The "High Skies": Establishing Venue for Prosecutions of Crimes Aboard Aircraft

57 Crim L. Bull., no. 1, 2021

34 Pages Posted: 2 Sep 2020 Last revised: 14 Feb 2023

See all articles by Nathan Lilly

Nathan Lilly

Sandra Day O'Connor College of Law at Arizona State University

Date Written: April 21, 2020

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 now-overturned 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. Before Lozoya, no legal scholarship had 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. If the United States Supreme Court ever considers this issue, it can solve the problem by holding, for purposes of criminal venue, that U.S. airspace is considered “outside of any district,” and thus the prosecution can bring charges where the defendant is arrested (i.e., the landing district).

Keywords: criminal, criminal law, criminal procedure, airplane, aircraft, ninth circuit, 9th circuit, en banc, venue, jurisdiction, california, lozoya, united states v. lozoya, assault, crime

Suggested Citation

Lilly, Nathan, The "High Skies": Establishing Venue for Prosecutions of Crimes Aboard Aircraft (April 21, 2020). 57 Crim L. Bull., no. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3677647 or http://dx.doi.org/10.2139/ssrn.3677647

Nathan Lilly (Contact Author)

Sandra Day O'Connor College of Law at Arizona State University ( email )

111 E Taylor Street
Phoenix, AZ 85004
United States

HOME PAGE: http://law.asu.edu/

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