Aircraft Piracy, Interference, and Other Title 49 Aircraft OffensesVenue
Venue is governed by 18 U.S.C. §§ 3237, 3238 and Rule 18 of the Federal Rules of Criminal Procedure. (Former 49 U.S.C. App. § 1473(a) relating to venue was deleted as unnecessary. See H.R. Rep. No. 103-180, Table 2A, p. 587, reprinted at 1994 U.S. Code Cong. and Adm. News 818, 1404.) Air piracy, interference with flight crew members and attendants, and other Title 49 aircraft offenses may be prosecuted in the district over which the aircraft was flying at the time the offense took place. However, such prosecution requires, in those instances in which venue is at issue, ascertaining from the airline exactly where the offense occurred. In addition, the district over which the offense took place may be very inconvenient for the victims and witnesses, and the defendant may have few or no connections to it. Venue for air piracy and continuing interferences is, however, broader under the case law. See United States v. Busic, 549 F.2d 252 (2d Cir. 1977)(venue proper in air piracy case in district from which flight originated, given pre-take-off actions of defendants); United States v. Hall, 691 F.2d 48 (1st Cir. 1982) (venue in interference case proper in district to which flight was diverted, even though no actions by defendant over that district, because diversion established interference with crews' duties, so offense was "continuing"). (Both Busic and Hall interpret the former venue provision, 49 U.S.C. App. § 1473(a), since repealed, but remain authoritative due to the similarity in language between that provision and the language of the present Title 18 venue provisions.)
Further, there are good arguments that even a brief interference with a crew member under 49 U.S.C. § 46504 (formerly 49 U.S.C. App. § 1472(j)) or offenses such as assault under 49 U.S.C. § 46506(1) (formerly 49 U.S.C. App. § 1472(k)) need not be tried in the district over which the aircraft was flying at the time the offense was committed. The first argument begins from the proposition that, for any interference substantial enough to require the diversion of the plane for an unscheduled or "forced" landing, the offense is continuing and venue lies in the district where the landing is made. United States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982)("the offense [of interference] continues for at least as long as the crew are responding directly, and in derogation of their ordinary duties, to the defendant's behavior," rejecting defendant's argument that the venue statute "require[s] proof of precisely where his threats and assaults took place, in a plane traveling across many states at great speed, high above the earth.").
Thus, wherever the defendant's conduct is sufficiently disruptive to require diversion of the plane, the interference offense is deemed to continue, and the defendant may be prosecuted in the district of the airport at which the aircraft lands, even if he does not commit any disruptive act within that district. In those cases where the defendant's actions necessitate the flight's return to the airport from which it took off, prosecution in the district where the flight originated and returned would be proper under this principle.
In those instances where the flight continues to the scheduled destination in spite of the defendant's acts of interference, the defendant may be prosecuted in the destination airport district under Hall, provided that there is evidence of the interference continuing to the destination, or, at a minimum, evidence of continuing concern about the offender on the part of crew members or attendants. If there is no such evidence, a court could hold that venue lies only in the district over which the aircraft was flying at the time of the incident, perhaps in reliance on language in the legislative history. See H.R. Rept. No. 87-958, 1961 U.S.C.C.A.N. 2563, 2578 (stating that an offense committed in only one jurisdiction must be tried in that district). However, in such cases the question whether the incident merits prosecution at all should be considered.
A second argument supports venue in the landing district. Section 3237(a), ¶2, 18 U.S.C., provides that: "Any offense involving ... transportation in interstate or foreign commerce, ... is a continuing offense and, ... may be inquired of and prosecuted in any district from, through, or into which such commerce ... moves." Under this provision, added in the 1948 revision of Title 18 (Pub. L. No. 80-772, 62 Stat. 683, 826 (1948)), "[o]ffenses involving ... transportation in interstate commerce were clearly designated as continuing offenses." Reed Enterprises v. Clark, 278 F.Supp. 372, 378 (D.D.C. 1967)(three judge panel), aff'd, 390 U.S. 457 (1968) (per curium). It has been held that the provision "applies to any offense involving interstate transportation -- regardless of whether the interstate transportation is actually an element of the crime." United States v. Solan, 792 F.Supp. 99, 100 (M.D.Fla. 1992) ("circumstance" of intended receipt within district sufficient for venue for prosecution for delivery of package containing firearms to a contract carrier for interstate transportation, although all defendant's actions outside district), aff'd, 100 F.3d 969 (11th Cir. 1996) (mem.), cert denied, 520 U.S. 1222 (1997). See also United States v. Floyd, 228 F.2d 913, 918 (7th Cir.)(Hobbs Act prosecution for extortion from pipeline builders could be laid in any jurisdiction where commerce affected, including district in which pipeline to be located, although all defendants' acts were outside district), cert. denied, 351 U.S. 938 (1956); United States v. Barnard, 490 F.2d 907, 911 (9th Cir. 1973)(importation of narcotics "involves both 'transportation' and 'foreign commerce,'" so venue lies in any district overflown by aircraft carrying narcotics and defendant), cert. denied, 416 U.S. 959 (1974). Since virtually every interference and § 46506 enclave offense "involv[es] ... transportation in interstate or foreign commerce," 18 U.S.C. § 3237(a), ¶2, the offense would be continuing under the terms of that statute. The case law on that provision supports the proposition that venue, even for a brief act of interference or assault, lies in any district which the aircraft departed from, arrived at, was diverted to, or flew over. Thus, proper venue should not be limited to the single district over which an incident of interference or assault took place, but in many instances, is also proper in the district in which the aircraft landed.
Finally, it is not uncommon for an episode of interference with a flight crew member or attendant to be accompanied by or grow out of an assault or other offense against a passenger, certain of which are criminalized when committed in the special aircraft jurisdiction of the United States by 49 U.S.C. § 46506. Several equitable arguments lend support to the position that it is permissible to bring the "enclave offenses" in the same venue as the interference charge and join them for trial there.
The first argument is that the predecessor to Section 46506 was originally enacted to deal with the problem that states could not prosecute these offenses because it could not be proved that the offense took place over the prosecuting state. See H.R. Rept. No. 87-958, 1961 U.S.C.C.A.N. at 2563-65, 2570-71. But to then require the federal prosecutors to prove exactly the same point -- establishing the precise district over which the crime took place -- would not effectively solve the problem. As noted by the courts in Hall and Busic, broad venue and a continuing offense analysis is of assistance in minimizing that problem.
Second, it is apparently not infrequent that the offending passenger both interferes with the crew and assaults or sexually abuses a passenger or attendant. It should not be the law that the interference may be prosecuted in the forced landing or arrival district as Hall allows, but that the assault or sexual abuse, which underlies or accompanies the interference and is governed by the same venue statutes, must be prosecuted in the district over which the act took place.
Third, it should not matter whether the aircraft was over land or over water when the assault took place. For example, venue should not turn on whether the air traffic controllers route a New York to Miami flight over the Atlantic or along Interstate 95, but under the theory limiting venue to the single overflight district, venue for a single assault midway on the flight over water would lie in the district where the aircraft lands, while for the flight over land venue would lie only in some district in the mid-Atlantic region. Nor should venue be different for two discrete assaults on a transatlantic flight to Washington, D.C., the first taking place over the Atlantic and the second somewhere over New England. Under the "overflight" theory, however, the first may be prosecuted in the district where the aircraft lands, but the second may only be prosecuted in one of the districts of New England. Surely, it is more reasonable to try the two assaults together, and more generally, to try the enclave offense with the interference offense in the landing or other appropriate district. The approach supported by these arguments, laying venue for "enclave offenses" under Section 46506 in the same district as the related interference offense, appears more equitable and defensible than splitting the prosecutions. To the extent the defendant may be prejudiced or inconvenienced, Rule 21 of the Federal Rules of Criminal Procedure is available to provide relief in appropriate cases.
A more detailed memorandum on venue, as well as advice on prosecutions under Section 46504 and 46506, may be obtained from the Terrorism and Violent Crime Section, at (202) 514-0849.
[updated August 1999] [cited in Criminal Resource Manual 673; Criminal Resource Manual 1411; Criminal Resource Manual 1412; USAM 9-63.100]