Is there something to the idea explained on the page linked above?

It says portions of Yellowstone National Park are in Idaho, Montana, and Wyoming, but Congress placed the entire park in Wyoming's federal judicial district. And then it says:

Article III of the Constitution requires federal criminal trials to be held in the state in which the crime was committed. And the Sixth Amendment entitles a federal criminal defendant to a trial by jurors living in the state and district where the crime was committed. But if someone committed a crime in the uninhabited Idaho portion of Yellowstone, Kalt surmised, it would be impossible to form a jury. And being federal land, the state would have no jurisdiction.

The part about the state having no jurisdiction is something I wouldn't have guessed. It is, after all, within a state, and murder trials are usually not held in federal courts.


Article III, Section 2 of The Constitution requires that

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed

Since the Idaho portion of Yellowstone is part of the state of Idaho and is not part of a non-state, ergo the trial shall be held in Idaho, according to The Constitution.

One jurisdictional statute, 16 USC 24, says

The Yellowstone National Park, as its boundaries now are defined, or as they may be hereafter defined or extended, shall be under the sole and exclusive jurisdiction of the United States. All the laws applicable to places under the sole and exclusive jurisdiction of the United States, shall have force and effect in said park. Nothing in this Act shall be construed to forbid the service in the park of any civil or criminal process of any court having jurisdiction in the States of Idaho, Montana, and Wyoming. All fugitives from justice taking refuge in said park shall be subject to the same laws as refugees from justice found in the State of Wyoming.

So the crime would be a federal matter. I put emphasis on a sentence that doesn't have a straightforward interpretation. There is another jurisdictional statute 28 USC 131, the problematic one, which states:

Wyoming and those portions of Yellowstone National Park situated in Montana and Idaho constitute one judicial district.

Court shall be held at Casper, Cheyenne, Evanston, Lander, Jackson, and Sheridan.

Therefore, the crime must be tried in Wyoming. Moreover, the judicial district of Wyoming also includes that unoccupied portion of the park in Idaho. This statute conflicts with Article III, Section 2, which requires court to be held in Idaho. Since The Constitution has precedence over federal statutes, the instruction to hold court in Wyoming is unconstitutional.

The 6th Amendment does not pose a particular problem, with its requirement that

the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law

since the jury could be of Idahoans, and transported to Wyoming – the 6th addresses the nature of the jury, not the location of the trial.

It is an open question what the 6th Amendment refers to in talking of "state and district", since district is not defined at a constitutional level. The only district with constitutional stature is the District of Columbia, which is not a state, and therefore there could be no "state and district" if we mean "district, as specifically mentioned in The Constitution". The Judiciciary Act of 1789 first created federal judiciary districts, signed by Washington on September 24, 1789, and the 6th Amendment was passed by Congress the next day. It is reasonable to assume that this is what they meant by "district".

28 USC 131 does say that all of Wyoming plus a sliver of Idaho are a judicial district, so one could have a jury composed of citizens of Wyoming which satisfies the "jury of the district" requirement, but that would not satisfy the "jury of the state" requirement. If anyone lived in that area, those people could constitute a "jury of the state and district", but you would still have a clash between the statutory and constitutional requirements for venue.

  • Do you have an opinion of the constitutionality of the part that forbids the state of Idaho to exercise jurisdiction in a part of that state? – Michael Hardy Aug 14 '16 at 0:29
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    While this is an interesting theoretical exercise, an actual attempt to say "this alleged crime committed in the Montana part of Yellowstone must have a Montana jury panel" was shot down by the district court in US v. Belderrain. – cpast Aug 14 '16 at 1:22
  • The closest thing to direct constitutional sanction is Art. 1 Sec. 8 cl. 17, and that misses the target. I do not know of a jurisdictional reservation related to admission of these states into the Union. Since the park predates the states, it would be relevant to see what the park act said. – user6726 Aug 14 '16 at 1:30
  • @cpast, I don't see that. Is this United States v. Belderrain, No. 08-8016? There was no jury trial there: he pleaded guilty. – user6726 Aug 14 '16 at 2:00
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    @user6726 It wasn't published, because (I assume) it wasn't appealed. It's on PACER, though; while it doesn't set a formal precedent, it does show that courts are unlikely to have much patience for the argument. – cpast Aug 14 '16 at 2:06

I'd like to add a few points.

There are several important limitations to the loophole. First, the crime would have to be committed entirely within the Zone; if it weren't, the prosecutors could charge it somewhere less problematic.

Second, there is the possibility of charges that don't carry a right to a jury trial (Class B misdemeanors or below).

Third and most importantly, there is the possibility that the court might interpret the 6th Amendment some way other than literally here. A purposive interpretation, for instance, could lead the court to say that the interests of the 6th Amendment are not disserved by having a Wyoming jury try this case. I disagree with that argument, but that doesn't mean a court might not use it.

As for the Belderrain case mentioned in the comments, I think it is worth noting that part of the defendant's plea was that he not appeal this issue to the 10th Circuit. The deal allowed him to appeal every other issue (which is what led to the appeal you might see on Westlaw), but not this one. I am hesitant to classify this result as the loophole being closed. Indeed, since the prosecutor telegraphed that he didn't want to let the 10th Circuit get a hold of the issue, it seems to me to suggest that the loophole is still open just as widely as it was before, minus a realpolitik consideration that pushing it carries the risk of not getting a very good plea deal if you lose.

  • ok, So I've read that in one informal usage, "to telegraph" means to take pains to leave no doubt conceivable about what one is saying. Is that the meaning you intended? – Michael Hardy Sep 10 '17 at 1:16
  • I meant it in the sense of "communicated" or "signaled," with no particular meaning as to the amount of doubt left. He also communicated, "Try this and you'll run up against a trial judge who will not consider your argument,* and a prosecutor who will be concerned only with convicting you and getting a serious sentence." The judge's argument was basically, "Well, I can't just let you go." That was inaccurate re both Article III (venue needed to be in Montana, which was doable) and possibly the 6th Amendment (since the Montana portion does have some residents). – Brian Kalt Sep 10 '17 at 11:42
  • Are you the author of the paper on Presidential self-pardons whose law school note and book I just cited in another answer at this site? – ohwilleke Sep 11 '17 at 22:54
  • Yep. That's me. – Brian Kalt Sep 12 '17 at 10:34

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