUWA v. BLM”), 425 F.3d 735 (10th Cir. 2005), offers an
excellent primer on R.S. 2477. Rather than reinvent the wheel here, we are
content to share this discussion:

In 1866, Congress passed an open-ended grant of “the right of
way for the construction of highways over public lands, not
reserved for public uses.” This statute, commonly called “R.S.
2477,” remained in effect for 110 years, and most of the
transportation routes of the West were established under its
authority. During that time congressional policy promoted the
development of the unreserved public lands and their passage
into private productive hands; R.S. 2477 rights of way were an
integral part of the congressional pro-development lands policy.

In 1976, however, Congress abandoned its prior approach
to public lands and instituted a preference for retention of the
lands in federal ownership [by passing the Federal Land Policy
and Management Act of 1976], with an increased emphasis on
conservation and preservation. As part of that statutory sea
change, Congress repealed R.S. 2477. There could be no new
R.S. 2477 rights of way after 1976. But even as Congress
repealed R.S. 2477, it specified that any “valid” R.S. 2477 rights
of way “existing on the date of approval of this Act” (October 21,
1976) would continue in effect. The statute thus had the effect
of “freezing” R.S. 2477 rights as they were in 1976.

(continued...)

-24-
7
(...continued)
The difficulty is in knowing what that means. Unlike any
other federal land statute of which we are aware, the
establishment of R.S. 2477 rights of way required no
administrative formalities: no entry, no application, no license,
no patent, and no deed on the federal side; no formal act of
public acceptance on the part of the states or localities in whom
the right was vested. As the Supreme Court of Utah noted 75
years ago, R.S. 2477 “‘was a standing offer of a free right of way
over the public domain,’” and the grant may be accepted
“without formal action by public authorities.” In its Report to
Congress on R.S. 2477: The History and Management of R.S.
2477 Rights-of-Way Claims on Federal and Other Lands, the
Department of the Interior explained that R.S. 2477 highways
“were constructed without any approval from the federal
government and with no documentation of the public land
records, so there are few official records documenting the
right-of-way or indicating that a highway was constructed on
federal land under this authority.”

To make matters more difficult, parties rarely had an
incentive to raise or resolve potential R.S. 2477 issues while the
statute was in effect, unless the underlying land had been
patented to a private party. If someone wished to traverse
unappropriated public land, he could do so, with or without an
R.S. 2477 right of way, and given the federal government’s pre-
1976 policy of opening and developing the public lands, federal
land managers generally had no reason to question use of the
land for travel. Roads were deemed a good thing. Typical was
the comment by the great nineteenth-century Michigan jurist,
Thomas Cooley, that “[s]uch roads facilitate the settlement of the
country, and benefit the neighborhood, and in both particulars
they further a general policy of the federal government. But they
also tend to increase the value of the public lands, and for this
reason are favored.” Thus, all pre-1976 litigated cases involving
contested R.S. 2477 claims (and there are dozens) were between
private landowners who had obtained title to previously-public
land and would-be road users who defended the right to cross
(continued...)

-25-
government failed to disclose before trial. Defendants-Appellants make two

separate arguments: (1) they contend that the 1979 map would have permitted

them to establish the existence of an R.S. 2477 right-of-way to negate the legality

of BLM’s 2007 closure order, as applied to the portion of the Recapture Canyon

7
(...continued)
private land on what they alleged to be R.S. 2477 rights of way.

Now that federal land policy has shifted to retention and
conservation, public roads and rights of way in remote areas
appear in a different light. Some roads and other rights of way
are undoubtedly necessary, but private landowners express the
fear that expansive R.S. 2477 definitions will undermine their
private property rights by allowing strangers to drive vehicles
across their ranches and homesteads. Conservationists and
federal land managers worry that vehicle use in inappropriate
locations can permanently scar the land, destroy solitude, impair
wilderness, endanger archeological and natural features, and
generally make it difficult or impossible for land managers to
carry out their statutory duties to protect the lands from
“unnecessary or undue degradation.” They argue that too loose
an interpretation of R.S. 2477 will conjure into existence rights
of way where none existed before, turning every path, vehicle
track, or dry wash in southern Utah into a potential route for cars,
jeeps, or off-road vehicles. For their part, the Counties [of
southern Utah] assert that R.S. 2477 rights of way are “major
components of the transportation systems of western states,” and
express the fear that federal land managers and conservationists
are attempting to redefine those rights out of existence, with
serious “financial and other impacts” on the people of Utah.
Thus, the definition of R.S. 2477 rights of way across federal
land, which used to be a non-issue, has become a flash point, and
litigants are driven to the historical archives for documentation
of matters no one had reason to document at the time.

Id. at 740–742.

-26-
trail on which they rode; and (2) they argue that they at least should have been

able to present the map as evidence relevant to their good-faith defense, since a

violation of the law under which they were convicted requires that a defendant

acted knowingly and willfully. See Aplt. Wells’s Opening Br. at 50–57. 8 Thus,

the Defendants-Appellants contend that the district court erred in not granting

them a new trial to use the map in these ways. 9 The government argues that no

8
Mr. Lyman appears to disclaim any desire to raise an R.S. 2477
defense yet states that he did raise it “as a matter of uncontested fact.” See Aplt.
Lyman’s Opening Br. at 29–30. Construing this liberally in light of his reply
brief, he appears to argue that it is a fact that they were on a county R.S. 2477
right-of-way. See Aplt. Lyman’s Reply Br. at 17–26. However, Mr. Lyman does
not offer legal argument in support of this assertion of “fact,” nor does he clearly
explain why the district court erred in failing to grant him a new trial on this
basis. Without crossing the line of being his advocate, see, e.g., Hall v. Belmon,
935 F.2d 1106, 1110 (10th Cir. 1991), we give Mr. Lyman, insofar as his filings
plausibly may be read to assert similar contentions, the benefit of Mr. Wells’s
arguments.
9
In passing, Mr. Wells asserts that the prosecutor, in his closing
argument, infringed on his constitutional right not to testify. He argues that the
prosecutor commented on his choice not to testify by pointing out that no
evidence had been introduced showing that the permission to use the pipeline
right-of-way that Mr. Ferd Johnson had given to Mr. Lyman had ever been
communicated to any other defendant:

Let’s discuss briefly what Mr. Johnson said and what he
did not say. The only testimony from Mr. Johnson was that he
spoke with Mr. Lyman in March of 2014 and said it was okay.
There was no testimony from Mr. Johnson ever that he spoke
with Mr. Wells, [or the other two defendants, who were
ultimately acquitted] giving them permission to use the right-of-
way, and no evidence has been produced from Mr. Johnson, from
the Government’s witnesses or from any of the exhibits admitted
into evidence suggesting that Mr. Lyman ever communicated that
(continued...)

-27-
Brady violation occurred because the map in question is not material.

We review de novo the existence of a Brady violation. See United States v.

Reese, 745 F.3d 1075, 1083 (10th Cir. 2014). Proving a Brady claim requires the

defendant to show by a preponderance of the evidence (1) that the government

suppressed evidence, (2) that the evidence was favorable to the defendant, and (3)

that the evidence was material. See id.; accord United States v. Geames, 427 F.3d

1333, 1337 (10th Cir. 2005). Only the materiality element is at issue on appeal.

Materiality requires “a reasonable probability that the result of the

9
(...continued)
to any of the other Defendants. Thus, they can’t avail themselves
of some permission that they never heard about.

Aplt. Wells’s App., Vol. IV, at 918.

Mr. Wells did not raise this argument below, as he concedes in his reply
brief, but he argues that comments on a defendant’s failure to testify are plain
error. See Aplt. Wells’s Reply Br. at 25–26. Even if this generally were true, the
prosecutor’s comments could not be deemed improper here because it was not the
case that “the language used [by the prosecutor] was manifestly intended or was
of such character that the jury would naturally and necessarily take it to be a
comment on the defendant’s right to remain silent.” Battenfield v. Gibson, 236
F.3d 1215, 1225 (10th Cir. 2001) (quoting Pickens v. Gibson, 206 F.3d 988, 998
(10th Cir. 2000)). A prosecutor is “free to comment on a defendant’s failure to
call certain witnesses or present certain testimony.” Id. (quoting Pickens, 206
F.3d at 999). But the prosecutor here did not even go that far. Instead, his
phrasing shows a careful attention not to comment on the fact that the
Defendants-Appellants themselves did not offer testimony. The prosecutor
limited himself to calling the jury’s attention to the absence of proof relevant to
the Defendants-Appellants’ good-faith defense, as reflected in the limits of Mr.
Johnson’s and the government witnesses’ testimony, as well as the exhibits that
had been introduced into evidence. This does not amount to an improper
comment on the Defendants-Appellants’ decision not to testify.

-28-
proceeding would have been different had the evidence been disclosed.” Reese,

745 F.3d at 1083; accord Kyles v. Whitley, 514 U.S. 419, 434 (1995). Put

differently, “the likelihood of a different result [must be] great enough to

undermine confidence in the outcome.” United States v. Garcia, 793 F.3d 1194,

1205 (10th Cir. 2015) (quoting Reese, 745 F.3d at 1083)).

1. Materiality for a Good-Faith Defense

We conclude that the map could not have been material for purposes of the

Defendants-Appellants’ good-faith defense. As the district court pointed out, the

map cannot even be relevant on this point because Defendants-Appellants were

unaware of the map at the time of the ATV ride. See Aplt. Wells’s App., Vol.

VII, at 1326 n.45 (Mem. Decision & Order Den. Mot. for New Trial, dated Oct.

22, 2015). On appeal, the Defendants-Appellants do not contest their lack of

knowledge of the map. Rather, they (or, more precisely, Mr. Wells; Mr. Lyman’s

briefing on this point is unclear), argue that the map, despite the fact that it was

unknown to them, “lends credence to the fact that the county road and its R.S.

2477 right-of-way was well-known in the county,” Aplt. Wells’s Reply Br. at 22,

and that “this map could have been used to bolster their suspicion that they were

on a historical right-of-way, but lacked the evidence to prove [it].” Aplt. Wells’s

Opening Br. at 54.

However, although the Defendants-Appellants thus argue that the R.S. 2477

right-of-way was well known, they do not argue that they subjectively believed in

-29-
its existence—the relevant question for their good-faith defense. Further,

although Mr. Wells now claims that he had a suspicion that a right-of-way

existed, a suspicion is not an “honest belief” that the road was not legally closed

to ATV use. See United States v. Chavis, 461 F.3d 1201, 1208–09 (10th Cir.

2006) (discussing availability of good-faith defense to the intent-to-deceive

element of mail fraud); cf. United States v. Duncan, 850 F.2d 1104, 1116 (6th Cir.

1988) (stating that the district court “correctly noted that an instruction [for a

good-faith defense] should not be given ‘if it lacks evidentiary support or is based

upon mere suspicion or speculation’” (quoting United States v. James, 819 F.2d

674, 675 (6th Cir. 1987)), overruled on other grounds by Schad v. Arizona, 501

U.S. 624 (1991)). Accordingly, Defendants-Appellants cannot establish that the

1979 map would have been material to their good-faith defense.

2. Materiality for an R.S. 2477 Defense

Mr. Wells argues that the map is material because it proves the existence of

an R.S. 2477 right-of-way on the road the protest was held on and that such a

right-of-way would undo the legality of the BLM’s 2007 closure order. Put

another way, he reasons that the right-of-way would have established that the

BLM did not have the authority to prohibit Defendants-Appellants’ ATV use on

that road. However, the district court held, following an earlier District of Utah

decision in United States v. Jessop, Nos. 2:08-CR-245-TC, 2:06-CR-553-RTB,

2010 WL 5395091 (D. Utah Dec. 27, 2010) (unpublished), that criminal

-30-
defendants do not have “standing” to raise an unadjudicated R.S. 2477 defense

and so the map is not admissible evidence. See Aplt. Wells’s App., Vol. VII, at

1322.

In this regard, we have repeatedly held, in the context of civil actions to

establish R.S. 2477 right-of-ways, that the Quiet Title Act (“QTA”), 28 U.S.C.

§ 2409a, is the “exclusive means by which adverse claimants [can] challenge the

United States’ title to real property.” Kane Cty. v. United States, 772 F.3d 1205,

1210 (10th Cir. 2014) (quoting Block v. North Dakota, 461 U.S. 273, 286 (1983));

accord San Juan Cty. v. United States, 754 F.3d 787, 793 (10th Cir. 2014); Sw.

Four Wheel Drive Assoc. v. Bureau of Land Mgmt., 363 F.3d 1069, 1071 (10th

Cir. 2004); Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978).

Importantly, we also have ruled that individual members of the public do not have

a cognizable claim to public roads; more specifically, they cannot satisfy the QTA

requirement to “set forth with particularity the nature of the right, title, or interest

which the plaintiff claims in the real property.” Sw. Four Wheel Drive, 363 F.3d

at 1071 (quoting 28 U.S.C. § 2409a(d)); Kinscherff, 586 F.2d at 160 (“Members

of the public as such do not have a ‘title’ in public roads . . . . Thus the ‘interest’

plaintiffs seek to assert as part of the public is not of such a nature to enable them

to bring a suit to quiet title.”). The district court relied on the reasoning

underlying these authorities to conclude that Defendants-Appellants lacked

standing to raise a R.S. 2477 defense.

-31-
 However, Mr. Wells stresses that—unlike the civil cases that the district

court relied on—Defendants-Appellants do not seek to quiet title to land against

the United States; that is, they do not seek to claim title to, or an interest in, the

Recapture Canyon trail. Rather, in their criminal prosecution, they seek to

present evidence of an R.S. 2477 right-of-way to attack the legality of the BLM’s

2007 closure order. If the BLM did not have the lawful authority to prohibit them

from using ATVs on the route that they traveled because it was an unadjudicated

R.S. 2477 right-of-way, then Defendants-Appellants contend that their conduct

could not have been illegal.

Mr. Wells contends that they must be permitted to raise such a defense in a

criminal setting; otherwise, their due-process rights will be infringed. The

government rejects this due-process concern. Specifically, it asserts that due-

process arguments must be predicated on the deprivation of an individual’s

substantive right, and since neither Defendant-Appellant has such an individual

right (i.e., “standing”) to establish the R.S. 2477 right-of-way, no due-process

violation can result from denying them the opportunity to present evidence of

such a right-of-way.

Ultimately, we conclude that, even assuming that Defendants-Appellants

were entitled to present evidence regarding the existence of an R.S. 2477 right-of-

way on their travel route in mounting a defense to their criminal charges, and that

such a defense could establish the illegality of the BLM’s 2007 closure order, the

-32-
district court did not err in denying Defendants-Appellants a new trial because the

1979 map was not material within the meaning of Brady.

Before explaining the basis for this conclusion, we pause to identify one

factor that does not undergird it: that is, the Defendants-Appellants’ purported

lack of “standing” to seek the adjudication of an R.S. 2477 right-of-way under the

QTA. We think this factor is irrelevant and only serves to muddy and confuse the

analysis. We must therefore respectfully part company with the district court’s

reasoning, which the government embraces. The term “standing” typically

denotes a matter of jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 88 (1998) (“Petitioner, however, . . . has raised the issue of

respondent’s standing to maintain the suit, and hence this Court’s jurisdiction to

entertain it.”).

However, it is clear that the district court here had constitutional

jurisdiction under Article III of the Constitution to adjudicate this criminal case.

See Bond v. United States, 564 U.S. 211, 217 (2011) (reversing the Third

Circuit’s holding that a criminal defendant lacked standing to raise a Tenth

Amendment challenge to a federal statute because any rights under the Tenth

Amendment accrued not to the defendant but to the states, and holding that the

defendant-appellant’s “challenge to her conviction and sentence ‘satisfies the

case-or-controversy requirement, because the incarceration . . . constitutes a

concrete injury, caused by the conviction and redressable by invalidation of the

-33-
conviction.’” (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998))). And it is

equally patent that the court possessed statutory jurisdiction under 18 U.S.C.

§ 3231. See, e.g., United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990)

(noting that purported defense counsel’s “memorandum blithely ignored 18

U.S.C. § 3231 which explicitly vests federal district courts with jurisdiction over

‘all offenses against the laws of the United States’”); United States v. Tony, 637

F.3d 1153, 1158 (10th Cir. 2011) (“The district court had jurisdiction. 18 U.S.C.

§ 3231.”); cf. United States v. DeVaughn, 694 F.3d 1141, 1146, 1153 (10th Cir.

2012) (rejecting the view that “a charging document’s failure to state an offense

affects a federal court’s jurisdiction, and noting that “[a] claim that a criminal

statute is unconstitutional [as applied to the defendant] does not implicate a

court’s subject matter jurisdiction”).

Moreover, the Supreme Court has made clear that courts err by

characterizing as a question of “standing” the issue of whether a particular litigant

is authorized to bring a substantive claim under a statute. See Lexmark Int’l, Inc.

v. Static Control Components, Inc., --- U.S. ----, 134 S. Ct. 1377, 1387 (2014)

(“Although we admittedly have placed [the zone-of-interests] test under the

‘prudential’ [standing] rubric in the past, it does not belong there . . . . Whether a

plaintiff comes within ‘the “zone of interests”’ is an issue that requires us to

determine, using traditional tools of statutory interpretation, whether a

legislatively conferred cause of action encompasses a particular plaintiff’s claim.”

-34-
(citation omitted)); Bond, 564 U.S. at 218–19 (holding that Tennessee Electric

Power Co. v. TVA, 306 U.S. 118 (1939), had improperly conflated the merits

question of whether the plaintiff in that case had a cause of action with the

justiciability question of whether the plaintiff had standing to raise a federalism

challenge).

Thus, the question that courts have misguidedly used the term “standing” to

describe in the QTA context is really whether a particular litigant is a member of

a class that Congress has authorized to sue to quiet title against the United States.

And that question is not relevant in this criminal prosecution. As noted,

Defendants-Appellants do not seek to quiet title against the United States under

the QTA; instead, they seek to present a defense that challenges the legality of the

BLM’s 2007 order by presenting evidence that the order unlawfully barred their

use of an R.S. 2477 right-of-way. Thus, for purposes of our ultimate conclusion,

we do not consider Defendants-Appellants’ “standing”—in particular, as it relates

to the QTA—to be relevant.

However, partly due to the misdirected efforts and “confusion,” Bond, 564

U.S. at 219, in the parties’ briefing relating to the standing question, we deem it

most fair and efficient to predicate our analysis on two key assumptions. These

assumptions will permit us to move more directly to the heart of the matter—i.e,

materiality—and to bypass the constitutional question of whether Defendants-

Appellants’ due-process rights would be violated if they are prevented from

-35-
mounting an R.S. 2477 defense to their criminal charges. See, e.g., United States

v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (“The Supreme Court has long

endorsed, if not always adhered to, the notion that federal courts should address

constitutional questions only when necessary to a resolution of the case or

controversy before it.”); accord Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d

487, 508 (1st Cir. 2011) (“The court declined to adhere to the doctrine of

constitutional avoidance on the ground that it felt resolution of a constitutional

due process question was inevitable in the case before it. A decision on a

constitutional due process question was not necessary, was not inevitable, had

considerable impermissible consequences, and contravened the rule of

constitutional avoidance.”); cf. Prost v. Anderson, 636 F.3d 578, 594 (10th Cir.

2011) (declining “to depart from our general practice [of not considering

arguments for reversal not adequately presented in the opening brief] in this case,

given that significant and largely uncharted questions of the Constitution’s

meaning, questions whose proper outcome is far from certain, hang in the

balance”).

First, we assume, without deciding, that Defendants-Appellants may

present an R.S. 2477 defense in their criminal case as a means of attacking the

legality of the BLM’s 2007 closure order. Second, we similarly assume that

Defendants-Appellants are correct that if an R.S. 2477 right-of-way exists, and its

scope included ATV use, then the BLM lacked the authority to close the area in

-36-
question to ATV use.

We make these two assumptions—both favorable to Defendants-

Appellants—without prejudicing the government because, even with the benefit

of them, Defendants-Appellants cannot prevail. The district court did not err in

denying their motion for a new trial.

Generally speaking, under our precedents, establishing an R.S. 2477 right-

of-way requires showing, inter alia, that it had been “‘accepted’ by the public”

before the repeal of R.S. 2477. SUWA v. BLM, 425 F.3d at 770; see id. at 741

(“[Repeal of R.S. 2477] had the effect of ‘freezing’ R.S. 2477 rights as they were

in 1976.” (quoting Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir. 1988),

overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh,

956 F.2d 970 (10th Cir. 1992)(en banc)). Determining the existence and scope of

an R.S. 2477 route is an evidence-intensive inquiry. 10 See id. at 772–76

10
We recognize that, in the context of the QTA, the existence and
scope of a right-of-way or, more generally, an easement, is an issue for the judge.
See 28 U.S.C. § 2409a(f) (“A civil action against the United States under [the
Quiet Title Act] shall be tried by a court without a jury.”). Utah law follows a
somewhat similar approach. See Conatser v. Johnson, 194 P.3d 897, 900 (Utah
2008) (“Determining the scope of an easement is a question of law.”); Valcarce v.
Fitzgerald, 961 P.2d 305, 311 (Utah 1998) (“The finding that an easement exists
is a conclusion of law. Such a finding is, however, the type of highly fact-
dependent question . . . which accords the trial judge a broad measure of
discretion . . . .”). On this basis, the government contends that Defendants-
Appellants’ R.S. 2477 defense cannot be material. See Aplee.’s Br. at 35. The
underlying premise of the government’s argument appears to be that evidence
relevant to a ruling made by a judge—as opposed to a factual finding made by a
(continued...)

-37-
(surveying Utah and other states’ cases making use of extensive historical

evidence to establish the extent and nature of use over the required period); see

also San Juan Cty., 754 F.3d at 791 (describing broadly the evidence presented

over the course of a “nine-day bench trial” involving the determination of the

existence of an R.S. 2477 route); cf. SUWA v. BLM, 425 F.3d at 743 (describing

preliminary BLM determination of an R.S. 2477 route as involving “review[] [of]

a variety of documents, including U.S. and county public land records and

surveys, maps and aerial photography, wilderness inventory records, and BLM

10
(...continued)
jury—cannot, as a categorical matter, constitute Brady material.

Under the circumstances of this case, we are not persuaded by the
government’s argument, though we need not definitively opine on the matter.
Suffice it to say that the weaknesses of the government’s argument in this case do
not legally preclude us from assuming that Defendants-Appellants could make a
Brady argument based on the suppression of evidence pertinent to an R.S. 2477
defense. First of all, it is not self-evident at all that the procedures for
establishing the R.S. 2477 issue in the QTA context (i.e., a proceeding solely
before a judge) would have any relevance in the criminal-prosecution context,
much less be controlling, and the government cites no authority that meaningfully
speaks to this issue. And, second, the government likewise offers no legal
authority to support its underlying premise—viz., that a Brady claim cannot be
based on a piece of evidence that could only affect a question to be decided by the
court rather than the jury—and we have not unearthed any. For example, can it
truly be said that such evidence can never, as a categorical matter, engender “a
reasonable probability that the result of the proceeding would have been
different”? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of
the government’s scant presentation here, we may assume that Defendants-
Appellants could make a Brady argument based on the suppression of evidence
pertinent to an R.S. 2477 defense in a criminal prosecution.

-38-
planning, grazing and maintenance records” as well as “field investigations of

each disputed route”).

Given the evidence-intensive nature of such inquiries, one could reasonably

question how far a single map could ever advance the enterprise of establishing

an R.S. 2477 right-a-way. In any event, we have little difficulty here concluding

that the 1979 map not only falls far short of the task, but also cannot be deemed

material under Brady. 11 Specifically, the map simply shows a single red, dashed

line running alongside Recapture Creek. The map’s legend does not indicate the

significance of such a dashed line. Moreover, no other evidence was presented

during the trial concerning the scope or extent of use along the purported route

prior to repeal of R.S. 2477.

Thus, we would be hard-pressed to conclude that the map is sufficient to

establish the existence of an R.S. 2477 right-of-way, much less its scope. Nor,

more to the point, is the map material to such purposes. At most, one could infer

from the map’s dashed, single red line some public use as a thoroughfare before

1979. Even assuming in that regard that the line does indicate some form of

public use, the quantity of such use is not apparent from the face of the map.

Neither does the map speak in any apparent way to the scope of the use of the

route, such as whether ATVs were used on the route prior to the repeal of R.S.

11
A copy of the map and an enlarged image of the relevant area can be
found in a supplement infra .

-39-
2477 or whether it was instead a mere foot or horse trail. The map’s legend sheds

no light on these issues, nor does any other evidence in the record.

The Defendants-Appellants’ motion for a new trial before the district court

failed to otherwise shed light on why the map should be deemed material for

establishing an R.S. 2477 right-a-way. Instead, it simply assumes that the map

demonstrates the existence of such a right-of-way. See, e.g., Aplt. Wells’s App.,

Vol. VI, at 1178 (“[T]here was no disclosure that the BLM Map in the BLM’s

files indicated the existence of an R.S. 2477 right-of-way on Recapture Canyon

Road.”). An affidavit filed with the motion for a new trial averred conclusorily

that the dashed, red line denotes a public highway that is an unadjudicated R.S.

2477 right-a-way, and that it is the same route on which the Defendants-

Appellants rode. However, it is silent as to the scope of the alleged R.S. 2477

route, and the affidavit contains no assertion regarding the extent, nature, or

duration of public use of the route.

Defendants-Appellants’ appellate briefing similarly assumes that the map in

question establishes the existence of such a right-of-way. At best, their briefing

argues that the map could have “augmented” unspecified evidence “of a

legitimate right-of-way on a county road that nearby residents had been using for

decades.” Aplt. Wells’s Reply Br. at 22. But such speculation is insufficient to

establish materiality for Brady purposes. See United States v. Ahrensfield, 698

F.3d 1310, 1319 (10th Cir. 2012) (“In [determining whether evidence is material],

-40-
we evaluate the withheld evidence ‘in light of the entire record in order to

determine if the omitted evidence creates a reasonable doubt that did not

otherwise exist.’ We do not, however, resort to speculation. ‘The mere

possibility that evidence is exculpatory does not satisfy the constitutional

materiality standard.’” (citations omitted) (quoting Banks v. Reynolds, 54 F.3d

1508, 1518–19 (10th Cir. 1995))); cf. United States v. Rogers, 960 F.2d 1501,

1511 (10th Cir. 1992) (“Rogers further argues that had he been given the

documents in a timely manner, he could have reviewed, investigated, and properly

developed his defense, and that it is probable that the jury would have reached a

different result. We have held that, ‘the relevant standard of materiality does not

focus on trial preparation, but instead on whether earlier disclosure would have

created a reasonable doubt of guilt that did not otherwise exist.’” (quoting United

States v. George, 778 F.2d 556, 561–62 (10th Cir. 1985))). The mere possibility

that, in light of the map, the Defendants-Appellants might have been able to craft

a successful R.S. 2477 defense is not enough to make out a Brady claim.

In short, the evidence in the form of the 1979 map “is too little, too weak,

[and] too distant . . . to meet Brady’s standards.” Turner v. United States, --- U.S.

----, 137 S. Ct. 1885, 1894 (2017). Even if we make ambitious inferences from

the map and the accompanying affidavit, in our view, Defendants-Appellants have

not demonstrated the element of materiality. See, e.g., Geames, 427 F.3d at 1337

(“[T]he defendant has the burden of demonstrating [the three elements of a Brady

-41-
claim].”). The extent, scope, and duration of public use of the trail prior to 1976

is not established by the map, and because we are left with at best speculation as

to those decisive questions, Defendants-Appellants have failed to carry their

burden. Put another way, the map fails to create a reasonable probability of a

different outcome so as to cast doubt on Defendants-Appellants’

convictions—that is, it is not material under Brady. Accordingly, the district

court properly denied Defendants-Appellants’ motion for a new trial based on this

purported Brady violation.

E. Restitution

The district court ordered Mr. Lyman to pay approximately $96,000 in

restitution, of which the court ruled Mr. Wells was jointly and severally

responsible for $48,000. Mr. Wells principally challenges the restitution order on

two grounds: (1) it includes harms that are not recoverable as restitution because

they were not caused by the conspiracy and its underlying conduct, and (2) it

includes amounts that are not legally cognizable as actual loss or supported by the

evidence. Mr. Lyman appears to make a similar argument regarding causation

and also attacks the court’s fact finding.

“We review the legality of a restitution order de novo.” United States v.

Shengyang Zhou, 717 F.3d 1139, 1152 (10th Cir. 2013). We assess “the factual

findings underlying a restitution order for clear error and the amount of restitution

imposed for abuse of discretion.” Id. (quoting United States v. Bowling, 619 F.3d

-42-
1175, 1187 (10th Cir. 2010)). “The government bears the burden of proving the

amount of loss by a preponderance of the evidence.” United States v. Gallant,

537 F.3d 1202, 1247 (10th Cir. 2008); see also United States v. Galloway, 509

F.3d 1246, 1253 (10th Cir. 2007) (“The government bears the burden of proving

the amount of loss, and the district court resolves disputes over the proper amount

of restitution by the preponderance of the evidence.”). It necessarily follows that

the government also bears the same burden regarding the subordinate question of

what harms are properly included in the loss calculation because they are “a result

of the offense.” 18 U.S.C. § 3664(e); see United States v. Ritchie, 858 F.3d 201,

211 (4th Cir. 2017); United States v. Patty, 992 F.2d 1045, 1051 (10th Cir. 1993)

(“[A]lthough Defendant could be ordered to pay restitution in an amount up to

$25,000,000, she could not be ordered to pay restitution in excess of those losses

which the government proved were the result of her fraudulent acts.”).

1. Causation

Under the Mandatory Victims Restitution Act (“MVRA”), which

undisputedly governs the restitution analysis here, restitution shall be ordered for

an offense causing damage to property by either returning property, or if

impossible, impracticable, or inadequate, pay[ing] an amount
equal to . . . the greater of . . . the value of the property on the
date of the damage . . . or . . . the value of the property on the
date of sentencing, less . . . the value (as of the date the property
is returned) of any part of the property that is returned.

18 U.S.C. § 3663A(b)(1). The MVRA requires courts to order a defendant to pay

-43-
restitution to a “victim” of the offense. See 18 U.S.C. § 3663A(a)–(c). No party

disputes that the United States can constitute a “victim” under the MVRA. See

United States v. Quarrell, 310 F.3d 664, 677 (10th Cir. 2002) (“[T]he government

can be a ‘victim’ under the MVRA.”). However, the question here is for what

alleged harms can the United States properly recover restitution, and the answer

to that question requires an inquiry into causation.

The MVRA’s definition of “victim” provides:

[T]he term ‘victim’ means a person directly and proximately
harmed as a result of the commission of an offense for which
restitution may be ordered including, in the case of an offense
that involves as an element a scheme, conspiracy, or pattern of
criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or
pattern . . . .

18 U.S.C. § 3663A(a)(2) (emphases added).

In United States v. Speakman, we held that this language actually “sets

forth two separate ways an individual [or entity, like the United States] can be a

victim under the MVRA”: first, the government may show that the victim was

“directly and proximately harmed as a result of” the offense; and second, if a

scheme, conspiracy, or pattern of criminal activity is “an element” of the crime at

issue, the government may instead demonstrate that the victim was “directly

harmed by the defendant’s criminal conduct in the course of the scheme,

conspiracy, or pattern of criminal activity.” 594 F.3d 1165, 1169 (10th Cir. 2010)

(quoting § 3663A(a)(2)).

-44-
 Notably, “[t]he first clause [of the statute] also ‘includ[es]’ the second,” id.

at 1170 (third alteration in original), and thus all harms contemplated by the

statute must be “directly and proximately” caused and also must be “the result of

the commission of the offense.” § 3663A(a)(2). However, the way a person can

be shown to be a “victim” under the first clause is “in some ways broader [than

the second clause] because it requires only that the individual be harmed ‘as a

result of’ the defendant’s offense, and not ‘in the course of’ the offense.”

Speakman, 594 F.3d at 1169–70. “It thus follows that an individual could be

deemed a victim by meeting the first criteria only, and not the second.” Id. at

1170. Consequently, even if a defendant was convicted of an offense involving a

scheme, conspiracy, or pattern element—quite apart from the “in the course of”

criterion—the government’s evidence could still establish that a person suffered

injuries making them a “victim” by proving under the first clause that the harms

at issue were “as a result of” the offense. See id. (“Merrill Lynch’s harm cannot

be said to have arisen ‘in the course of the scheme.’ . . . Merril Lynch may still

be a victim of Mr. Speakman’s fraud if it meets the first criterion of

§ 3663A(a)(2): that is, Merrill Lynch may be a victim under the MVRA if it was

‘directly and proximately harmed as a result of’ Mr. Speakman’s fraud.”).

In addressing Defendants-Appellants’ causation challenge, we elect to

focus on whether the government has carried its burden under the first method.

Like the second, this method is governed by the overarching direct-and-proximate

-45-
standard. See Speakman, 594 F.3d at 1170 (noting that “[t]he first clause [of the

statute] also ‘includ[es] the second” (third alteration in original)). In Speakman,

we observed “that phrase ‘directly and proximately’ uses the conjunctive ‘and,’

which indicates that direct harm and proximate harm have separate meanings.”

Id. at 1171. And discerning these separate meanings to relate to, respectively,

“but-for” and “proximate” causation, the Speakman court held that “the

government must show both that the defendant’s conduct is the ‘but-for’ cause of

the individual’s [or entity’s] harm and that the defendant ‘proximately’ caused the

harm.” Id.; see 3 Charles Alan Wright, et al., F EDERAL P RACTICE & P ROCEDURE ,

C RIMINAL 4D § 546, Westlaw (database updated Apr. 2017) ( “Generally, the

government must show [under the federal restitution statute] both that the

defendant is the but-for cause of the person’s harm and that the defendant was the

proximate cause of the person’s harm.”). The general meanings of but-for and

proximate causation are well-known in the law. See, e.g., United States v.

Burkholder, 816 F.3d 607, 612–14 (10th Cir. 2016) (defining and analyzing the

concepts of but-for and proximate causation in the context of a criminal

prosecution).

But, more specifically, in the restitution context, the Supreme Court has

opined that “[t]he basic question that a proximate cause requirement presents is

‘whether the harm alleged has a sufficiently close connection to the conduct’ at

issue.” Robers v. United States, --- U.S. ----, 134 S. Ct. 1854, 1859 (2014)

-46-
(quoting Lexmark, 134 S. Ct. at 1390)). And answering this question generally

entails an inquiry into the foreseeability of the harm. See id. (“Robers argues that

where, as here, a victim receives less money from a later sale than the collateral

was worth when received, the market and not the offender is the proximate cause

of the deficiency. We are not convinced . . . . Fluctuations in property values are

common. Their existence . . . is foreseeable.” (citation omitted)); Catharine M.

Goodwin, F EDERAL C RIMINAL R ESTITUTION § 6:10, Westlaw (database updated

Aug. 2017) (“Post-MVRA case law on the causation of restitution harms has

demonstrated that the emerging criteria for whether an offense was the proximate

cause of a particular harm to a victim focus primarily on whether that harm was

reasonably foreseeable to the defendant in committing the offense of conviction .

. . .” (footnote omitted)); cf. Paroline v. United States, --- U.S. ----, 134 S. Ct.

1710, 1718, 1721, 1731 (2014) (rejecting restitution objection under statute that

has a “proximate-cause requirement” that is specifically focused on restitution for

crimes involving the sexual exploitation of children and child pornography in

particular by noting that “[i]t was readily foreseeable that Paroline’s crime could

cause Amy to suffer precisely the types of losses that she claims . . . .”). “As

Justice O’Connor has noted ‘proximate cause principles inject a foreseeability

element into [a] statute.’” Burkholder, 816 F.3d at 613 (alteration in original)

(quoting Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Oregon, 515

U.S. 687, 713 (1995) (O’Connor, J., concurring)).

-47-
 Turning to the parties’ arguments, with respect to but-for causation, the

government’s principal contention was that the conspiracy and its underlying

conduct was the but-for cause of “motorized damage to archeological, riparian,

and upland soil resources in the closed area.” Aplee.’s Br. at 43. We conclude

that the government presented ample evidence from which the district court could

find by a preponderance of the evidence that this was so. The court did not

clearly err in this regard.

Notably, the government introduced photos of the area taken before the ride

and photos taken two days after it; the latter supported its contentions of

motorized damage. Furthermore, prior to the restitution hearing, Chief Ranger

Moore offered an affidavit that the trail camera had taken photos of about thirty-

two “motorized vehicles”; though overexposed, the court could readily infer from

these photos that multiple riders traveled through the area in Recapture Canyon

that the BLM had closed to ATV users at the time of the protest ride and caused

significant motorized damage. See Aplee.’s Supp. App., Vol. III, at 323 (Aff. of

Chief Ranger Jason Moore) (noting that the thirty-two riders “would have had to

travel over seven archeological sites, through nine riparian crossings, and up

some steep hills”). Thus, we conclude that the government’s proof satisfied but-

for causation.

As for proximate causation, “[w]here there are causes in addition to the

offense conduct that appear to have contributed to the harm suffered by the

-48-
victims of the offense, the issue is raised as to whether the defendant bears the

risk of all the harm or whether the chain of causation was in effect broken by the

intervening cause, resulting in less harm for which the defendant would be held

liable in restitution.” Goodwin, supra, § 6:13. Thus, we reasoned in Speakman

that the proximate-cause requirement is satisfied “if either there are no

intervening causes, or, if there are any such causes, if those causes are directly

related to the defendant’s offense.” 594 F.3d at 1172; accord United States v.

Carmick, 796 F.3d 1206, 1223 (10th Cir. 2015); see also United States v.

Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999) (“[T]he main inquiry for causation

in restitution cases becomes whether there was an intervening cause and, if so,

whether this intervening cause was directly related to the offense conduct.”);

Goodwin, supra, § 6:13 (“In many cases the issue of intervening causation is a

key part of the restitution causation analysis.”). The direct-relation requirement

means that the intervening cause must not be “too attenuated . . . so that it would

be unjust to hold . . . responsible” the defendants. Speakman, 594 F.3d at 1172.

Mr. Wells and Mr. Lyman argue that the government did not establish

proximate causation because “the scope of the alleged conspiracy ended at the

turnaround on the Pipeline Road,” Aplt. Wells’s Opening Br. at 63; they

personally never traveled beyond that turnaround; and most of the damage

occurred beyond it. See Aplt. Lyman’s Opening Br. at 33 (arguing that the

government has “not produced convincing evidence that even one ATV traveled

-49-
past that point [i.e., the turnaround], and certainly cannot legitimately claim that

it was part of my plan to do so” (emphasis added)); Aplt. Wells’s Reply Br. at 28

(“Damage caused by riders off the Pipeline trail was not directly related to Mr.

Wells’ ride because (1) the conspiracy had terminated, and (2) Mr. Wells did not

cause the damage.”). In effect, Defendants-Appellants argue that if any damage

occurred at all, it was due to riders other than them who were not coconspirators

and whose conduct should not otherwise be attributed to them. In effect, they

reason that those other riders who continued riding south of the Pipeline Road

should be viewed as an intervening cause, breaking the chain of proximate

causation.

However, even if we assume arguendo, following the logic of Defendants-

Appellants’ argument, that the southbound riders were an intervening cause, we

still reject their ultimate conclusion. We determine that the government has

established proximate causation. Specifically, we conclude that this purported

intervening cause was directly related to the offense conduct—that is, the

conspiracy—and thus a proper predicate for the establishment of proximate

causation. In this regard, Defendants-Appellants’ focus on the ostensible

termination of the conspiracy is misguided. As we made clear in Speakman, in

the analogous context of a fraudulent scheme, intervening causes may still be

directly related to the offense conduct for purposes of proximate causation “well

after the conclusion” of that offense conduct. 594 F.3d at 1170; id. at 1172 (“We

-50-
have little difficulty in concluding that the arbitration was ‘directly related to the

offense conduct,’ because Mrs. Speakman initiated the arbitration directly in

response to Mr. Speakman’s fraud in an attempt to recover the money he stole

from her. This is a direct relationship that is not too attenuated from Mr.

Speakman’s fraud so that it would be unjust to hold him responsible.”).

In other words, even if we assume arguendo that those who rode south

beyond the Pipeline Road turnaround exceeded the conspiracy’s scope and were

not coconspirators, their conduct could still be deemed directly related to that

conspiracy. These riders initiated their ride in closed portions of Recapture

Canyon “directly in response to,” id. at 1172, Defendants-Appellants’

conspiratorial efforts, as the district court put it, to “organize a protest ride in

closed areas in Recapture Canyon.” Aplt.’s App., Vol. VII, at 1421 (Tr.

Restitution Hr’g., dated Oct. 28, 2015). And, as the court further observed, the

geography of the area made it entirely foreseeable that the riders would continue

south beyond the turnaround, even if the object of the conspiracy had been

attained. Specifically, the court noted:

The map presented by defendant Wells showing the proximity at
the end of the canyon, the Brown’s Canyon end, to the city of
Blanding further demonstrates the inevitability that riders would
not choose to follow the longer northern route to return back the
way they came but would loop back through the southern route
of Brown’s Canyon through the closed area.

Id. at 1421–22. In other words, that riders who had come to ride on closed trails

-51-
within Recapture Canyon as part of an unlawful conspiracy that Defendants-

Appellants promoted might ride on trails beyond those on which the Defendants-

Appellants themselves chose to ride and beyond those within the ostensible scope

of the conspiracy is the kind of intervening cause that has “a direct relationship

that is not too attenuated from” the conspiracy, Speakman, 594 F.3d at

1172—especially when one of these trails provided the most convenient route

back to a residential city. Cf. United States v. Spinney, 795 F.2d 1410, 1417 (9th

Cir. 1986) (awarding restitution under a pre-MVRA statute, in a conspiracy-to-

assault case that resulted in the deaths of the targeted parties, and noting that “[a]

restitution order is authorized if the defendant created the circumstances under

which the harm or loss occurred”). Accordingly, we conclude that the

government’s evidence established proximate causation.

***

In sum, the district court did not err in ruling that Defendants-Appellants

were responsible for paying restitution to the United States for damages stemming

directly and proximately from Defendants-Appellants’ unlawful conspiracy to

conduct a protest ride in closed portions of Recapture Canyon.

2. Amount of Actual Loss

Defendants-Appellants challenge three aspects of the total amount of

restitution ordered: (1) that the approximately $65,000 spent assessing the damage

caused by the ATV ride was “speculative archeological expenses disallowed in

-52-
Quarrel,” Aplt. Wells’s Opening Br. at 59; cf. Aplt. Lyman’s Opening Br. at 32;

(2) that the assessment costs were not “incurred during participation in the

investigation or prosecution of the offense,” Aplt. Wells’s Opening Br. at 60; and

(3) that at least some of the claimed amount was supported by estimates, not

concrete figures.

First, it is beyond dispute that restitution “must be based on actual loss.”

Quarrell, 310 F.3d at 680. However, contrary to Mr. Wells’s argument, the

damages assessment that the government requested—the cost of which was

included in the restitution order—does not constitute speculative, archaeological

damages of the kind that we barred in Quarrell. “Archaeological value” is a term

of art under the Archaeological Resources Protection Act (“ARPA”), 16 U.S.C.

§ 470ff(a)(2)(A), and is defined in its implementing regulations as “the value of

the information associated with the archaeological resource. This value shall be

appraised in terms of the costs of the retrieval of the scientific information which

would have been obtainable prior to the violation.” Quarrell, 310 F.3d at 679

(emphasis added) (quoting 43 C.F.R. § 7.14(a)). Thus, “archaeological value,”

rather than constituting a measure of actual loss, “is an effort to go back in time

before the violation occurred and estimate what it would have cost the United

States to engage in a full-blown archaeological dig at the site, notwithstanding the

fact that the United States had no plans to engage in any such effort.” Id.

(emphasis added) (quoting United States v. Hunter, 48 F. Supp. 2d 1283, 1288 (D.

-53-
Utah 1998)).

Thus, in Quarrell, we held that “includ[ing] archaeological value in

determining the amount of restitution” was error. Id. at 679–80. But here, the

parties disclaimed any applicability of the ARPA, Aplt. Wells’s App., Vol. VII, at

1336 (Mr. Lyman’s counsel stating that the ARPA is “sort of irrelevant to the

analysis” after the Assistant United States Attorney stated “This isn’t an ARPA

case”), and the assessment that took place was detailed and anything but

hypothetical, see Aplee.’s Supp. App., Vol. II, passim (detailed assessment of

damages). Although the damages assessment included ARPA estimates, id. at

294–301, those estimates were not the basis for the restitution order. Thus,

Quarrell is inapposite.

Second, the MVRA provides that, in all cases, a victim must be reimbursed

“for . . . expenses incurred during participation in the investigation or prosecution

of the offense.” 18 U.S.C. § 3663A(b)(1). And we have specifically recognized

that the government’s investigatory costs can constitute actual losses subject to

restitution. See Quarrell, 310 F.3d at 681 (holding there was no abuse of

discretion in including in a restitution order $300 for the services of a law

enforcement officer in investigating damage to archaeological sites). We thus

reject Mr. Wells’s assertion that the expenses the government incurred to assess

the motorized damage in Recapture Canyon were not incurred during its

participation in the investigation or prosecution of the offense.

-54-
 In particular, we conclude that the D.C. Circuit decision that Mr. Wells

cites is inapposite because that case establishes only that an internal investigation

“cannot be said to be necessary if the investigation was neither required nor

requested by criminal investigators or prosecutors.” United States v. Papagno,

639 F.3d 1093, 1095 (D.C. Cir. 2011). But here, the BLM requested the

assessment of damages for its criminal investigation of Defendants-

Appellants—indeed, besides having been undisputedly requested by the BLM,

every page of the assessment report is marked “PREPARED FOR LAW

ENFORCEMENT PURPOSES.” See Aplee.’s Supp. App., Vol. II, at 195. The

Defendants-Appellants do not otherwise argue that the assessment was

unnecessary. Accordingly, we can find no abuse of discretion in the court’s

inclusion as restitution of costs related to this assessment report.

Third, as to Mr. Wells’s final argument, we conclude that it is based on a

mistaken view of the record. Contrary to his position, the government did not

“admit[] that its damages ‘are not hard numbers’—‘there can be some wiggle

room in there.’” Aplt. Wells’s Opening Br. at 59–60. Read in context, the

prosecutor was simply attempting to explain why restitution figures from an

earlier case involving illegal trail construction in Recapture Canyon could not be

considered as a basis for comparison with the present case. 12 The restitution

12
Mr. Wells seeks to invoke such comparisons here in arguing that the
(continued...)

-55-
figure in that case could not provide a baseline for the present case, the

government reasoned, because there the defendants did not contest restitution,

entered a plea deal with the government, and the restitution amount was

negotiated. Thus, the $30,000 damages figure in the earlier case was not based on

“hard numbers” and so had “some wiggle room.” Defendants-Appellants’ final

argument is thus misguided and spurious.

***

Based on the foregoing, we uphold in full the district court’s award of

restitution.

F. Mr. Lyman’s Ineffective Assistance of Counsel Claim

Mr. Lyman attempts to raise here, on direct appeal, an ineffective

assistance of counsel claim. Because of the typical necessity of developing a

separate factual record pertinent to an ineffective-assistance claim, we have held

12
(...continued)
district court’s restitution order effected a disparate result when compared to the
restitution ordered in other criminal proceedings for similarly situated defendants.
Aplt. Wells’s Opening Br. at 64. However, this sort of argument is inapposite in
the MVRA context, where restitution is mandatory. Compare 18 U.S.C.
§ 3663A(a)(1) (“[W]hen sentencing a defendant convicted of an offense described
in subsection (c), the court shall order . . . .” (emphasis added)), with 18 U.S.C.
§ 3553(a)(6) (stating, as to elements of the discretionary criminal sentence, that
the court “shall consider . . . . the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct”), and United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008) (“[I]t
has been well settled that we review a district court's sentencing decisions solely
for abuse of discretion.”).

-56-
that “[i]neffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); accord United States v.

Holloway, 826 F.3d 1237, 1243 (10th Cir. 2016). Mr. Lyman makes no attempt to

argue that his claim is one of the rare ineffective-assistance claims that may and

should be addressed on direct appeal, and we see no reason to reach its merits.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment and

restitution order.

-57-
 SUPPLEMENT

A. 1979 BLM Map (Aplt. Wells’s App., Vol. VI, at 1189)

-58-
B. 1979 BLM Map Detail (Aplt. Wells’s App., Vol. VI, at 1191)

-59-
16-4006, 16-4007 – United States v. Wells

HARTZ, Circuit Judge, concurring:
I join the opinion except for the discussion in § II(D)(2) suggesting the possibility

that a defendant charged with what amounts to criminal trespass cannot challenge the

legality of a BLM closure order. Cf. United States v. Gemmill, 535 F.2d 1145, 1150–52

(9th Cir. 1976) (reversing trespass conviction on ground that forest supervisor lacked

authority to issue closure order).