                           NOT FOR PUBLICATION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 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 (1979).

      The evidence established that on August 29, 2008, Phillip Ripepi e-mailed

Lewton seeking to hire him to film Ripepi’s upcoming bighorn sheep hunt due to

the high quality of Lewton’s previous hunting videos, which are advertised on the

internet and have earned Lewton worldwide recognition. Following that e-mail,

the two entered into a $7,000 contract for both video and still photography of the

hunt, which Ripepi ultimately paid in full after he shot and killed a bighorn ram on

federal land in Montana. Lewton used his large and bulky Canon video

recorder/camera throughout the three-day hunt in October 2008. Ripepi testified


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that he saw Lewton using the video recorder/camera while he hunted for the sheep,

and he “assumed” Lewton was filming those activities. After the hunt, Ripepi paid

Lewton the $7,000 he owed under the contract and he e-mailed Lewton the

following day saying, “I cannot wait for the photos and DVD.” After searching

Lewton’s taxidermy shop and truck on October 7, 2008, following the successful

hunt, game wardens recovered 193 still photos but found no video data. The

officers also recovered documents in Lewton’s shop downloaded from the internet

regarding commercial use permits with the headings “Filming on Public Lands”

and “When You’re Required to Have a Film Permit.” Lewton suggests that any

video taken of the hunt ending a day earlier should have been seized with the

camera and photos. However, he had already transferred the digital photos of the

hunt off of his camera and onto his shop laptop, and therefore he had ample

opportunity to remove the video data as well.

      While we can certainly appreciate that had our dissenting colleague been

sitting as the trier of fact she would have voted to acquit, that is not the scope of

our review. We cannot say on this evidence that no reasonable fact finder could

have found Lewton guilty. It strains common sense to think that Ripepi paid

$7,000 for only still photos when he specifically hired Lewton to video his “hunt of

a lifetime.”


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      While the government did not produce actual video evidence at trial, this

evidence was not required to sustain its burden of proof. We think there is

nonetheless sufficient direct and circumstantial evidence to permit a rational trier

of fact to find Lewton guilty beyond a reasonable doubt under the Jackson standard

for conducting a business activity or service for commercial benefit and private

financial gain, without permit, license, or other lawful authority to conduct such

business activity on National Forest lands in violation of 36 C.F.R. § 261.10(c).

      AFFIRMED.




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                                                                               FILED
United States v. Lewton, 13-30071                                              MAY 23 2014

                                                                            MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                           U.S. COURT OF APPEALS



      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 so.

      Moreover, that Lewton had looked at the filming regulations is no more

likely to support the inference that he did not follow them than the inference that
he did. He could have decided not to do the filming once he learned that he needed

a permit he did not have.

      The question is not, as the majority suggests, whether it is necessary to have

the DVDs produced to prove beyond a reasonable doubt that Lewton filmed the

hunt. Instead the question is what evidence there was that he did the filming, as

opposed to promised to do the filming. Given a dual use camera, there simply is

insufficient evidence of that — indeed, there is essentially none.

      The majority misstates my position as contending that Lewton’s customer

paid $7,000 for still photos of his hunt. Not so. My point is that there must be

sufficient evidence of what Lewton actually did — not what he said he would do,

or what his customer thought he had done. Absent evidence of the former, there is

insufficient support for us to uphold this verdict.

      I respectfully dissent.




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