U.S. v. Lozoya

• Decision Date: 11 April 2019
• Docket Number: No. 17-50336,17-50336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Monique A. LOZOYA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

920 F.3d 1231

UNITED STATES of America, Plaintiff-Appellee,

v.Monique A. LOZOYA, Defendant-Appellant.

No. 17-50336

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2019 Pasadena, California

Filed April 11, 2019

M. SMITH, Circuit Judge:

Defendant-Appellant Monique A. Lozoya was convicted of assaulting a fellow passenger on a commercial flight from Minneapolis to Los Angeles. Following several months of pretrial activity, the government filed a superseding information charging Lozoya with simple assault, a Class B misdemeanor. At a bench trial, the magistrate judge rendered a guilty verdict, and the district court subsequently affirmed the conviction. We hold that venue was not proper in the Central District of California, and therefore reverse Lozoya’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

On the evening of July 19, 2015, Lozoya and her boyfriend, Joshua Moffie, flew on Delta Airlines Flight 2321 from Minneapolis to Los Angeles. Lozoya sat in the middle seat of the second-to-last row on the aircraft’s starboard side; Moffie occupied the aisle seat to her left, while another passenger, Charles Goocher, sat in the window seat to her right. Oded Wolff, traveling with his wife Merav and their family, sat immediately behind Lozoya in the middle seat of the last row, with Merav in the window seat to his right.

As Flight 2321 soared above the Great Plains, Lozoya wanted to sleep. However, her attempts at slumber were foiled because the passenger behind her—Wolff—repeatedly jostled her seat. This purported annoyance was verified by Goocher, who recalled that "the people that were behind us were causing commotion behind—behind our chairs, wrestling around with their stuff .... hitting the chairs, the tray up and down, up and down, up and down." Wolff denied causing a commotion; instead, he claims that, after tapping the TV screen on the back of Lozoya’s seat in a vain attempt to turn it off, he and Merav went to sleep.

The incident that led to this appeal occurred later in the flight, when Wolff and his wife left their seats to use the lavatory. While the pair was away, Lozoya told Moffie about the jostling. Although Moffie offered to say something, Lozoya opted instead to speak to Wolff herself when he returned to his seat. Lozoya claimed that when Wolff returned, while she was still seated, she turned to her left to address the standing Wolff and politely asked him to stop hitting her seat, to which Wolff abrasively shouted "What?" and "quickly" moved his hand to within a half-inch of her face. Lozoya testified, "I got really scared and nervous, and I didn’t know what was going on, and it felt like he was about to hit me," and so "without even thinking ... pushed him away" with an open palm, which made contact with Wolff’s face. Wolff and Merav, by contrast, testified that Wolff’s hands were resting on the seats behind and in front of him, and that Lozoya yelled at him to stop tapping his TV screen and then hit him with the back of her hand, causing his nose to bleed.

As the various parties responded in shock to the incident, flight attendant Divone Morris approached them to calm the situation, and lead flight attendant Terry Sullivan began to investigate. Sullivan spoke with Lozoya and Wolff, and asked the latter if he preferred to file charges or would instead accept an apology from Lozoya. Wolff agreed to meet with Lozoya at the airport after the flight, and indicated that he would listen to her explanation before deciding whether to accept an apology. However, after discussing the issue with Moffie, Lozoya decided against meeting with Wolff, and left the airport without apologizing.

II. Procedural Background

A. Pretrial

In August 2015, about three weeks after the incident on Flight 2321, FBI special agent Meredith Burke, who had investigated the assault and interviewed the participants, issued Lozoya a violation notice charging her with assault pursuant to 18 U.S.C. § 113(a)(4). Because the maximum custodial status of this offense is one year, it is classified as a Class A misdemeanor. 18 U.S.C. § 3559(a)(6). Burke also prepared a fourteen-page statement of probable cause detailing her investigation. She dated the statement August 7, 2015.

On September 16, 2015, Lozoya was arraigned before a magistrate judge. Although the judge granted Lozoya’s request for counsel, he also required a monthly contribution of $200 towards attorneys’ fees. Lozoya pleaded not guilty, and the magistrate judge set a trial date of February 4, 2016. The judge warned Lozoya, "[I]f you fail to appear on the date of your trial, that will result in the issuance of an arrest warrant," but set no bond.

On January 14, 2016, approximately four months after the arraignment, Lozoya moved to dismiss the case. She argued that the government failed to comply with the Federal Rules of Criminal Procedure, which require that "[t]he trial of a misdemeanor [ ] proceed on an indictment, information, or complaint," Fed. R. Crim. P. 58(b)(1), and that under the Speedy Trial Act (the Act), the government should have filed an indictment or information within thirty days of her arraignment. The government opposed the motion, arguing that the Act had not been triggered because "the issuance of a violation notice does not trigger the Speedy Trial Act." It also claimed that the procedure it employed in Lozoya’s case was consistent with standard practices, which Lozoya countered was incompatible with both the Act and the Central District of California’s internal guidelines.

On February 1, 2016, before the magistrate judge heard Lozoya’s motion to dismiss, the government filed an information charging her with the Class A misdemeanor.

Three days later—the date set for trial—the magistrate judge first addressed Lozoya’s pending motion. The judge denied the motion, determining that, under United States v. Boyd , 214 F.3d 1052 (9th Cir. 2000), the issuance of a notice violation

did not constitute a complaint and did not start the running of the 30-day clock. ... The fact that there was arguably an arrest as that term is used under the Speedy Trial Act Plan here in the Central District does not meet the requirement for a complaint, which is a separate requirement from the issue of an arrest.

Even if there had been a violation of the Act, the judge continued, he would not have dismissed the case with prejudice. Because the government had filed the subsequent information, the judge granted its motion to dismiss the violation notice without prejudice.

Lozoya was arraigned on the Class A misdemeanor information on February 9, 2016, at which time she pleaded not guilty.¹

Subsequently, Lozoya filed two additional motions to dismiss the information with prejudice, again arguing that the Act had been violated. At a February 29, 2016 hearing on the motions, the government offered to "file a superseding information and make it a Class B" misdemeanor, which would "eliminate all the Speedy Trial Act problems." The magistrate judge then indicated that she would reject Lozoya’s request to dismiss the case with prejudice, noting that "consideration of the seriousness of the offense, the facts and circumstances of this case, and the impact of the reprosecution, particularly in light of the fact that it’s now going to be a Class B misdemeanor, does not warrant a dismissal with prejudice." The judge ultimately decided to defer ruling on the issue until after the government responded to Lozoya’s third motion to dismiss and filed a new information.

Soon thereafter, the government filed the superseding information charging Lozoya with simple assault in violation of 18 U.S.C. § 113(a)(5), a Class B misdemeanor. The magistrate judge then denied Lozoya’s outstanding motions to dismiss, and arraigned Lozoya on the superseding information on April 5, 2016.

B. Trial

At the bench trial, the government called Wolff and Merav, as well as Sullivan (the lead flight attendant) and Burke (the FBI special agent who investigated the incident). After the government rested, Lozoya moved for acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that venue in the Central District of California was improper. The magistrate judge denied the motion, stating that "[a]ny offense that involves transportation in interstate or foreign commerce is a continuing offense and may be prosecuted in any district from, through or into which such commerce moves," and concluding that "to establish venue, the government only needs to prove that the crime took place on a form of transportation in interstate commerce." As part of her defense, Lozoya called Morris (another flight attendant), Goocher (the passenger who sat next to Lozoya on the flight), and Moffie (her boyfriend), and testified on her own behalf.

Before pronouncing judgment, the magistrate judge acknowledged that "[t]his is really an unfortunate situation borne out of a misunderstanding in a situation that I think almost anybody that flies commercially can relate to." Nevertheless, she concluded that "in this case there was sufficient evidence to establish that the defendant struck the victim on his face, and ... striking the victim would be sufficient to meet the standard for simple assault."

She also found that

defendant’s testimony and her statements to the special agent and to the flight attendants contained inconsistencies regarding her perceived threat from the victim, and also the Court found that the testimony of the defendant’s witnesses were themselves inconsistent and failed to establish beyond a reasonable doubt that the defendant was in a position where she felt threatened.

Thus, the magistrate judge concluded that, as to the issue of self-defense, "based on the testimony presented [ ] the defendant used more force than what was reasonably necessary to defend herself against what she perceived to be a threat to her physical safety." The judge therefore found Lozoya guilty of simple assault.

C. Post-Trial

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