Vanderbilt Law Review

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Consider the following scenario: USA Oil, an American company incorporated in Delaware with its principal place of business in California, has been conducting ongoing oil drilling operations in the Gulf of Mexico. The company operates three oil platforms off the Texas coast. One is located two miles offshore, another six miles offshore, and the third ten miles offshore.

Federal authorities receive notice that on several occasions since the company began operating these rigs, it deliberately allowed large quantities of oil to leak into the Gulf from each of them. The government seeks to indict USA Oil on three counts of violating the Clean Water Act, as amended by the Oil Pollution Act of 1990. The U.S. Attorney's office in the Southern District of Texas coordinates the investigation as all relevant documents, witnesses, and evidence are located in that district. All of USA Oil's executive officers reside near the company's principal place of business in San Diego, in the Southern District of California. The rig foreman in charge of USA Oil's Gulf of Mexico operations at the time the violations occurred has since left the company and now lives and works for another company near Prudhoe Bay, in the District of Alaska.

Where should the government file the indictments? The United States Constitution requires that the trial be held in the district in which the crime was committed, and the government must prove that venue is proper by a preponderance of the evidence. Failure to prove venue in a criminal trial precludes a conviction, and if a verdict of acquittal results from that failure, such failure leads to a double jeopardy bar to reindictment in the appropriate district. Therefore, the government must make an airtight determination at the outset of the prosecution as to where proper venue lies.

There are three separate venue provisions for the trial of federal crimes. 18 U.S.C. § 3237 stipulates that venue for offenses begun in one district and completed in another, or for offenses committed in more than one district, lies in any of the districts in which the crime occurred. However, it is the other two provisions which are relevant to the problem of venue for crimes committed offshore but within the territorial sea of the United States. Federal Rule of Criminal Procedure 18 ("Rule 18") sets venue for crimes committed within a single judicial district, while 18 U.S.C. § 3238 ("Section 3238") applies to crimes committed outside of any judicial district. In the face of the current ambiguity as to the limits between state and domestic federal sovereignty in the marginal seas, there is presently no point at which a definitive geographic line can be drawn dictating where Rule 18 ends and Section 3238 begins. Though in the past there have been few federal criminal prosecutions of environmental crimes committed in the territorial sea, several U.S. Attorney's Offices have become more active in this area, and the Environmental Crimes Section of the United States Department of Justice recently formed a Vessel and International Pollution Unit specifically to address these crimes. Thus, the frequency of prosecutions of this type will probably increase in the near future, placing an even greater premium on the need for a clear resolution of this issue.

This Note explores the question of venue for crimes committed offshore but within the twelve-mile seaward limit of federal territorial jurisdictions for the purpose of determining where the seaward limit of the federal judicial district lies and thus where Rule 18 ends and Section 3328 begins. Part II discusses Rule 18 and Section 3238 and illustrates the importance of fixing the location of state boundaries in order to make the proper choice between the two provisions. Because there is no definite answer to the seaward extent of state territory, the possibilities must be extracted from the historical development of legal doctrines regarding offshore boundaries. Therefore, Part III examines the history of the territorial sea and the development of offshore federalism. Part IV discusses the various possible limits of state territory and analyzes the implications of each in the context of the USA Oil hypothetical. Part V proposes a new paradigm for offshore criminal venue that unravels the web of uncertainty currently plaguing the issue.