On today’s podcast, David and Sarah discuss a host of thorny legal issues starting with an indictment against a lawyer who lied to the FBI when he alleged communications between the Trump Organization and a Russian bank. They then dig into a Second Amendment amici brief, a defamation case, and the issue of misleading headlines. Listen to the end to hear Sarah explain how to get away with murder (or somewhat less sensationally, how to get away with interstate mail fraud).
SHOW NOTES
Indictment:
Second Amendment Amici brief regarding New York gun laws
Rep. Devin Nunes' suit against Ryan Lizza and Hearst Magazine Media
The Writer of This Article Also Wrote This Headline and That’s Rare
“The Perfect Crime,” Georgetown Law Review article by Brian C. Kalt
Further resources:
16 U.S. Code § 24:
"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."
Link: https://www.law.cornell.edu/uscode/text/16/24
From a USA Today "Fact Check" published on March 31, 2021, which references and quotes Prof. Kalt and his paper:
===begin quote===
No crimes in the "zone of death" have ever been prosecuted; however, one case, explained in "The Experiment" podcast, suggests a judge might not allow a suspected murderer or other criminal defendant to go free because of the unique jurisdictional and geographic situation at Yellowstone.
In December 2005, Mike Belderrain illegally shot an elk in the small slice of Yellowstone that is in Montana. Belderrain's defense, apparently inspired by Kalt's theory, argued that the case could not be pursued unless he were given a trial with a jury drawn from the Montana residents of the park. There are enough residents that this would technically be possible, but it would be very difficult.
The judge denied his request for such a jury, however, stating that any crime committed in Yellowstone should be tried in the state of Wyoming, with a jury chosen from Wyoming residents.
Notwithstanding Kalt's theory, the judge's ruling suggests that a jury trial in a prosecution for a crime committed in the "zone of death" would be held in the District of Wyoming.
In the end, though, Belderrain took a plea deal: on the condition that he would not appeal the case based on the loophole, he received a sentence of four years rather than the seven-year sentence he would likely have received in a trial by jury.
===end quote===
link: https://www.usatoday.com/story/news/factcheck/2021/03/31/fact-check-yellowstones-death-zone-may-not-free-conviction/6956880002/
So what is the fact pattern for interstate mail fraud which would NOT also be a crime under state criminal fraud laws? The former generally requires everything that the latter does, PLUS an additional element, i.e., that it took place in interstate commerce. You're going to have the same problem with federal criminal securities laws violations, I suspect.
I think you need to keep looking for a federal crime that could be "perfect" for this hypothetical. How about — also discussed in this show! — 18 U.S.C. § 1001 false statements "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States"?