United States v. John Lewton

MEMORANDUM *

Defendant John Lewton appeals his conviction for violating 36 C.F.R. § 261.10 (c) by filming a bighorn sheep hunt for profit without a required special use permit for engaging in commercial activity on National Forest Land. Lewton contends that the government’s evidence is insufficient to support the guilty verdict because the government proved only that he took still digital photos, not video. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

In evaluating a sufficiency of the evidence claim, we “consider the evidence presented at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). We may affirm the conviction if the evidence “is adequate to allow any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis and alteration in original) (internal quotations omitted). We think the direct and circumstantial evidence presented to the magistrate judge sitting as the trier of fact was sufficient to meet the Supreme Court standard. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

The evidence…

dissenting:

I respectfully dissent. There was simply not sufficient evidence presented at trial to meet the applicable, beyond-a-reasonable-doubt standard.

Lewton certainly contracted with his customer to produce a film, and his customer thought Lewton had done the filming. But there is simply no evidence that Lewton actually did use the video recording part of his camera, rather than its still photography capability, during the hunt.

On direct examination, Lewton’s customer testified that he believed Lewton was filming. But he stated no specific basis for that belief, such as seeing Lewton pan as one does with a film camera or observing him push the buttons on the camera necessary for filming. Indeed, the customer, on cross examination, said that he did not know that the camera could also take stills, indicating that the only basis for his belief that Lewton was filming was that he was using the camera. The customer’s observations during the hunt are therefore worth very little as evidence that filming was going on. And although Lewton’s customer paid Lewton in full immediately after the hunt, the record does not indicate that he had seen any video footage before doing…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 23 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-30071

Plaintiff - Appellee, D.C. No. 4:10-cr-00104-GF-SEH

v.

MEMORANDUM*

JOHN EDWARD LEWTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding

Argued and Submitted May 13, 2014 San Francisco, California

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

Defendant John Lewton appeals his conviction for violating 36 C.F.R.

§ 261.10(c) by filming a bighorn sheep hunt for profit without a required special

use permit for engaging in commercial activity on National Forest Land. Lewton

contends that the government’s evidence is insufficient to support the guilty verdict

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. because the government proved only that he took still digital photos, not video.

We have jurisdiction under 28 U.S.C. § 1291, and we…