Very High Crimes: Determining the Proper Venue for Crimes Committed on Board During Domestic Flights

Posted: 19 Dec 2019

Date Written: December 3, 2019

Abstract

American filmmaker and writer John Waters once said: “I’d be arrested if I still smoked because I’m the one who would be changing the battery in the airplane in the lavatory to take out the smoke detector. I would’ve been those people they warn you against.” Given the current state of federal law, Waters would have not only inconvenienced the passengers and flight crew, but also given many restless nights to his attorney.

Regarding crimes committed aboard aircraft, the law is still very much unsettled. Crimes committed on international flights are governed by the Convention on Offences and Certain Other Acts Committed on Board Aircraft, commonly called the Tokyo Convention. It gives criminal jurisdiction to the State in which the aircraft was registered. Signatory states that are not the state of registry may also exercise criminal jurisdiction under limited circumstances. However, the Tokyo Convention does not apply in strictly domestic criminal cases.

Domestically, the Federal Aviation Act, signed by President Dwight D. Eisenhower in 1958, created the Federal Aviation Agency (later the Federal Aviation Administration ) and gave it authority to regulate safety standards in the airline industry and oversee the use of American airspace by civilian and military aircraft. For air crimes, the statute provides that the proper venue criminal acts committed on-board is the district where the offense was committed or, if that is inapplicable, in the district where the defendant is arrested or first brought. However, the Federal Aviation Act is rarely used to determine venue when litigating in-flight crimes.

The traditional approach, followed by the Tenth and Eleventh Circuits, provides that because crimes committed on commercial airlines involve transportation in interstate commerce, venue is proper in any state or district over which the aircraft flew. In a recent decision, the Ninth Circuit held that proper venue is the state over which the plane flew when the offense was committed.

This Note discusses the current state of the law regarding the determination of venue for crimes committed aboard American aircraft during domestic flights. Section I provides background information on the unresolved circuit split regarding this issue and the most recent case to address it. Section II sets out the argument that the Ninth Circuit’s reasoning in splitting from the Eleventh and Tenth circuits was correct, but the result it reached is inapplicable. Section III suggests an alternative legal basis for determining the proper venue for crimes committed during domestic flights. Section IV gives a few recommendations for a much-needed new statute ascertaining venue for crimes committed above 30,000 feet.

JEL Classification: R40, R41, R48, R49

Suggested Citation

Wanstok, Solal, Very High Crimes: Determining the Proper Venue for Crimes Committed on Board During Domestic Flights (December 3, 2019). Available at SSRN: https://ssrn.com/abstract=3497151

Solal Wanstok (Contact Author)

Vermont Law School, Students ( email )

164 Chelsea Street
South Royalton, VT 05068
United States

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