USA v. Sullivan

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAIʻI
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOHN LAWRENCE SULLIVAN,
Defendant.
Crim. No. 25‐00048 MWJS
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
INTRODUCTION
This criminal case arises from charges of abusive sexual contact and interference
with the flight crew aboard a commercial flight from Honolulu to San Diego. In
advance of the trial scheduled for May 11, 2026, Defendant John L. Sullivan moves to
dismiss the indictment against him on the grounds that it improperly lays venue in the
District of Hawaiʻi. He argues that the indictment only alleges a single venue statute
and fails to provide factual allegations sufficient to establish venue under that statute.
The government opposes the motion, arguing that the allegations in the indictment
support venue under a different venue provision.
The court heard oral argument on the motion at a hearing on February 6, 2026.
After carefully considering the briefs and the arguments of counsel, the court DENIES
Sullivan’s motion to dismiss.
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 1 of 25
PageID.<pageID>

2
BACKGROUND
On the evening of February 7, 2025, Sullivan boarded Alaska Airlines Flight 892
at Daniel K. Inouye International Airport in Honolulu, Hawaiʻi. 1 The plane was
scheduled for an overnight flight to San Diego International Airport in California. Dkt.
No. 1; Dkt. No. 34‐4. At some point well after takeoff, a flight attendant made his way
through the cabin, attending to passengers. Dkt. No. 34‐3; Dkt. No. 39, at PageID.246.
As the flight attendant passed Sullivan’s seat, Sullivan allegedly “reached between [the
flight attendant’s] legs, grasped his genitals, and pulled up.” Dkt. No. 39, at
PageID.246. The flight attendant escaped to the galley and the unwanted contact was
reported to the captain, who made the decision to return to Honolulu. Id.
When the aircraft returned to Gate E4 at Daniel K. Inouye International Airport
in the early morning of February 8, it was met by law enforcement officers from the
Hawaiʻi Department of Law Enforcement. Id. At least one officer asked Sullivan to exit
the aircraft and escorted him off the plane and into the terminal. Id.; Dkt. No. 40‐2.
Sullivan sat at a gate a few gates away from E4 while law enforcement officers
conducted an investigation and took statements from witnesses and flight crew. Id.
After about ninety minutes, an agent from the Federal Bureau of Investigation
1 	For the purposes of this motion, the court assumes the truth of all facts alleged in
the indictment. See United States v. Ghanem, 993 F.3d 1113, 1120 (9th Cir. 2021). As
context for the parties’ arguments, the court also describes additional factual assertions
included in the parties’ briefs. The court does not rely on these additional assertions,
however, and makes no findings regarding their truth.
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 2 of 25
PageID.<pageID>

3
approached Sullivan and asked if he would be willing to speak with law enforcement
about the incident. Dkt. No. 40‐3. Sullivan responded, “I want to leave, and I don’t
want to speak to you.” Id. At that point, the interview concluded and Sullivan was
escorted out of the terminal by law enforcement. Id.; Dkt. No. 40‐2. Sullivan then flew
home to San Diego on a different flight without any further interaction with law
enforcement in the District of Hawaiʻi. Dkt. No. 40, at PageID.260.
On June 12, 2025, a grand jury in this district returned an indictment against
Sullivan based on his alleged conduct aboard Flight 892. Dkt. No. 1. The indictment
charges Sullivan in two counts. Count I charges Sullivan with abusive sexual contact in
violation of 18 U.S.C. § 2244(a). It alleges that on or about February 8, 2025, Sullivan
“did knowingly have sexual contact” with a “flight attendant on Alaska Airlines, Flight
892” without the flight attendant’s permission, that the sexual contact occurred “within
the special aircraft jurisdiction of the United States, namely Alaska Airlines, Flight 892,
in flight, and within the jurisdiction of the District of Hawaiʻi,” and that this conduct
violated 18 U.S.C. § 2244(b) and 49 U.S.C. § 46506(1). Dkt. No. 1, at PageID.2. Count II
charges that also on or about February 8, 2025, Sullivan “did unlawfully and
knowingly, by assaulting and intimidating flight attendants, interfere with the
performance of the duties of the flight attendants and lessen the ability of the flight
attendants [to] perform these duties,” and attempted to do the same, that the
interference occurred “within the special aircraft jurisdiction of the United States,
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 3 of 25
PageID.<pageID>

4
namely Alaska Airlines, Flight 892, in flight, and within the jurisdiction of the District of
Hawaiʻi,” and that this conduct violated 49 U.S.C. § 46504 and 18 U.S.C. § 3238. Id. at
PageID.2‐3. An arrest warrant was issued for Sullivan, Dkt. No. 3, and he was arrested
at his residence in Encinitas, California, on July 24, 2025, at which point the indictment
was unsealed, Dkt. No. 5.
Sullivan filed his motion to dismiss the indictment for improper venue on
December 23, 2025. Dkt. No. 34. The government responded, Dkt. No. 39, and Sullivan
replied, Dkt. No. 40. The court heard the arguments of counsel at a hearing on
February 6, 2026. Dkt. No. 42. Following the hearing, the government submitted a
request for leave to submit supplement briefing, Dkt. Nos. 43, 45, which Sullivan
opposed, Dkt. No. 44, and which the court denied, Dkt. No. 46. But the court separately
ordered additional briefing on seven discrete points, Dkt. No. 46, and each party
submitted supplemental briefs in response, Dkt. Nos. 49, 50.
DISCUSSION
The Constitution generally requires all criminal trials to take place in the state
and district where the crime took place. United States v. Lozoya, 982 F.3d 648, 651 (9th
Cir. 2021) (en banc). But for crimes committed outside the borders of any state, “the
Constitution provides that ‘the Trial shall be at such Place or Places as the Congress
may be Law have directed.’” Id. (quoting U.S. Const. art. III, § 2, cl. 3).
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 4 of 25
PageID.<pageID>

5
Because a criminal defendant has a constitutional right to be tried in the correct
place, see Ghanem, 993 F.3d at 1119, an indictment may be dismissed on a pretrial motion
to dismiss for improper venue if that motion “can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3). In deciding a Rule 12(b) motion, the court is “bound
by the four corners of the indictment, must accept the truth of the allegations in the
indictment, and cannot consider evidence that does not appear on the face of the
indictment.” United States v. Kelly, 874 F.3d 1037, 1047 (9th Cir. 2017); see also United
States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997) (noting that “only the indictment
may be considered in pretrial motions to dismiss for lack of venue”).
With this guidance in mind, the court turns to the merits. Some of Sullivan’s
arguments for dismissal are common to both counts in the indictment, but most apply
only to one count or the other. Accordingly, the arguments for the dismissal of each
count are considered in turn.
A. 	Count I (Abusive Sexual Contact)
Sullivan argues that the entire indictment should be dismissed because of its
reliance on 18 U.S.C. § 3238, a venue statute that directs where the trial of certain
offenses committed outside the United States should take place. It provides in relevant
part:
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 . . . is arrested or is first
brought; but if such offender . . . [is] not so arrested or brought into
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 5 of 25
PageID.<pageID>

6
any district, an indictment or information may be filed in the
district of the last known residence of the offender . . . .
The parties agree that § 3238 applies when the charged offense was “begun or
committed upon the high seas, or elsewhere out of the jurisdiction of any particular
State or district,” and that when it applies, § 3238 provides for venue in the district
where the defendant was “arrested,” “first brought,” or maintains his last known
residence. Dkt. No. 34, at PageID.215‐17; Dkt. No. 39, at PageID.252‐53. And Sullivan
contends that § 3238 does apply here because the charged offenses were “begun or
committed upon the high seas,” insofar as they were committed over international
waters while the flight soared above the Pacific Ocean. Dkt. No. 34. But he also asserts
that the indictment has not alleged, and the government cannot prove, that he was
arrested in, first brought to, or a last known resident of the District of Hawaiʻi.
According to Sullivan, that makes venue in this district improper.
But there is an immediate problem with Sullivan’s argument as it relates to
Count I. While Count II of the indictment plainly alleges that the charged conduct of
“Interference with Flight Crew Members and Attendants” was “in violation of . . . Title
18, United States Code, Section 3238,” it is undisputed that Count I includes no
allegations about § 3238. Dkt. No. 1, at PageID.2‐3. Indeed, Count I does not include
any reference to venue provisions at all.
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 6 of 25
PageID.<pageID>

7
Picking up on Count I’s silence as to venue, the government sidesteps § 3238 and
argues instead that venue is proper under a different statute, 18 U.S.C. § 3237(a), which
provides:
Except as otherwise expressly provided by enactment of Congress,
any offense against the United States begun in one district and
completed in another, or committed in more than one district, may
be inquired of and prosecuted in any district in which such offense
was begun, continued, or completed.
Any offense involving the use of the mails, transportation in
interstate or foreign commerce, or the importation of an object or
person into the United States is a continuing offense and, except as
otherwise expressly provided by enactment of Congress, may be
inquired of and prosecuted in any district from, through, or into
which such commerce, mail matter, or imported object or person
moves.
Sullivan resists the government’s effort, contending that only § 3238, and not
§ 3237, properly applies to Count I. He contends that “Section 3237 is not the venue
statute charged in the indictment,” which “alleges only one venue statute, 18 U.S.C.
§ 3238.” Dkt. No. 34, at PageID.212, 215. As a result, “Section 3238 (not Section 3237)
applies to both counts in the Indictment.” Dkt. No. 40, at PageID.270.
Sullivan is correct that the indictment alleges only one venue statute, § 3238. But
the fact of its inclusion in Count II of the indictment offers no obvious reason to hold the
government to that provision alone in connection with Count I. That is because “an
indictment does not have to plead a basis for venue” at all. United States v. Biao, 51 F.
Supp. 2d 1042, 1044 (S.D. Cal. 1999); see also Fed. R. Crim. P. 7(c). And given that “[t]he
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 7 of 25
PageID.<pageID>

8
Federal Rules of Criminal Procedure do not require venue to be pleaded[,] [a]n
indictment only needs to contain a bare‐bones allegation that criminal activity took
place in the venue.” United States v. Coppola, No. CR 14‐117, 2016 WL 3926254, at *3 (D.
Mont. July 18, 2016) (cleaned up). It would be odd, then, for the court to conclude that
whenever a citation to a venue statute appears anywhere in an indictment, the general
rule—that an indictment need not plead venue at all, so long as it includes a bare‐bones
allegation to support venue—gives way to a special rule requiring the government to
plead a specific basis for venue sufficient to satisfy the cited provision for every count.
The more natural conclusion is that the government is not automatically bound to a
particular venue provision on a count that is otherwise silent merely because another
count in the indictment happens to include a specific venue citation. That conclusion
readily flows from the maxim that “venue is determined on a count‐by‐count basis.”
United States v. Nathanson, 813 F. Supp. 1433, 1435 (E.D. Cal. 1993).
To shore up his counterintuitive position, Sullivan offers a separate reason to
conclude that § 3238 should be applied to both counts: he contends that “[b]ased on a
plain reading of the charging document, it appears that Section 3238 was the only
theory of venue presented to the grand jury as to both charges in this case.” Dkt. No.
40, at PageID.262. But the face of the indictment does not support such a reading. As
noted, courts “must consider venue for each count separately, even if the same conduct
is charged in multiple counts.” Ghanem, 993 F.3d at 1120. The fact that the indictment
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 8 of 25
PageID.<pageID>

9
includes a reference to § 3238 in Count II does not support the inference that the
government must have presented an identical theory of venue to the grand jury on
Count I as well. Even if the inference were supportable, it would fall well short of the
“particularized proof of irregularities in the grand jury process” needed to dispel the
presumption of regularity accorded to grand jury proceedings. United States v.
Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J., concurring).
The court finds no reason to conclude that § 3238’s appearance in Count II makes
it the only venue theory upon which the government can rely for Count I. As a result,
the court turns to the merits of the arguments surrounding the application of § 3237 to
Count I.
The government asserts that “the second paragraph of 18 U.S.C. § 3237(a) applies
to federal crimes committed on commercial aircraft within the special [aircraft]
jurisdiction of the United States.” Dkt. No. 39, at PageID.248 (quoting Lozoya, 982 F.3d
at 653). The “special aircraft jurisdiction of the United States” is defined to include,
among other things, a civil aircraft of the United States once all external doors are
closed following boarding. 49 U.S.C. § 46501. And when a federal crime occurs on a
commercial aircraft within that special jurisdiction, the Ninth Circuit’s en banc decision
in United States v. Lozoya holds that “venue [is] proper in the district in which the
aircraft land[s].” Dkt. No. 39, at PageID.248. It is undisputed that Alaska Flight 892
departed Honolulu, cruised over the Pacific (during which time the alleged offenses
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 9 of 25
PageID.<pageID>

10
took place), turned back towards Hawaiʻi, and landed in Honolulu. It is also
undisputed that the alleged groping which forms the basis of Count I took place while
Flight 892 was in flight. Dkt. No. 34, at PageID.216 & n.2. The charged conduct, if
proven, would therefore be a federal crime committed on a commercial aircraft within
the special aircraft jurisdiction of the United States. Lozoya instructs that § 3237 applies
to such crimes, and that venue is proper in the landing district—which in this case is the
District of Hawaiʻi.
Sullivan protests that § 3237 “does not appear a single time in the indictment,”
Dkt. No. 40, at PageID.261, and asserts that it is clear from the face of the indictment
that a theory based on § 3237 was not presented to the grand jury (as distinct from his
earlier assertion that a theory based on § 3238 was presented to the grand jury), id. at
PageID.267. For the reasons stated above, the government did not need to specifically
allege § 3237—or any venue provision, for that matter—in the indictment. See Biao, 51
F. Supp. at 1044. And the court cannot without more accept the assertion that a theory
of venue under § 3237 was not presented to the grand jury when the grand jury in fact
returned an indictment that satisfies the provisions of § 3237.
Sullivan also argues that even if the indictment had alleged § 3237, that provision
“cannot apply as a matter of law.” Dkt. No. 34, at PageID.217. Although he does not
dispute the well‐settled proposition that “venue for a criminal prosecution may be
available in more than one district,” United States v. Abouammo, 122 F.4th 1072, 1090 (9th
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 10 of 25
PageID.<pageID>

11
Cir. 2024), cert. granted in part, — S. Ct. — (2025) (No. 25‐5146), he contends that “[t]he
phrase ‘except as otherwise expressly provided by enactment of Congress,’ which
appears twice in Section 3237, makes clear that the statute does not apply in cases where
Congress has ‘enacted’ another applicable venue statute.” Dkt. No. 34, at PageID.218.
In Sullivan’s view, “Congress ‘otherwise expressly provided’ venue for crimes alleged
to have ‘begun’ upon the high seas in Section 3238,” which “clearly states that it applies
to ‘all offenses begun or committed upon the high seas.’” Dkt. No. 40, at PageID.261.
Here, “the alleged groping occurred over the high seas, making Section 3238 the
applicable venue statute.” Dkt. No. 34, at PageID.220. And because of the “otherwise
expressly provided” carveout in § 3237, § 3238 is “therefore the only statute that can
apply.” Dkt. No. 40, at PageID.261.
Sullivan reads that statutory language too broadly. When a statute does not
define its terms, courts “give them their ordinary, contemporary, common meaning,
and may consult dictionary definitions.” City of Los Angeles v. Barr, 941 F.3d 931, 940
(9th Cir. 2019) (cleaned up). Under the dictionary definition, something is “express”
when it is “clearly and unmistakably communicated” or “stated with directness and
clarity.” Express, Black’s Law Dictionary (12th ed. 2024). 2 And § 3238 does not reflect a
clear and unmistakable pronouncement by Congress that whenever the statute applies,
2 	Dictionaries from around the time of § 3237’s enactment in 1948 reflect a similar
definition: “directly and distinctly stated; definite; clear; explicit.” Express, Webster’s
New Collegiate Dictionary (2d ed. 1949).
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 11 of 25
PageID.<pageID>

12
no other venue provision may apply. In fact, there is little to even suggest that § 3238 is
intended to preempt other venue provisions beyond its general reference to “all
offenses” that fall within its sweep and its language that venue for such offenses “shall
be” in the district or districts where the statutory requirements are met. These terms do
not clear the high bar of unmistakable clarity that an “express” congressional provision
requires.
The Reviser’s Note included in the edition of the United States Code following
§ 3237’s enactment offers insight into what Congress had in mind when it included the
phrase “Except as otherwise expressly provided by enactment of Congress.” It explains
that the last paragraph of § 3237(a) was added to “remove[] all doubt as to the venue of
continuing offenses and [to] make[] unnecessary special venue provisions except in
cases where Congress desires to restrict the prosecution of offenses to particular
districts as in section 1073 of this revision.” Reviser’s Note, 18 U.S.C. § 3237(a). The
language of § 1073, which criminalized flight to avoid prosecution or giving testimony,
provided in relevant part: “Violations of this section may be prosecuted only in the
Federal judicial district in which the original crime was alleged to have been committed
or in which the person was held in custody or confinement.” 18 U.S.C. § 1073 (1952).
Section 1073, with its clear and unmistakable dictate that venue may “only” lie in
particular districts, contains an express provision that is incompatible with § 3237.
Section 3238 does not.
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 12 of 25
PageID.<pageID>

13
Nor does the bare use of “shall” represent an express statement by Congress that
whenever § 3238 can apply, it must apply to the exclusion of any other potentially
applicable venue statute. See 18 U.S.C. § 3238 (“The trial of all offenses . . . shall be in the
district . . . .” (emphasis added)). If that were correct, it would render § 3238
unconstitutional in a variety of applications. Section 3238 applies not only to purely
extraterritorial crimes, but also to crimes “begun . . . upon the high seas, or elsewhere
out of the jurisdiction of any particular State or district.” If § 3238 were truly
exclusionary, trial for crimes begun outside the United States but continued into a given
district would have to be held in the district where the defendant was arrested, first
brought, or a resident. Under that reading of the statute, for example, someone who
kidnaps a person on a vessel in international waters and holds them against their will
until after the ship makes port in San Diego—but who is not ultimately arrested until he
returns home to Boston—could only be prosecuted in District of Massachusetts. But
that result would violate the Constitution’s command that criminal trials be “held in the
State where the said Crimes shall have been committed,” unless the crime is “not
committed within any State.” U.S. Const., art. III, § 2, cl. 3.
To avoid an unconstitutional result, other courts have applied a narrowing
construction of § 3238 in certain circumstances. See United States v. Jin, Crim. No. 23‐
091‐2, 2025 WL 2409749, at *14‐19 (D.D.C. Aug. 19, 2025) (construing § 3238 to apply
only to offenses for which the “essential conduct elements” were completed outside the
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 13 of 25
PageID.<pageID>

14
United States). Sullivan asks the court to similarly “interpret[] Section 3238 as being
‘mandatory’ for ‘all offenses’ where all essential conduct elements are alleged to have
‘begun’ and been committed outside of the United States.” Dkt. No. 49, at PageID.379.
But the court would only have to adopt that narrowing construction if it first construed
§ 3238 in a manner that would produce a number of foreseeable unconstitutional
applications. And when reading a statute in a given manner “would render [it] partly
unconstitutional,” that result counsels in favor of interpreting it in a different manner.
Learning Resources, Inc. v. Trump, Nos. 24‐1287 & 25‐250, slip op. at 15 (U.S. Feb. 20, 2026)
(majority opinion). The court therefore declines to interpret “shall” as mandatory in the
manner Sullivan counsels.
Other courts have offered additional reasons to reject the “otherwise expressly
provided” carveout in this context. In United States v. Hassanshahi, 185 F. Supp. 3d 55
(D.D.C. 2016), the defendant had been charged with conspiracy in an indictment that
alleged the offense had taken place “outside the jurisdiction of any particular state or
district of the United States, but within the jurisdiction of the United States.” Id. at 56‐
57. It was therefore undisputed that venue would properly lie pursuant to § 3238. But
the defendant had instead been brought to trial in a district where venue was only
proper under § 3237, and not under § 3238. He thus sought to dismiss the indictment
for improper venue, arguing that “§ 3237(a)’s venue provision is merely permissive,
and . . . even if venue could be supported under that section, it is trumped” by the
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 14 of 25
PageID.<pageID>

15
supposedly mandatory language of § 3238. Id. at 58. Because § 3237(a) applies only
“except as otherwise expressly provided by enactment of Congress,” and because
§ 3238 states that “’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’
where the defendant is first arrested or last resided,” the defendant reasoned that
“venue [was] only proper” in the Central District of California, where he resided and
was arrested. Id.
The court rejected this argument, explaining that “every court that the Court is
aware of to have considered the issue has concluded that § 3238 is not a mandatory
exception to § 3237(a).” Id. Instead, as other courts have explained (and as the Reviser’s
Note suggests), the “except as otherwise expressly provided by enactment of Congress”
language in § 3237(a) is intended to clarify “that for those criminal offenses that have
their own specific venue provisions”—for example, extraterritorial espionage offenses,
which may always be tried in the District of Columbia, see 18 U.S.C. § 3239—“the more
general criminal venue statutes do not replace them.” United States v. Loadholt, No. 24‐
cr‐670, 2025 WL 2962619, at *3 (S.D.N.Y. Oct. 21, 2025). But that language does not
indicate, as Sullivan urges, “that venue may be charged under only one of 18 U.S.C.
§ 3237 or § 3238.” Id. In other words, “the two venue statutes are not mutually
exclusive.” Hassanshahi, 185 F. Supp. 3d at 58 (cleaned up). And “because § 3238 is not
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 15 of 25
PageID.<pageID>

16
an express exception to § 3237(a), venue in [one] district does not become improper
simply because venue might also be proper elsewhere under § 3238.” Id. at 60.
Sullivan argues that both Hassanshahi and Loadholt are distinguishable inasmuch
as both “held that an essential conduct element of the charged crimes occurred in the
charging district, thereby making Section 3237 applicable.” Dkt. No. 49, at PageID.380.
And he contends that those cases “suffer[] from the same error in reasoning” when they
conclude that both § 3237 and § 3238 can apply when “all the essential conduct elements
[for a charged offense] occur outside the United States, even if some circumstance
element or effect continues into the United States.” Id. at PageID.381‐82. In Sullivan’s
view, that conclusion is not only wrong, but is also a violation of the constitutional
requirement that trials must take place in a locale where the crime occurred. See id.
(discussing United States v. Fortenberry, 89 F.4th 702, 709 (9th Cir. 2023)).
But the substance of Sullivan’s argument was rejected by the en banc court in
Lozoya. When the panel opinion in that case was issued, it held that venue could not lie
in the landing district because the charged assault had undisputedly concluded well
before the plane touched down. As a result, the panel reasoned that “Section 3237(a)
does not provide a basis for extending venue into the [landing district] simply because
[the flight] continued into its airspace after the offense was complete. Once the assault
had concluded, any subsequent activity was incidental and therefore irrelevant for
venue purposes.” United States v. Lozoya, 920 F.3d 1231, 1239 (9th Cir. 2019), rev’d en
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 16 of 25
PageID.<pageID>

17
banc, 982 F.3d 648 (9th Cir. 2020). Putting a finer point on its analysis, the panel
explained that even if the assault’s relationship to interstate commerce converted it into
a continuing offense, “the only essential conduct element . . . is the assault,” and the fact
of its occurrence aboard an aircraft “would not be a conduct element of the offense, but
rather a circumstance element that does not support venue.” Id. at 1239‐40 (cleaned up).
The en banc court reversed, explaining that “federal crimes committed on
commercial aircraft within the special aircraft jurisdiction of the United States” are
“continuing offenses under 18 U.S.C. § 3237,” and therefore may be “inquired of and
prosecuted in any district from, through, or into which [the aircraft] moves.” Lozoya,
982 F.3d at 653 (cleaned up). It was of no import that the assault in Lozoya could be seen
as having, as a matter of fact, concluded long before the plane landed; “[u]nder the
second paragraph of § 3237(a), venue was proper in the Central District of California,
through and into which the plane moved.” Id.
The same is true here. “[V]enue for a continuing offense is proper if an essential
conduct element of the offense begins in, continues into, or is completed in the charging
district.” United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012) (cleaned up). To
be sure, the essential conduct element of abusive sexual contact is the “knowing[]
engage[ment] in or caus[ation] [of] sexual contact.” 18 U.S.C. § 2244(a). But “a
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 17 of 25
PageID.<pageID>

18
continuing offense does not terminate merely because all of the elements are met.”3
Lukashov, 694 F.3d at 1121 (cleaned up). Even if, as in Lozoya, the physical act
constituting the abusive sexual contact began and ended while Alaska Flight 892 was
“out of the jurisdiction of any particular State or district,” 18 U.S.C § 3238, it continued
as a matter of law until the plane landed in Hawaiʻi, “through and into which the plane
moved.” Lozoya, 982 F.3d at 653. That makes venue appropriate in the District of
Hawaiʻi under § 3237. If the Constitution required otherwise, the en banc court’s
decision in Lozoya—upholding venue in a district where no act satisfying an essential
conduct element had occurred as a matter of fact—would work an unconstitutional
result instead of a valid fashioning of “a venue rule that is tethered to the Constitution.”
982 F.3d at 657; see also U.S. Const., art. III, § 2, cl. 3 (for crimes that are “not committed
within any State,” trial may be held “at such Place or Places as the Congress may by
3 	The requirement that venue must be laid where an “essential conduct element”
takes place ensures that trial is held where a proscribed act has occurred, as distinct
from where some preparation may have occurred. See, e.g., United States v. Beech‐Nut
Nutrition Corp., 871 F.2d 1181, 1190 (2d Cir. 1989) (“Whether the crime be continuing or
noncontinuing, venue is not proper in a district in which the only acts performed by the
defendant were preparatory to the offense and not part of the offense.”). Even when
the offense itself is continuing, the locus delicti of a nonessential element—including one
that continues elsewhere—cannot give rise to venue, because no criminal conduct has
yet occurred. See United States v. Ramirez, 420 F.3d 134, 140‐41 (2d Cir. 2005). But once
an essential conduct element occurs, it continues for venue purposes until the entire
offense terminates (which occurred here when the plane’s boarding doors were opened
back in Honolulu). Cf. Lozoya, 982 F.3d 648; see also Lukashov, 694 F.3d at 1121‐22. It is
not the case that venue is limited to the single location where an essential conduct
element of begins or otherwise occurs as a matter of fact, as Sullivan suggests. Were
that true, Lozoya would have come out differently.
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 18 of 25
PageID.<pageID>

19
Law have directed”). And while Sullivan may ultimately be correct that § 3238 also
applies to Count I, § 3237(a) and § 3238 are not mutually exclusive, as “every court . . .
to have considered the issue has concluded.” Hassanshahi, 185 F. Supp. 3d at 58.
Sullivan also attempts to resist the application of Lozoya on the ground that it is
distinguishable on its facts: whereas Lozoya dealt with a situation where an airborne
crime had been committed somewhere over the continental United States on a flight
between Minneapolis and Los Angeles, the alleged crime in this case took place over the
high seas. See Dkt. No. 40, at PageID.269. It is true that much of the discussion in
Lozoya centered around whether venue should lie in the district above which the crime
had occurred, but its holding was not so narrow. Lozoya instructs that when an offense
committed within the special aircraft jurisdiction of the United States begins outside of
the landing district, it nonetheless continues into it, because such crimes are continuing
offenses. That rule holds whether or not the offense begins over the high seas or
elsewhere out of the jurisdiction of any particular state or district.
“[U]nder 18 U.S.C. § 3237(a), venue for in‐flight federal crimes is proper in the
landing district.” Lozoya, 982 F.3d at 657. For that reason, Sullivan has failed to show
that § 3237 is inapplicable to Count I of the indictment. And because Count I on its face
suffices to show venue under § 3237, it cannot be dismissed.
//
//
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 19 of 25
PageID.<pageID>

20
B. 	Count II (Interference with Flight Crew Members and Attendants)
Sullivan repeats many of the same arguments in support of his motion to dismiss
Count II. But there is a key difference between Count I and Count II of the indictment:
whereas as Count I does not mention any venue provision, Count II expressly invokes
§ 3238. See Dkt. No. 1, at PageID.3. As noted, the parties agree that for venue to be
proper under § 3238, the government must establish that the defendant was arrested,
first brought, or maintains his last known residence in the district where trial is to be
held. Dkt. No. 34, at PageID.215‐17; Dkt. No. 39, at PageID.252‐53. Sullivan contends
that “[t]he indictment on its face does not contain a single factual allegation supporting
venue under Section 3238,” insofar as the government “does not allege that Mr. Sullivan
was arrested, was first brought in custody, or maintained his last known residence in
the District of Hawaiʻi.” Dkt. No. 34, at PageID.215. Based on this “failure to allege
facts supporting venue in this district” under § 3238, he urges the court to dismiss
Count II of the indictment. Dkt. No. 40, at PageID.274.
The government’s responses to this argument have shifted somewhat over time.
Initially, it argued that § 3238 validly applies to Count II because Sullivan was
“arrested” in the District of Hawaiʻi: when the plane returned to Honolulu, Sullivan
was escorted off the plane and held in the terminal while law enforcement conducted
an investigation. For his part, Sullivan vigorously disputes this characterization and
argues that his encounter with law enforcement in Hawaiʻi did not amount to an arrest
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 20 of 25
PageID.<pageID>

21
as a matter of law. See Dkt. No. 40, at PageID.260‐67. At the hearing, the government
confirmed its position and acknowledged that § 3238 could be a valid basis for venue,
see Dkt. No. 48, at PageID.338‐39, but argued in the alternative that venue is proper in
the District of Hawaiʻi under 18 U.S.C. § 3237(a) for the same reasons that support that
provision’s application to Count I. See also Dkt. No. 39, at PageID.254 (arguing that
venue lies under § 3237 in the alternative).
Towards the end of the hearing and in supplemental briefing afterwards, the
government pressed a new argument: it argued that § 3238 “does not apply in this
case.” Dkt. No. 50, at PageID.389. Observing that § 3238 “is triggered only in two
circumstances: when an offense is ‘begun or committed upon the high seas’ or when it
is committed ‘elsewhere out of the jurisdiction of any particular State or district,” it
offered two justifications for its position. Id. First, it read § 3238 to require offenses to
literally occur upon the “high seas,” which the government considered legally distinct
from the “high skies” above the high seas. Id. at 389‐90 & n.1. Second, it asserted that
Sullivan “has not [established] and cannot establish that his crimes were committed
‘elsewhere out of the jurisdiction of any particular State or district.” Id. at 390.
But Sullivan need not establish that his alleged crimes were fully or entirely
committed out of the jurisdiction of any state or district. That is because § 3238 applies
not only if an offense is “committed entirely on the high seas or outside the United
States,” but also, “of course, [if] the offense was begun there.” Lozoya, 982 F.3d at 655
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 21 of 25
PageID.<pageID>

22
(cleaned up and emphasis added). And as the government concedes, “the initial assault
occurred in international airspace over . . . the high seas.” Dkt. No. 50, at PageID.391.
There is no dispute, then, that the alleged conduct at a minimum began out of the
jurisdiction of any state or district. Whatever the merits of the government’s high seas‐
high skies distinction, it is beyond question that § 3238 by its terms applies to offenses
“begun or committed . . . out of the jurisdiction of any particular State or district,” and
therefore could apply here.
Nonetheless, in order to dismiss Count II, the court must reach two conclusions.
First, it must conclude that Sullivan is correct that the government has failed to allege
any facts that would support venue under § 3238. Second, it must conclude that
because the indictment explicitly invokes § 3238, the government cannot rely upon any
other valid venue provision, including § 3237(a).
Were the government still defending its indictment’s reliance on § 3238 for Count
II, it is not obvious the court could reach the first conclusion at this stage. On a pretrial
motion to dismiss for improper venue, the court’s “inquiry is limited to the adequacy of
the pleading.” Biao, 51 F. Supp. 2d at 1044. It is “bound by the four corners of the
indictment, must accept the truth of the allegations in the indictment, and cannot
consider evidence that does not appear on the face of the indictment.” Kelly, 874 F.3d at
1047. And if the indictment “alleges facts which, if proven, would have sustained
venue in the district of trial,” then it has no apparent venue defect. Ghanem, 993 F.3d at
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 22 of 25
PageID.<pageID>

23
1120 (cleaned up). And so while it may well be highly unlikely that the government
could ultimately prove, on the facts of this case, that Sullivan was under de facto arrest
while he sat in the airport in Honolulu on February 8, it is not obvious that the court
could properly make that factual determination in this pretrial posture. But the
government has now disavowed any reliance on § 3238, and that may be sufficient
reason alone to conclude that the government cannot satisfy § 3238.
But even if the court were to conclude that the government had failed to allege
facts supporting the theory that Sullivan was arrested in Hawaiʻi (and therefore failed
to sufficiently allege venue pursuant to § 3238), the question would remain whether the
government could rely upon § 3237 as a fallback. The court sees no reason to find that
the government cannot rely upon § 3237 for Count II as well as for Count I. As
discussed above, an indictment need not plead a venue statute at all. So unless there is
some meaningful distinction between the two counts, the reasoning that makes it
appropriate to apply § 3237 to Count I is equally available for Count II.
There is a distinction, but not a meaningful one: whereas Count I is silent as to
venue, Count II directly invokes § 3238. If Count II cannot support venue under § 3238,
the question is whether it can be saved because it contains sufficient factual allegations
on its face to substantiate venue under some other provision. Other courts that have
faced this precise circumstance have concluded that the government can indeed rely on
an alternative provision as a fallback if the cited basis for venue is lacking. See Loadholt,
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 23 of 25
PageID.<pageID>

24
2025 WL 2962619, at *1‐3 (rejecting an argument “based on the faulty premise that
venue can be established under only the specific statutory provision cited in the
Indictment, [18 U.S.C. § 3238]” where the indictment also “sufficiently alleged venue
under an alternative venue provision, 18 U.S.C. § 3237,” even though § 3237 was not
mentioned in the indictment).
That conclusion is the right one. It is well‐settled that, although Rule 7(c)(1)
requires an indictment to include a citation to the relevant statute the defendant is
alleged to have violated, “[i]t is the facts alleged, rather than the citation, that is
controlling.” 1 Wright & Miller’s Federal Practice & Procedure § 125 (5th ed. 2025). As
a result, courts “look to the indictment itself, and, if it properly charges an offense
under the laws of the United States, that is sufficient to sustain it, although the
representative of the United States may have supposed that the offense charged was
covered by a different statute.” Williams v. United States, 168 U.S. 382, 389 (1897); see also
United States v. Berger, 473 F.3d 1080, 1101 (9th Cir. 2007). In other words, an erroneous
citation is “immaterial” so long as the factual allegations “are embraced by some statute
in force.” Id. The upshot is that an error in an indictment’s citation of the relevant
criminal statute can be a harmless variance, causing the defendant no prejudice so long
as the indictment contains sufficient factual matter to uphold the charge under some
other statute. See United States v. Fekri, 650 F.2d 1044, 1046 (9th Cir. 1981). If that can be
the case for an erroneous citation to an offense provision, which sets forth the elements
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 24 of 25
PageID.<pageID>

25
that must be proven beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364 (1970),
the same must be true when it comes to venue—a non‐elemental fact that must be
proven at trial by a mere preponderance of the evidence, United States v. Douglas, 996 F.
Supp. 969, 972 (N.D. Cal. 1998).
Accordingly, the court concludes that even if Count II fails to sufficiently allege
venue under § 3238, that count is not facially defective so long as it provides venue
pursuant to § 3237. And for the reasons discussed earlier, the court finds that the facts
alleged in Count II are indeed sufficient on their face to establish that venue is proper
under § 3237.
CONCLUSION
For the foregoing reasons, Sullivan’s motion to dismiss is DENIED.
IT IS SO ORDERED.
DATED: March 3, 2026, at Honolulu, Hawaiʻi.
______________________________________________________________________________
Cr. No. 25‐00048 MWJS; United States of America v. John Lawrence Sullivan; ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
Case 1:25-cr-00048-MWJS Document 51 Filed 03/03/26 Page 25 of 25
PageID.<pageID>