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If a Body Falls in a Federal Forest . . .

Do federal courts have general jurisdiction over murder and other crimes that occur within National Forests? Not being much of a crimlaw guy, I would have assumed the answer was "yes." In United States v. Gabrion, a divided panel of the U.S. Court of Appeals for the Sixth Circuit confirms my intuition, holding that a murder on federal property in a national forest did occur within federal territorial jurisdiction, but also shows this is a more complicated question than I would have assumed. The three judge panel produced three opinions. Judge Batchelder delivered the opinion of the court, Judge Moore concurred in the judgment, and Judge Merritt dissented.

UPDATE: How Appealing has more here.

Allen G.:
So... is it or is it not a perfect crime if you murder someone in the Idaho portion of Yellowstone Park, in light of the 6th amendment?
3.14.2008 10:54am
PatHMV (mail) (www):
There is a delightful series of mostly short stories, written I think in the 20s or 30s, about an amazing lawyer named Ephraim Tutt. I stumbled across them in law school, wandering the stacks of the library late one night.

In one of his stories, he defends a man for murder committed on the grounds of an old army fort, long since returned to the control of the state. When the man was charged in state court, Tutt made a persuasive argument that for various technical reasons the fort was still technically federal soil, and thus the federal government was the only sovereign which could prosecute the man. Naturally, the local U.S. Attorney, following the dismissal of the charges by the state, brought charges in federal court. Whereupon, of course, Tutt promptly made an impassioned and compelling argument that the state court had erred in its ruling, and that only the state had jurisdiction over the territory within the defrocked army base.

As jeopardy had attached in both instances, the man was then released.
3.14.2008 11:18am
Former Clerk:
At the US Attorney's Office, we prosecute murder on military bases (usually when there is an agreement), drug running in National Forests (I've got a couple of those cases) and child abuse/murder on Native American lands.

It generally depends on the agreement we've got with local authorities as well...but I'm surprised that the 6th Circuit came out this way.
3.14.2008 11:19am
Westie:
Allen G.,
I read that article; it's quite intriguing.
3.14.2008 11:25am
Erick R (mail):
The real issue here is whether the defendant gets the death penalty. Michigan has no death penalty (except for treason).
3.14.2008 11:32am
Bored Lawyer:
PatHMV: Nowadays, such self-contradictory arguments would not be allowed under the doctrine of Judicial Estoppel.
3.14.2008 11:47am
John (mail):
Bored--I don't think estoppel applies to subject matter jurisdiction, which is what this sounds like; a litigant, by estoppel or otherwise, cannot confer jurisdiction where the court doesn't have it.
3.14.2008 11:57am
CrimsonTribe:
Sorry, corporate type here, so I have vague memories of crim pro. Wouldn't jurisdiction be something that would have to be raised prior to trial? I mean, I can understand that both arguments could succeed, but since jeopardy doesn't attach until the actual trial, how would it be an issue? Can a defence attorney raise subject matter jurisdiction in the middle of a criminal trial?
3.14.2008 12:14pm
David M. Nieporent (www):
Sorry, corporate type here, so I have vague memories of crim pro. Wouldn't jurisdiction be something that would have to be raised prior to trial? I mean, I can understand that both arguments could succeed, but since jeopardy doesn't attach until the actual trial, how would it be an issue? Can a defence attorney raise subject matter jurisdiction in the middle of a criminal trial?
Corporate type, that isn't even a criminal issue. Think back to civ pro 101, day 1 of law school: subject matter jurisdiction is the one unwaivable issue. It can be raised at any time, at any stage of the proceedings, by any party, or by the court sua sponte.
3.14.2008 12:22pm
PaulK (mail):
Interesting -- I never would have imagined that Congress had directly criminalized homicide in a national forest. My first thought was to invoke the Federal Assimilative Crimes Act, which would invoke the state law surrounding the enclave. I have a bit of difficulty seeing how just straight up federal jurisdiction applies, however, or why Congress would need to try and exercise it given the FACA.
3.14.2008 12:26pm
CrimsonTribe:
Thanks. I guess I better never move, or at least find a state with reciprocity, because after forgetting that, I can't see how I could ever pass another bar exam :)
3.14.2008 12:29pm
Dennis Nicholls (mail):

it or is it not a perfect crime if you murder someone in the Idaho portion of Yellowstone Park

Living in Idaho, let me assure you that's a hard place in which to murder someone, unless of course you kidnap someone first in "regular" Idaho and drag them there. There are no towns in that sliver of Yellowstone: neither are there paved roads. You have to go through the small town of Warm River and go up Fish Creek Road until it connects with several unpaved roads that enter the park.
3.14.2008 12:55pm
Joe Kowalski (mail):
This non-legal observer would think that Federal jurisdiction would vary depending on the type of federal property in question. National Forest or BLM lands aren't quite the same as military bases or national parks. An elk poacher killing elk in a national forest would be subject to state game management laws, but the same poacher killing elk in a national park would fall under the federal laws governing the parks. Am I way off base?
3.14.2008 12:55pm
KeithK (mail):
Why does this need to be a federal crime? Federal forest or not it occurred within a state. So why not just prosecute the crime in Michigan state court? Whether or not the panel ruled the right way as a legal matter I think the end result is wrong.
3.14.2008 1:39pm
Bill Poser (mail) (www):
I would that that at present the place for the perfect crime would be Guantanamo Bay. It certainly isn't part of any state or territory, the federal government claims that it isn't part of the United States and that the Constitution doesn't apply, and the chances of being subjected to Cuban law are nil.
3.14.2008 1:47pm
David M. Nieporent (www):
Bill, I don't think anybody denies that Guantanamo is a military base. The federal government claims that it doesn't have sovereignty there, not that it doesn'thave jurisdiction there.
3.14.2008 1:54pm
sjalterego (mail):
Somebody should check out the C.J.Box novel Free Fire which was inspired by an essay in the Georgetown Law Journal, VOLUME 93, NUMBER 2 (JANUARY 2005) The Perfect Crime, by Brian C. Kalt. The premise is that the Act of Congress which created Yellowstone National Park, created a small sliver of land without Vicinage and thus no Federal Court could exercise jurisdiction over crimes committed in that location and since it was on National Park land, there was not state jurisdiction either.
3.14.2008 2:25pm
wisconsindoug (mail):
Shortly after this trial, Judge Bell, came and spoke to our little county bar group. He stated that at the penalty phase, the defendant taunted the jury into giving him the death penalty. The jury did not have a problem with giving it to him. And yes, jurisdiction was raised on whether the federal gov't should be able to prosecute him. As I recall, much was made of the fact the body was found off shore of the National Forest in a small lake and whether that was in the forest and whether the Congress had decided to bring the forest under federal law. Very interesting because this was the first death penalty case in Michigan. The judge commented on the fact that the court had to bring an attorney from Ohio who had done death penalty cases there to assist in this case.
3.14.2008 2:26pm
sjalterego (mail):
A better explanation of my above post:

Professor Kalt's article uncovered Yellowstone National Park's "Zone of Death," a 50-square-mile strip of land in the remote Idaho portion of the park that contains a potentially deadly loophole. The area sits in one state, but in the district of another, so the Sixth Amendment requires that any crime committed there must be tried before a jury drawn from that strip of land -- but nobody lives there.

My solution would be for the prosecution to allow a group of 200 law and order types to temporarily take up residence in the strip of land and you have an instant jury pool.
3.14.2008 2:32pm
Cornellian (mail):
Why does this need to be a federal crime? Federal forest or not it occurred within a state. So why not just prosecute the crime in Michigan state court?

A perfectly logical question that could easily apply to about 98% of federal criminal law. We got through most of U.S. history without having two parallel criminal law systems and we don't need one now.
3.14.2008 2:37pm
Aaron:
Because Michigan has no death penalty, and the gov't needs its snuff fix.

Mike from C&F notes all the time, that where there is an ambiguity in a criminal case, the court will bend over backwards to affirm a conviction. This opinion is a perfect example. The simplicity and common-sense of the dissent is dwarfed, in column-inches, by the mental gymnastics needed to reason that in the absence of positive efforts by Congress to confirm subject matter jurisdiction in a criminal case, nevertheless it somehow exists here.
3.14.2008 3:37pm
KeithK (mail):

A perfectly logical question that could easily apply to about 98% of federal criminal law. We got through most of U.S. history without having two parallel criminal law systems and we don't need one now.


Amen. Go Big Red.
3.14.2008 3:41pm
unhyphenatedconservative (mail):
Without Federal Jurisdiction on forest land, Booth and Bones get to travel less.
3.14.2008 4:02pm
kelvin mccabe:
Right on Cornellian -

And to make the further point regarding separate "jurisdictions" and this interesting case-

Assuming the federal government can try someone for the same activity after a conviction in state court (separate sovereigns and all that) or vice versa - why does it matter whether he is prosecuted in federal court first or state court? If one or the other loses "jurisdiction" just move it to the other. Jeapordy attaching means dittley when no double jeapoardy argument can be successful.

The only possible thing in the way is statute of limitations - which is not applicable in murder cases anyway - but even if it were drug possession or something with a shorter limitation - the ct would likely say the limitations period was tolled while the def. sat around waiting for the first jurisdiction to try him. Etc Etc

And i have yet to hear solid reasoning behind the rule that convicting someone of murder or any other standard crime in state court and trying and convicting the defendant in fed ct for the same acts and crime is NOT being punished twice for the same act or being twice put in jeopardy.

Sorry for the rant - this particular subject irks me.
3.14.2008 4:24pm
Dave N (mail):
Keith McCabe,

I certainly undertand your passion, but the reason that a person can be tried for the same offense in both state and federal courts (or in two state courts, for that matter) is that in our system each state and the federal government are all separate sovereigns--thus by killing someone in a national forest, you are offending the sovereign power of the United States as well as the sovereign power of the State of Michigan--which are quite separate.

To put it another way, if I conspire to kill someone in State A, kidnap that person in State A, and then take him or her to State B and kill that person there, why are not both State A and State B legitimately offended by my conduct and free to prosecute me for breaking their respective laws?
3.14.2008 4:47pm
Fub:
PatHMV wrote at 3.14.2008 10:18am:
There is a delightful series of mostly short stories, written I think in the 20s or 30s, about an amazing lawyer named Ephraim Tutt. I stumbled across them in law school, wandering the stacks of the library late one night.
Amazing fictional lawyer indeed! According to this old Time article Ephriam Tutt wrote his own autobiography, contradicting and correcting some things his author Arthur Train had published in his original tales.
3.14.2008 5:29pm
Cornellian (mail):
I certainly undertand your passion, but the reason that a person can be tried for the same offense in both state and federal courts (or in two state courts, for that matter) is that in our system each state and the federal government are all separate sovereigns--thus by killing someone in a national forest, you are offending the sovereign power of the United States as well as the sovereign power of the State of Michigan--which are quite separate.

I share the earlier poster's concern. I don't doubt as a matter of law that double jeopardy doesn't prevent you from being prosecuted by the feds even after you're acquitted of the state offense, even where the state and federal offenses are substantially identical. Double jeopardy operates on a per sovereign basis. Nevertheless, there is something to me quite unseemly about a person tried and acquitted in state court for a state offense in a high profile case being subsequently prosecuted by the feds for the identical misconduct, often characterizing that identical misconduct as a violation of the civil rights of the victim in the state case. It's essentially a judicial do-over because the public (or their elected federal politicians) didn't like the result the first time around.

So we can link this to the other current thread on amending the constitution - I'll suggest we ought to amend the double jeopardy clause to provide some kind of protection to defendants in this kind of federal do-over situation. No, I can't come up with wording off the top of my head to type into this comment, but I think it's something that warrants attention.
3.14.2008 5:43pm
Malvolio:
I don't think estoppel applies to subject matter jurisdiction, which is what this sounds like; a litigant, by estoppel or otherwise, cannot confer jurisdiction where the court doesn't have it.
Wouldn't equitable estoppel prevent the defendant from contesting subject-matter jurisdiction?

Yes, if some third-party (who in some fashion had standing) contested the Federal jurisdiction, the fact that defendant had argued for it would be irrelevant.
3.14.2008 9:17pm
Cornellian (mail):
Wouldn't equitable estoppel prevent the defendant from contesting subject-matter jurisdiction?

Yes, if some third-party (who in some fashion had standing) contested the Federal jurisdiction, the fact that defendant had argued for it would be irrelevant.


Heck, the federal court can raise subject matter sua sponte and boot the case on that basis, regardless of what the parties want to argue. I seem to recall a recent 7th Circuit case where Easterbrook raised the issue, even though neither party had done so, then slapped counsel around for suggesting that the court just go ahead and decide the case anyway as long as everyone was there.

I believe it was a situation of some corporate document indicating the state of incorporation and everyone just accepted that, not realizing it had changed, and the new state of incorporation killed diversity or something like that. No one realized it until very late in the game. Definitely one of those "oops" moments every lawyer dreads.
3.14.2008 9:46pm
Bill Poser (mail) (www):
David,


The federal government claims that it doesn't have sovereignty there, not that it doesn't have jurisdiction there.


Sure, but jurisdiction without sovereignty is a problematic notion. There is, furthermore, the problem that the authority of the federal government to do anything flows from the Constitution. Nothing that the federal government does can be outside the scope of the Constitution.
3.15.2008 7:43am