When the federal government decided to prosecute mountain runner Michelino Sunseri for using an unauthorized trail while setting a record for ascending and descending Grand Teton in September 2024, it seemed like a good example of a problem that President Donald Trump decried in an executive order last month: “overcriminalization in federal regulations.” The National Park Service (NPS) ultimately agreed, saying it was “withdrawing its criminal prosecution referral” after “further review” in light of the president’s order. But the Justice Department proceeded with the case anyway, resulting in a two-day bench trial that ended on May 21.
That disagreement, revealed in an email chain that Sunseri’s lawyers obtained through a Freedom of Information Act request, raises questions about whether prosecutors met their constitutional obligation to share information that would have been helpful to the defense. It also casts doubt on whether the Justice Department is complying with the policy described in Trump’s order, which said federal prosecutors should eschew charges involving regulatory crimes unless they have evidence indicating that the defendant knowingly violated the law.
That point always seemed doubtful in Sunseri’s case. For one thing, he publicized his route up and down Grand Teton with a map that he posted on social media. According to the NPS and the Justice Department, that map showed Sunseri had committed a federal misdemeanor punishable by up to six months in jail. And as WyoFile reporter Katie Klingsporn noted during Sunseri’s trial before U.S. Magistrate Judge Stephanie Hambrick in Jackson, Wyoming, the route that the NPS said he should not have taken, known as the “old climber’s trail,” is “a historic trail so well-used that it’s become a skinny singletrack.”
In fact, Cato Institute legal fellow Mike Fox noted in March, “record holders before Sunseri had used the same trail, and tour guides who charge hefty sums frequently lead hikers up the same route. Only two tiny and ambiguous signs inform the public that the trail is off-limits.”
One of those signs, at the top of the trail, said “shortcutting causes erosion.” The other sign, at the bottom of the trail, said “closed for regrowth.” Ed Bushnell, Sunseri’s defense attorney, argued that his client was not “shortcutting,” since he was using a long-established trail. Bushnell added that it was unclear whether the “closed” notice referred to the area around the sign or the trail beyond it. “There is no clear prohibition there,” Bushnell said. “This is not conspicuous signage.”
Given the evidence that Sunseri did not deliberately violate park rules, the criminal referral was puzzling and controversial. As is typical with regulatory crimes, his prosecution was based on the interaction between the Code of Federal Regulations—a body of law so vast and obscure that even experts can only guess at the number of criminal penalties it authorizes (at least 300,000, they think)—and a more general statute enacted by Congress.
Sunseri was charged with violating 36 CFR 21(b), which says a park superintendent “may restrict hiking or pedestrian use to a designated trail or walkway system.” It adds that “leaving a trail or walkway to shortcut between portions of the same trail or walkway, or to shortcut to an adjacent trail or walkway in violation of designated restrictions is prohibited.”
The regulation says nothing about criminal penalties, which are separately authorized by 16 USC 551. That law says violations of “rules and regulations” governing the use of public and national forests “shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both.”
By authorizing prosecution for agency-defined offenses, Congress has created a bewildering situation in which the average American cannot reasonably be expected to know when he is committing a federal crime. “This status quo is absurd and unjust,” Trump said in his executive order, which he issued on May 9. “It allows the executive branch to write the law, in addition to executing it.”
In addition to urging prosecutorial restraint, Trump instructed federal agencies to “explicitly describe” conduct subject to criminal punishment under new regulations and prepare lists of regulatory violations that already can be treated as crimes. He also told them to publish plans to “address criminally liable regulatory offenses.” In deciding whether to make a criminal referral, he said, agencies should consider factors such as “the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense”; “the potential gain to the putative defendant that could result from the offense”; and “evidence, if any is available, of the putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue.”
The Interior Department, which includes the NPS, got the message. A week later, Damon Hagan, a deputy solicitor at the department, emailed Assistant U.S. Attorney Ariel Calmes, noting his office’s “review of our regulations for compliance” with Trump’s order. Hagan added that he “look[ed] forward to further discussions with your supervisors and yourself regarding the Michelino Sunseri matter.” Hagan also emailed Adam Gustafson, acting assistant attorney general for the Justice Department’s Environment and Natural Resources Division, noting his office’s interest in reconsidering the Sunseri case.
Three days later, on May 19, Hagan emailed Nicole Romine, chief of the criminal division at the U.S. Attorney’s Office for the District of Wyoming, passing along a message “for your situational awareness” from Frank Lands, deputy director for operations at the NPS. “After further review,” Lands said, “the National Park Service is withdrawing its criminal prosecution referral in the Michelino Sunseri matter.” He noted that the prosecution’s most recent plea deal proposal entailed a fine and a five-year ban from Grand Teton National Park. Because “we believe” that represents “an overcriminalization based on the gravity of the offense,” he said, “we withdraw our support.”
Romine was unfazed. “Thank you,” she wrote back to Hagan that evening. “We’re continuing with the prosecution.” Sunseri’s trial began the next day.
Although Romine and Calmes “had access to this email [from Lands] before trial,” Bushnell and co-counsel Alexander Rienzie say in a motion they filed with Hambrick on Wednesday, they “decided not to disclose it to the defense, despite its clear relevance to DOJ authorization, defense strategy and witness impeachment.” That failure, Bushnell and Rienzie argue, ran afoul of the prosecution’s obligations under Brady v. Maryland, the 1963 case in which the Supreme Court held that criminal defendants have a due process right to see evidence “material” to their guilt or punishment.
In the 1995 case Kyles v. Whitley, the lawyers note, the Supreme Court clarified that “a
showing of materiality does not require demonstration by a preponderance [of the evidence] that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Rather, it is enough that the suppression “undermines confidence in the outcome of the trial,” which suggests a “reasonable probability” that the evidence might have changed the result.
If they had known about the Lands email before Sunseri’s trial, Bushnell and Rienzie suggest, they would have called additional witnesses, including NPS Public Affairs Officer Emily Davis. They say they also would have “expand[ed] trial strategy to challenge the institutional legitimacy of the prosecution” and “explore[d] additional selective/vindictive prosecution theories on cross-examination.” Those missed opportunities, they say, “collectively undermin[ed] the fundamental fairness of Mr. Sunseri’s trial.”
Bushnell and Rienzie are asking Hambrick, who has not yet delivered a verdict, to admit the email chain as evidence. They are also seeking an evidentiary hearing to address several issues raised by those messages, including a possible Brady violation and “the integrity and authorization of the prosecution itself, in light of the initiating agency withdrawing support.” They are curious about “the decision-making process that led DOJ to continue prosecution without agency support” and “the motivation to continue pursuing disproportionate plea terms after NPS withdrawal.”
Connor Burkesmith, a photographer who documented Sunseri’s Grand Teton feat and is working on a film about it, thinks that decision was plainly unfair. “After the National Park Service explicitly withdrew, the prosecution decided to continue on the war path and subpoenaed the park rangers to testify,” Burkesmith says in an email. “The trial then proceeded for two days, with [about] 20 federal employees in attendance, wasting countless taxpayer dollars to prosecute a trail runner for running on a trail.”
This certainly seems like a case that could have been handled with a civil fine rather than a criminal prosecution, or at least with a plea deal less onerous than the one prosecutors offered. “Even after the DOJ was aware of NPS withdrawal of support, on the morning of trial,” Bushnell and Rienzie say, Calmes “reiterated an offer of deferred prosecution with 1,000 hours of community service and a ban from Grand Teton National Park—entirely disproportionate to the conduct at question, particularly with the initiating agency no longer supporting prosecution.” Sunseri’s lawyers “extended a counter-offer modifying community service to 60 hours and replacing the ban with a restriction tied to alleged conduct.”
It is unclear how Hambrick will respond to Sunseri’s motion, how she is inclined to assess his guilt, or what punishment she might think is appropriate. But the fact that his fate will be decided by a single judge (subject to appeal) could affect the ultimate outcome.
Hambrick rejected Sunseri’s request for a jury trial, which she was allowed to do under a “petty offense exception” that the Supreme Court has textually carved out of the Sixth Amendment. That amendment says defendants “in all criminal prosecutions” have a right to “a speedy and public trial” by “an impartial jury.”
In cases like Sunseri’s, “the right to a jury trial is of particular importance,” Fox argues. “Founding-era jurors were tasked with preventing injustice. Criminal jurors had a civic duty to assess the wisdom, legitimacy and fairness of a given prosecution, and they had the power to acquit against the evidence to prevent injustice. It is doubtful that a jury fully cognizant of its historical powers and duties would convict Sunseri.”
