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repealed, but remain authoritative due to the similarity in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
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
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
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]