Solal Wanstok

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.”[1] 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.

The selection of venue is an essential element of any criminal proceeding[2], and the principle that a crime should be prosecuted where committed is deeply engrained in our legal system.[3] This principle serves two primary purposes. Firstly, the constitutional right to venue operates as a safeguard to prevent jury discrimination against out-of-state criminal defendants.[4] Secondly, venue is the most important factor in determining the convenience and expense associated with litigation. Therefore, a criminal defendant may request a change of venue for several reasons, including prejudice,[5] convenience,[6] plea, or sentence.[7]

However, some crimes may be committed beyond the geographical limits of any district. The Venue Clause of Article III states that for crimes “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”[8] Pursuant to this constitutional authority, Congress enacted Section 3237 to determine venue for multi-district crimes.[9] Specifically, the statute addresses continuing offenses, offenses involving the use of the mails or interstate commerce, and tax offenses. Conversely, Section 3238 governs “offenses not committed in any district.”[10]

This Note will discuss 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.


[1] John Waters Hitchhikes Across America, and Lives to Write About It, National Public Radio (Jun. 10, 2019),

[2] See United States v. Kelly, 535 F.3d 1229, 1233 (10th Cir. 2008) (“Although venue is not the focal point in most criminal matters, it is not a mere technicality. It is a constitutional consideration and an element of every crime.”)

[3] See U.S. Const. Art. III, § 2, cl. 3 (providing that the “[t]rial of all Crimes … shall be held in the State where the said Crime shall have been committed.”); F.R.Crim.P. 18 (“the government must prosecute an offense in the district where the offense was committed.”)

[4] United States v. Cores, 356 U.S. 405, 407 (1958) (“The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.”)

[5] See Fed. R. Crim. P. 21(a) (giving the accused the right to change venue when there is such a prejudice against him or her in the original venue that a fair and impartial trial is impossible.)

[6] See Fed. R. Crim. P. 21(b) (allowing the court to transfer the proceeding, upon the defendant’s motion, to another venue for the convenience of the parties, the victim, and the witnesses, and in the interest of justice.)

[7] See Fed. R. Crim. P. 20(a) (“A prosecution may be transferred from the district where the indictment or information is pending, or from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present…”)

[8] U.S. CONST. art. III, § 2, cl. 3.

[9] 18 U.S.C. § 3237.

[10] See 18 U.S.C. § 3238 (“The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender.”)

Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.

Learn more about the submissions process >