920 F.3d 1231

OWENS, Circuit Judge, concurring in part and dissenting in part:
While I agree with much of the majority opinion, I disagree with its ultimate holding on venue, which creates a circuit split and makes prosecuting crimes on aircraft (including cases far more serious than this one) extremely difficult.
The friendly skies are not always so friendly. You do not need to watch Passenger 57 , Flightplan , Turbulence , or even the vastly underrated Executive Decision to know that dangerous criminal activity occurs on airplanes. For example, federal law enforcement has tracked a significant increase in sexual assaults on airplanes in recent years (including abuse of children), and yet there remains little ability to combat these crimes 30,000 feet in the air.
Congress recognized this problem over 50 years ago when it passed comprehensive legislation to protect flight crews and passengers from serious crimes. See Federal Aviation Act Amendments of 1961, Pub. L. No. 87-197, 75 Stat. 466, 466-68. Congress extended the application of certain federal criminal laws, including the assault statute at issue in this case, to acts on airplanes to combat the "unique problems"
involved in determining jurisdiction for state prosecutions:
In this age of jet aircraft a moment of time can mean many miles have been traversed. Present aircraft pass swiftly from county to county and from State to State. As a result serious legal questions can arise as to the situs of the aircraft at the time the crime was committed. The question as to the law of which jurisdiction should apply to a given offense can be the subject of endless debate, and excessive delay in the prosecution becomes inevitable. The difficulties encountered by the overflown State in collecting evidence sufficient to support an indictment are obvious .... "To contrast, if the offense were also a crime under Federal law, the aircraft would be met on landing by Federal officers. The offender could be taken into custody immediately and the criminal prosecution instituted."
S. Rep. No. 87-694, at 2-3 (1961) (quoting the testimony of Najeeb Halaby, Administrator of the Federal Aviation Agency). Until now, no court has disturbed the ability to prosecute federal offenders in the district where the airplane landed. See United States v. Cope , 676 F.3d 1219, 1224-25 (10th Cir. 2012) ; United States v. Breitweiser , 357 F.3d 1249, 1253-54 (11th Cir. 2004) ; United States v. McCulley , 673 F.2d 346, 349-50 (11th Cir. 1982) ; cf. United States v. Hall , 691 F.2d 48, 50-51 (1st Cir. 1982).
I acknowledge that the venue provision at issue-the second paragraph of 18 U.S.C. § 3237(a) -could be clearer. But considering what the majority recognizes as the "creeping absurdity" of its position, Majority Opinion 1242, we should heed the advice of our court-and the Supreme Court-that "statutory interpretations which would produce absurd results are to be avoided." United States v. LKAV , 712 F.3d 436, 440 (9th Cir. 2013) (citation and alteration omitted); see also Rowland v. Cal. Men's Colony , 506 U.S. 194, 200, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (describing "the common mandate of statutory construction to avoid absurd results"); Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (stating that "interpretations of a statute which would produce absurd results are to be avoided"). I agree with the Tenth and Eleventh Circuits that the "transportation in interstate ... commerce" language in § 3237(a) covers the conduct at issue here. It may be that the Tenth and Eleventh Circuits' opinions are not "tenure track" in their analyses, but not every legal question requires a law review article. Sometimes, common sense is enough.
The troubling result of this case is not limited to these rather innocuous facts. It applies to any offense that the majority deems non-continuous, which includes sexual assault, murder, and so on. See 49 U.S.C. § 46506 (applying certain criminal laws to acts on aircraft, including, but not limited to, 18 U.S.C. §§ 113 (assaults), 114 (maiming), 661 (theft), 1111 (murder), 1112 (manslaughter), 2241 (aggravated sexual abuse), and 2243 (sexual abuse of a minor or ward)).
Nor is the result limited to the smaller states of the Northeastern United States. See Majority Opinion 1242. Under the majority's rule, the government must prove which district-not merely which state-an airplane was flying over when the crime was committed. A flight from San Francisco to Houston potentially crosses eight judicial districts. A flight from San Francisco to Miami crosses far more. Asking a traumatized victim, especially a child, to pinpoint the precise minute when a sexual assault occurred is something I cannot imagine the Framers intended, or the more recent Congress wished when it enacted our venue and flight laws. Yet without the precision that the majority now requires, prosecutions of violent crimes on board aircraft could be impossible. In fact, the government insists that it cannot pinpoint when the assault occurred in this case, and I doubt that the majority's back-of-the-envelope calculation will be of much assistance. See Majority Opinion 1241-42.
Venue in criminal cases protects defendants' rights to a fair trial. But here, limiting venue to a "flyover state," where the defendant and potential witnesses have no ties, makes no sense. In contrast, a prosecution in the landing district "creates no unfairness to defendants." Hall , 691 F.2d at 50. And a defendant who is truly inconvenienced may request a transfer of venue. Fed. R. Crim. P. 21(b).
I respectfully dissent, and urge the Supreme Court (or Congress) to restore quickly the just and sensible venue rule that, until now, applied to domestic air travel.
See Sexual Assault Aboard Aircraft , FBI (Apr. 26, 2018), https://www.fbi.gov/news/stories/raising-awareness-about-sexual-assault-aboard-aircraft-042618 (reporting that sexual assaults aboard aircraft are "on the rise"); Lynh Bui, Sexual Assaults on Airplanes are Increasing, FBI Warns Summer Travelers , Wash. Post (June 20, 2018), https://www.washingtonpost.com/local/public-safety/sexual-assaults-on-airplanes-are-increasing-fbi-warns-summer-travelers/2018/06/20/64d54598-73fd-11e8-b4b7-308400242c2e_story.html (FBI in Maryland alerting the public that sexual assaults on commercial flights are "increasing every year ... at an alarming rate").

Passage view · GavelSight