Prof. Cole at CrimProfBlog brings us,
Nathan Lilly (Sandra Day O’Connor College of Law at Arizona State University) has posted The ‘High Skies’: Establishing Venue for Prosecutions of Crimes Aboard Aircraft (57 Crim L. Bull., no. 1, Forthcoming) on SSRN. Here is the abstract:
A fundamental concept in criminal procedure is that the trial must take place where the crime was committed. Without proper venue, a defendant cannot be found guilty of the charged crime. But where is venue when the crime is committed on an airplane traveling through the sky at 500 miles per hour? This article analyzes United States v. Lozoya, a 2019 decision from the Ninth Circuit Court of Appeals that broke from the conventional wisdom of the Tenth and Eleventh Circuits in holding that the proper venue is the federal judicial district over which the plane was flying at the time of the crime. No legal scholarship has ever considered criminal venue in this particular context. This article analyzes the two main federal venue statutes, 18 U.S.C. §§ 3237 and 3238, and argues that neither the Ninth Circuit approach nor the Tenth or Eleventh Circuit approaches view the law correctly. The most logical outcome — prosecution in the district in which the plane ultimately lands — is undisputed. But the plain meaning of the venue statutes supports the assumption that airplanes in the “high skies” are a lot like ships on the high seas. When the Ninth Circuit reconsiders this issue en banc in 2020, it can solve the problem by holding, for purposes of criminal venue, that American airspace is considered “outside of any district” and thus the prosecution can bring charges where the defendant is arrested (i.e. the landing district).
The question is of interest to me because I recently had an Army client arrested in Germany when he deplaned from his transatlantic flight (accused of a sexual assault). The German prosecution declined the case and so prosecution was initiated in the Eastern District of Virginia. For various good reasons the case was dismissed, but the administrative consequences weren’t. We have plenty of potential clients flying all over the world for duty or leave–a potential pool of clients.