Article III, Congress, and the Texarkana Courthouse

When a comment on the Texarkana thread pointed to a story about the Texarkana federal courthouse and a special federal statute that would let cases in the courthouse be heard on either side of the state line, I remembered Brian Kalt's fascinating The Perfect Crime -- the rare law review article that has inspired a mystery novel. Brian Kalt, naturally, had the same thought, but based on actual knowledge of the legal issue, and was kind enough to pass it along:

Your Texarkana post last week caused Ira Matesky to contact me with an interesting constitutional issue that the Texarkana Courthouse presents.

I had been corresponding with Mr. Matesky about my new piece, Tabloid Constitutionalism. The piece is a case study of the near-comic fecklessness of Congress and the courts in dealing with a loophole I identified (in which people can arguably commit crimes with impunity in a small corner of Idaho).

In Tabloid Constitutionalism, I had to respond to people who said that Congress had better things to worry about than my little issue (short answer: fair enough, but they aren't fixing those other things either). The Texarkana story adds a different sort of data point to the field. Here, Congress went out of its way to act, addressing a non-existent problem yet failing to solve it.

As this article explains, the federal courthouse in Texarkana straddles the state line. Part of the building is in the Eastern District of Texas and the Fifth Circuit, while part is in the Western District of Arkansas and the Eighth Circuit. It's a fun little anomaly, and things seem to work pretty well. Here's the problem (emphasis added):

The temptation is to borrow a courtroom from the other district. But does that mean a Texas case could wind up being heard in an Arkansas courtroom?

"It's usually not a problem with civil cases, with the consent of the parties," said [Judge David] Folsom. "But we'd be concerned about the change with criminal cases, or in the rare civil case where the parties might object to their case being heard in another state."

To settle that question, a provision in the Federal Courts Improvement Bill of 2004 would allow the Western District of Arkansas and the Eastern District of Texas to hold court anywhere within the federal courthouse.

Sure enough, Congress enacted the Federal Courts Improvement Act of 2004 (FCIA), § 103 of which declared that cases in Texarkana in either district/state could be heard anywhere in the courthouse. It does not limit itself to civil cases.

The problem is that Article III, § 2, cl. 3 states that federal criminal trials "shall be held in the State where the said Crimes shall have been committed." So if you commit a crime in Texas, you have a constitutional right to have your trial in Texas. Not "Texas or really close to Texas," just "Texas."

So what does the FCIA accomplish in criminal cases? Let's take a hypothetical scenario. Say I get arrested in nearby Atlanta, TX for RICO violations stemming from my unhealthy obsession with local talk-radio station KALT (1610 on your AM dial). The courtrooms on the Texas side of the Texarkana courthouse are unavailable when my trial date rolls around, so they assign me to a courtroom on the Arkansas side, citing the FCIA.

The chances of this being a problem seem pretty slim: I might plead guilty, or I might go to trial but waive my Article III right to be tried in Texas. But if either of those things happened, then the prosecutors would be safe even without the FCIA. I could have pleaded guilty or waived my right just as easily before the Act passed. The FCIA changes nothing in the criminal context.

On the other side, I might object. I have a constitutional right to be tried in Texas, after all, and as the original post made clear to anyone who didn't know it before, Arkansas definitely is not Texas. If I object to the application of the FCIA in my case, what can the prosecutor say? The Act can't amend Article III, after all. There is no question that the trial is on the wrong side of the state line. I'd have a decent argument that the trial and the FCIA are simply unconstitutional.

Maybe I'd lose. Perhaps the prosecutor could argue that this is a de minimis violation; this is literally as near to compliance with Article III as a wrong-state trial can be. But would DOJ really litigate the issue and risk losing a criminal case over this? One would hope that they would play it safe and just switch courtrooms if I objected. But if they do that, then what was the point of the FCIA? And conversely, if DOJ fought the issue and won -- that is, if the court refused to apply Article III so strictly -- wouldn't DOJ have been able to get the same result even without the FCIA? It's hard to imagine a court saying: "This wrong-state trial would ordinarily be unconstitutional. Because Congress encouraged it in this statute, however, it is now OK."

In other words, there was a scheduling problem with criminal trials at the federal courthouse in Texarkana. A solution worked its way through the labyrinthine legislative process; Congress found out about the problem and took decisive action. The solution didn't actually affect the problem at all, but hey, at least it was decisive.

Correct me if I'm wrong, but can't RICO prosecutions happen in any jurisdiction that has some nexus to the conspiracy and where the court has personal jurisdiction over the defendant? Still, if that's true, it also moots the need for FCIA §103...
6.10.2008 2:10pm
GeorgeH (mail):
How about if I allow my trial to go forward in Arkansas?
If I win, I win, but if I lose I ask for a new trial on the grounds of incompetent council not raising my article III right to a Texas trial?
6.10.2008 2:18pm
They should solve this problem using the same blanket waiver that permits them to tape prison phone calls. Put a big sign in the courthouse lobby (you know-where the Ten Commandments used to be), saying "NOTICE TO CRIMINAL DEFENDANTS: The border between Texas and Arkansas runs through this courthouse. Unless you object [time limit here], you will be deemed to have waived any objection under the U.S. Constitution that you are not being tried in the State in which your crime was allegedly committed."
6.10.2008 2:29pm
I wonder whether the failure to try a case in the state in which it was committed is "structural error" that cannot be waived by silence?
6.10.2008 2:34pm
one of many:
Tough row to hoe George, but if in addition to showing that your right to a trial in the state in which the crime took place was violated you can show that it influenced the outcome (a requirement for appeal to be granted) then you deserve to win on appeal. The 3 essentials of an appeal, first a right that was violated, second the violation had an effect on the outcome and third a way to cure the effect(s) of the violation. All 3 parts have to be there, either implied or explicitly - in a case like this the remedy is implied (a new trial in Texas) but the effect has to be explicit.
6.10.2008 2:35pm
The Ace:
The real issue is this a Johnson v. Zerbst "knowing and intelligent" waiver (like jury trial and right to counsel) issue or is this a lesser waiver standard. In other words, does silence waive an objection to being tried in the wrong state? Of course, on a preserved a objection, the USA would move the trial to avoid the appellate headache. But if this is a waiver issue where the issue must be affirmatively acknowledged and waived, then the defendant could presumably waive it for the first time on appeal. That would be a mess.
6.10.2008 2:43pm
John Herbison (mail):
Is venue under Article III, § 2, cl. 3 jurisdictional? If so, I think jeopardy would not attach to trial in a court without jurisdiction, and a trial in the proper venue would not be barred.
6.10.2008 2:43pm
Anthony LeRose, Esq. (mail):
So does the court in Texarkana hear cases from both districts? And if so, in the case of a jury trial, is the jury pool drawn from the district corresponding to the appropriate courtroom (i.e. a Texas jury for courtrooms on the Texas side, Arkansas jury for the Arkansas courtrooms.)

My only concern with this, from a fundamental fairness perspective, would be if say a Texas defendant gets set in the Arkansas courtroom and demands a jury trial, and then gets an Arkansas jury. But so long as the defendant gets a 'jury of his peers' from the proper state, I can't see any real issue.

Of course, why build the darn thing on the state line in the first place??
6.10.2008 2:47pm
George H., you'd lose if the law requires even the slightest showing of prejudice.
6.10.2008 2:51pm
Smokey: anyone who didn't know it before, Arkansas definitely is not Texas.
Heck, it's not even Kansas. [Fun geography game: clicky]

I think Anthony LeRose, Esq. has the common sense answer: move the court room. Can't be any less expensive than the inevitable litigation over the matter.
6.10.2008 3:03pm
one of many:
Is venue under Article III, § 2, cl. 3 jurisdictional?
It appears to be procedural, not jurisdictional. As long as the 5th heard Texas cases and the 8th heard Arkansas cases it should met jurisdiction by being in the appropriate district court with this authorization. Absent this authorization I suspect a claim could be made that a 5th circuit hearing in Arkansas or an 8th in Texas would not be valid because neither is authorized to hold hearings outside the boundries their district (actually not sure if there is a federal requirement that circuit court hearings must be held in the district but I recall coming across such a rule long ago, not sure if it was federal or not though).
6.10.2008 3:06pm
Mike& (mail):
Here is what cracks me up. Everyone sees there is actually a technical legal argument. It's a good one. It's one based on the text of the Constitution. It's one that should win.

Yet everyone also realizes that our court system would absolutely ignore the legal issue. There's no way it would prevail. No way.

And there are people who still say that our courts are not pro-prosecution. What's up with that?
6.10.2008 3:19pm
one of many:
No one is saying the courts would ignore the legal issue, the point is that while there is a legal issue, there is not practical issue. What practical difference does it make to hold an otherwise identical hearing 100 feet away from where the legal (under Art II) hearing? If there is a practical difference, then present it, if you can find one then I would like to know what it is.
6.10.2008 3:30pm
mls (www):
Hey, this is nothing. These people are going to give the District of Columbia a vote in the House of Representatives because DC is sort of like a state. Only not.
6.10.2008 3:40pm
Lumen Mulligan (mail):
First, love both of Kalt's articles on these issues. I think the comment on structural error comes close to the mark. Let's say that the district judges there all agreed to always overrule an objection based on the the in-state trial provision. Even under the Chapman harmless error standard, it is highly unlikely that such errors would ever be reversible.

For another fun exercise in harmless error, check out 28 usc 455(a)" Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." So this provision, unlike 455(b), does not require actual bias just that impartiality might be reasonably questioned. Assume a litigant moves to disqualify a judge under 455(a) and the motion is declined. Further assume, that the judge was not in fact biased but that the judge's impartiality could be reasonably questioned. Could this be reversed on appeal? Likely not under the harmless error doctrine (assuming this is not structural error). The litigant suffered no actual harm. But then why have a statutory provision.
6.10.2008 3:51pm
corneille1640 (mail):
I apologize for going slightly off topic, but this situation brings up a question that I, being a non-lawyer, have often puzzled over: why may a defendant waive his "right" to be tried in the same state? Article III says "shall," and not "shall unless the defendant agrees otherwise." I ask this question both because of the (to me apparent) incongruity between what is written in article III and what is allowed, and because I wonder if that provision was meant not only to protect the person prosecuted, but to protect the state's sovereignty, in order to avoid the specter of the government allowing federal crimes to be tried in front of more sympathetic juries elsewhere.

(Sorry about the run-on sentence.)
6.10.2008 3:52pm

Yet everyone also realizes that our court system would absolutely ignore the legal issue. There's no way it would prevail. No way.

Add me to the list of people not included in "everyone."
6.10.2008 3:56pm

I think everyone agrees that if the defendant argues that he should be tried in a different courtroom to comply with the Constitution, that argument will win and the defendant will get a trial in a different courtroom. What is fun about the problem is whether the argument can ever result in someone getting away with a crime that they did in fact commit on this "technicality." The fact that a particular technical requirement is not likely to result in letting criminals go free is hardly pro-prosecution, unless you mean pro-prosecution of the guilty, which I suppose Courts are.
6.10.2008 4:07pm
In Kalt's hypothetical, the Texas courtroom is unavailable at the time the trial is scheduled. Suppose that day happens to be the 70th day after the triggering event under 18 U.S.C. § 3161(c). If the defendant objects as Kalt proposes and the Texas courtroom cannot be made available that day, might the FCIA present some justification for not dismissing the indictment under § 3161(h)(8), § 3161(h)(8)(C) notwithstanding?
6.10.2008 4:09pm
Considering that the SCOTUS has been willing to distinguish between elements of the 6A that are "indispensable" and ones that are not (see Maryland v. Craig), I can imagine that, if presented with the issue, they will not see a 6A violation.
6.10.2008 4:24pm
Tony Tutins (mail):
If the court starts finding its spare courtroom is always in the wrong state, the court should go to the makers of mobile classrooms and order a mobile courtroom that can be dragged back and forth between states as needed.
6.10.2008 4:36pm
Maybe the court can get some mileage out of the "Guantanamo Bay is in the United States" argument.
6.10.2008 4:47pm
Burt Likko (mail) (www):
Vicinage is not venue, but both unquestionably contain the entire district within their scope. E.D. Tex. has multiple venues across the state. For Kalt's hypothetical to work, there would not only not have to be no courtroom available on the Texas side of the Texarkana courthouse, but there would have to be no courtroom available anywhere in E.D. Tex. The Government could move for a transfer of venue to an available courtroom elsewhere in the District, or the Court could make such an order <i>sua sponte</i>, and the defendant might object on <i>forum non conveniens</i> grounds (or its criminal equivalent, if such a thing exists). But I think <i>forum non conveniens</i> loses here because the defendant could waive his right to a trial within 70 days if the forum is that important to him. He might want a trial in Texarkana, but if there's a courtroom in Beaumont, those jurors are just as much his "peers" for constitutional purposes as the jurors from (the Texas side of) Texarkana, and the courtroom is just as much in the district he's insisting on. The inconvenience of counsel travelling from Texarkana to Beaumont is not as important as giving the defendant the constitutional rights he's insisting on exercising.
6.10.2008 5:07pm
Adam B. (www):
Frozen donkey wheel! Move the courthouse!
6.10.2008 5:23pm
Brian Kalt (mail):
I'll confess error here, in light of Burt Likko's comment. If I committed a crime in Atlanta, Texas, I'd be tried in the Marshall Division of the E.D. Tex., not the nearer Texarkana Division (or the Beaumont one). But given that there really is a radio station KALT in Atlanta, I just couldn't resist committing my offense there.

And while I'm here, to respond to corneille1640's point, I think that the personal, waivable right is probably all that's left after Patton v. United States, unfortunately.

Finally, to Mike&and mls, I say, yup, that is pretty amazing, isn't it? My frustration with that very point is the subject of my Tabloid Constitutionalism piece.
6.10.2008 5:43pm
Anderson (mail):
I would enjoy reading Justice Scalia's opinion for the Court, affirming the conviction despite the defendant's being tried in the wrong state.
6.10.2008 6:28pm
Sean M:
Venue is so important it appears in the Constitution twice: Article III, Section 2 /and/ the Sixth Amendment (which adds the right to be tried not just in the State where the crime occurred, but the district). That has to count for something.
6.10.2008 6:42pm
Prosecutorial Indiscretion:
Frozen donkey wheel! Move the courthouse!

Best comment ever.
6.10.2008 6:48pm
HLSbertarian (mail):

I would enjoy reading Justice Scalia's opinion for the Court, affirming the conviction despite the defendant's being tried in the wrong state.

Wow, you should really read Craig.
6.10.2008 8:08pm
Wow, you should really read Craig.
Seconded. Scalia did not like that one.
6.10.2008 9:24pm
David M. Nieporent (www):
I would enjoy reading Justice Scalia's opinion for the Court, affirming the conviction despite the defendant's being tried in the wrong state.
Anderson, if there's one thing Scalia is a stickler for, it's the actual language of the Constitution. I don't see why you think he would affirm here. He's not a big fan of either the exclusionary rule (despite Kyllo) or Miranda, and so he has a rep. as being unfriendly to criminal defendants, but (as HLS points out) look at Maryland v. Craig, not to mention the entire Apprendi line of cases, or U.S. v. Gonzalez-Lopez.
6.10.2008 9:45pm
r.friedman (mail):
It's definitely structural error, it was a mistake to build the courthouse there.

How about a law that allows the Clerk to declare from time to time where within the building the state line falls? Then it could be adjusted as need be.
6.11.2008 8:27am
one of many:
How about a law that allows the Clerk to declare from time to time where within the building the state line falls? Then it could be adjusted as need be. Hmm, no it wouldn't work. Aside from the constitutional question of whether state boundries can be delegated to a clerk, what if the reason the southern(? never been to Texarkana so I have no idea of the orientation of the courthouse, Texas?) courtrooms cannot be used by the 5th requiring it to move to the northern (? Arkansas) courtrooms is because the 8th is using them? Simply moving the boundry would solve the problem for the 5th, but then whatever the 8th was using the courtrooms for would be in Texas.
6.11.2008 3:04pm
bjr03 (mail):
And you wonder about FRE 201, which allows judicial notice of facts that are common knowledge in the court's territorial jurisdiction.
6.11.2008 3:35pm
How about a law that allows the Clerk to declare from time to time where within the building the state line falls? Then it could be adjusted as need be.
I would think Art IV would, at the minimum, require the state legislatures to ratify such an arrangement, no?
6.11.2008 7:02pm
Stephen Sather (mail):
The cross-boundary courthouse was recently used in the resolution of a discovery dispute between Texas and Arkansas parties in an opinion by Senior District Judge James Nowlin. In Waggoner vs. Walmart Stores, Case No. A-07-CA-703-JRN (W.D. Tex. 6/3/08), Judge Nowlin wrote:

Before the Court in the above-entitled and styled cause of action is Defendant Wal-Mart Stores, LLC's Opposed Motion for a Protective Order, filed May 29, 2008. Apparently the parties are unable to agree if the deposition of Wal-Mart's corporate representative should occur in San Antonio, Texas or in Bentonville, Arkansas.

The Court is sympathetic with Defendant's argument. Surely Defendant's corporate representative, a resident of Arkansas, would feel great humiliation by being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.

On the other hand, the Court is sympathetic with Plaintiff's position. Plaintiffs might enter Arkansas with a bit of trepidation as many residents of Arkansas are still seeking retribution for the "Game of the Century" in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship.

Because the Court is sympathetic to both parties positions, it has found a neutral site, intended to avoid both humiliation and trepidation of retribution.

ACCORDINGLY, IT IS ORDERED THAT unless the parties agree otherwise, the deposition of Defendant's corporate representative shall occur at 9AM on June 11, 2008 on the steps of the Texarkana Federal Building, 500 State Line Avenue, TX/AR 71854.

IT IS FURTHER ORDERED THAT each party is to remain on his or her respective side of the state line.

6.11.2008 7:45pm
one of many:
Bravo M. Sather, bravo. Now I have to clean the coffee of of my keyboard. Well done.
6.12.2008 12:00am