Misdemeanor Trial for On-Board Assault Properly Venued in District Where Plane Landed, Holds En Banc Ninth Circuit

In United States v. Lozoya, No. 17-50336 (9th Cir. Dec. 3, 2020), the Ninth Circuit holds 8-3 that the prosecution of an on-board misdemeanor is venued, under 18 U.S.C. § 3237(a), in the district where the plane lands and not the flyover district where the crime occurred.

During a Minneapolis-to-Los Angeles flight, defendant Lozoya “wanted to sleep, but claimed the passenger behind her, Oded Wolff, kept jabbing at his touchscreen monitor attached to the back of her seat. Each jab startled her awake. In the middle of the flight—Lozoya estimated an hour before landing, her boyfriend about two hours, and a flight attendant ninety minutes—Lozoya turned to Wolff, who had just returned from the bathroom, and asked him to stop banging on her seat. An argument ensued, and Lozoya slapped Wolff’s face.”

No one was certain where in airspace the slap occurred, but it was stipulated not to be in the Central District of California, where the plane landed at LAX. Wolff filed a complaint with the FBI, and Lozoya was charged with misdemeanor assault. She was prosecuted in Los Angeles, “convicted and sentenced to pay a fine of $750.” On appeal, Lozoya argued that the Central District of California was improper venue, and that she should have been charged in the district of the airspace where the crime occurred.

The court majority affirms the conviction, holding that venue was proper at the final destination.

It first considers (1) the Venue Clause of Article III, Section 2, which provides that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed”; and (2) the Sixth Amendment’s Vicinage Clause further requires that the defendant be tried by an “impartial jury of the State and district wherein the crime shall have been committed.”

It holds that neither clause compels the holding that a state or district includes airspace. “Indeed, the very purpose of the Constitution’s venue provisions—to protect the criminal defendant from ‘the unfairness and hardship to which trial in an environment alien to the accused exposes him’—is thwarted by limiting venue to a flyover district in which the defendant never set foot.”

The majority then turns to the statutory law. 18 U.S.C. § 3237(a), the section that the majority holds applies to this crime, provides that “[a]ny offense involving . . . transportation in interstate or foreign commerce . . . 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 . . . moves.”

The Tenth and Eleventh Circuits had previously held that this provision applies to in-flight crimes because they occur on transportation in interstate commerce. That outcome is favored by “the near-universal practice of landing district prosecution” and the common-sense outlook that landings are “where arrests are made and witnesses interviewed, and is often the defendant’s residence or travel destination.”

The majority finds that “[a] flyover venue rule would unreasonably burden the victims of in-flight crimes and the interests of justice. Of particular concern are victims of sexual assault. According to the FBI, reports of sexual assault on commercial flights are at an all-time high. Sexual assaults are most common on long-haul flights when the victim is sleeping and covered by a blanket or jacket. Sometimes there are no witnesses. Victims report waking up disoriented and realizing in horror that they were assaulted by a seatmate. Proving the precise time of an assault could be impossible, and a flyover venue rule could mean no prosecution at all.”

Dissenting in part and concurring in the judgment, Judge Ikuta would hold that the correct venue statute was 18 U.S.C. § 3238, not § 3237(a), and thus a trial for an assault is venued where the defendant “is arrested or is first brought.” The dissent expresses concern that the majority’s reliance on section 3237(a) “creates serious constitutional problems that could easily be avoided.”

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