An air piracy indictment may be returned in the district where the hijacking offense was begun, continued or terminated. See 18 U.S.C. § 3237.
The courts have held in United States v. Busic, 592 F.2d 13, 21 (2d Cir. 1978); United States v. Remling, 548 F.2d 1274 (6th Cir. 1977), and United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973), that the twenty-year penalty for aircraft piracy where there is no loss of life is not a mandatory penalty. Accordingly, any indictment for air piracy may charge other serious offenses, such as kidnapping and interference with a flight crew, arising out of the same transaction.
While the preferred approach is to seek the return of an indictment within the normal five year statue of limitations period (assuming that no death resulted during the aircraft piracy), the defendant's hijacking of an aircraft in the United States and taking it to Cuba has been held to constitute an actual flight with intent to avoid prosecution under 18 U.S.C. § 3290 sufficient to toll the statute of limitations. See United States v. Fonseca-Machado, 53 F.3d 1242 (11th Cir. 1995).
Hijacking an aircraft in the United States and taking it to Cuba violates the laws of both sovereigns and a prosecution by Cuba does not bar a subsequent prosecution by the United States. See Jackson v. Brennan, 924 F.2d 725, 729 (7th Cir. 1991). Nor is the defendant entitled to credit for any period of incarceration imposed by the foreign sovereign. Id. at 727-29.
[updated August 1999] [cited in JM 9-63.100]