United States v. Lozoya, 17-50336

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 982 F.3d 648
• Docket Number: No. 17-50336,17-50336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Monique A. LOZOYA, Defendant-Appellant.
• Decision Date: 03 December 2020

982 F.3d 648

UNITED STATES of America, Plaintiff-Appellee,
v.
Monique A. LOZOYA, Defendant-Appellant.

No. 17-50336

United States Court of Appeals, Ninth Circuit.

Submitted En Banc May 26, 2020^* San Francisco, California
Filed December 3, 2020

BENNETT, Circuit Judge:

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Defendant Monique Lozoya committed an assault on an airplane. She was traveling on a commercial flight from Minneapolis to Los Angeles when she argued with another passenger and slapped him in the face. Lozoya was convicted of misdemeanor assault in the Central District of California, where the plane landed. On appeal, Lozoya argues that venue in the Central District was improper because the assault did not occur in airspace directly above the Central District. We hold that venue for in-flight federal offenses is proper in the district where a plane lands, and affirm Lozoya's conviction.

FACTS AND PROCEDURAL BACKGROUND

On July 19, 2015, Lozoya and her boyfriend were flying home to California from Minneapolis. Their Delta Airlines flight to Los Angeles was scheduled for about three-and-a-half hours, the route taking them over Minnesota, Iowa, Nebraska, Colorado, Utah, Arizona, Nevada, and California.

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. Flight attendants intervened. After the plane landed at LAX, Lozoya and Wolff went their separate ways. Wolff reported the incident to the FBI, which issued Lozoya a violation notice charging her with misdemeanor assault within the special aircraft jurisdiction of the United States. See 18 U.S.C. § 113(a)(5) ; 49 U.S.C. § 46506.

Lozoya's bench trial took place in the flight's landing district, the Central District of California. After the government rested, Lozoya moved for acquittal, claiming the government had not established venue in the Central District. See Fed. R. Crim. P. 29. The magistrate judge presiding over the trial denied the motion and ruled that venue was proper because the flight "came to an end" in the Central District. Lozoya was convicted and sentenced to pay a fine of $750. She then appealed to the district court, again arguing that venue was improper in the Central District. The district court found that venue was proper because the plane had landed in the Central District and affirmed the conviction. A divided three-judge panel of our court, however, agreed with Lozoya that venue was improper and reversed the conviction on that ground. United States v. Lozoya , 920 F.3d 1231, 1243 (9th Cir. 2019). We took this case en banc.

We have jurisdiction under 28 U.S.C. § 1291 and review de novo whether venue was proper in the Central District of California. See United States v. Ruelas-Arreguin , 219 F.3d 1056, 1059 (9th Cir. 2000). "Venue is a question of fact that the government must prove by a preponderance of the evidence." United States v. Lukashov , 694 F.3d 1107, 1120 (9th Cir. 2012).

982 F.3d 651

DISCUSSION

The assault took place on a commercial flight in the "special aircraft jurisdiction of the United States." 49 U.S.C. § 46501(2). Decades ago, at the onset of the "age of jet aircraft," Congress recognized that crimes committed in the skies raise difficult questions: "Although State criminal statutes generally cover crimes committed on board aircraft in flight over the State, the advent of high-speed, high-altitude flights of modern jet aircraft has complicated the problem of establishing venue for the purposes of prosecution. In some recent instances, serious offenses have gone unpunished because it was impossible to establish to any reasonable degree of accuracy the State over which the crime was committed." H.R. Rep. 87-958 (1961), reprinted in 1961 U.S.C.C.A.N. 2563, 2564. Congress chose to federalize certain offenses committed on airplanes, including murder, sexual assault, and Lozoya's crime—simple assault. See id. at 2563; 49 U.S.C. § 46506.

Lozoya contends that venue is proper only in the federal district over which the in-flight assault occurred, which was not the Central District.¹ We reject that contention. Under 18 U.S.C. § 3237(a), venue is proper in the landing district, here the Central District of California. Thus, we affirm Lozoya's conviction.²

I. Constitutional Requirements

Criminal venue mattered to the Framers, who complained in the Declaration of Independence that King George transported colonists "beyond Seas to be tried." The Declaration of Independence, para. 21 (U.S. 1776). The Framers designed a system that requires trial in the vicinity of the crime, "to secure the party accused from being dragged to a trial in some distant state, away from his friends, witnesses, and neighborhood." United States v. Muhammad , 502 F.3d 646, 652 (7th Cir. 2007) (quoting Joseph Story, Commentaries on the Constitution § 925 (Carolina Academic Press reprint 1987) (1833)).

The Constitution safeguards a criminal defendant's venue right in two places. The Venue Clause of Article III, Section 2 provides: "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." U.S. Const. art. III, § 2, cl. 3. 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." U.S. Const. amend. VI. Under these two provisions, criminal trials generally must take place in the same state and district where the crime took place. But if the crime was "not committed within any State," the Constitution provides that "the Trial shall be at such Place or Places as the Congress may by Law have directed." U.S. Const. art. III, § 2, cl. 3.

The Constitution does not discuss the airspace over the several states. Nor did the Framers contemplate crimes committed in the "high skies," even as they granted Congress the power to "define and punish

982 F.3d 652

Piracies and Felonies committed on the high Seas." U.S. Const. art. I, § 8, cl. 10. Lozoya's crime would have been alien to the Framers. It happened on an airplane flying almost 600 miles an hour, five miles above the earth. And it occurred over one of several states or districts, depending on the time of the slap.

In Lozoya's view, the Constitution requires trial in the district over which the plane was flying at the exact moment of the assault. Her crime was committed in the airspace above a district, the argument goes, so that district was the location of her crime. Implicit in this reasoning is an interpretation of Article III and the Sixth Amendment that a state or district includes the airspace above it for constitutional venue purposes. Lozoya was not tried in the flyover district but in the Central District of California, where the plane landed and where she lived and worked. Lozoya thus argues that venue was constitutionally improper because her trial did not take place in the state and district where her crime took place.

We disagree. Neither Article III nor the Sixth Amendment says that a state or district includes airspace, and there is, of course, no indication that the Framers intended as such.³ 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. United States v. Johnson , 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944).

For crimes committed on planes in flight, the Constitution does not limit venue to the district directly below the airspace where the crime was committed. And thus venue "shall be at such Place or Places as the Congress may by Law have directed."⁴ U.S. Const. art. III, § 2, cl. 3.

II. Statutory Requirements

18 U.S.C. § 3237(a) contains two paragraphs, each covering a different type of offense. First, "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." Id. Second, "[a]ny offense involving ... transportation in interstate or foreign

982 F.3d 653

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." Id.

Two of our sister circuits, the Tenth and the Eleventh, have held that the second paragraph of § 3237(a) applies to in-flight crimes because the crimes "took place on a form of transportation in interstate commerce." United States v. Breitweiser , 357 F.3d 1249, 1253 (11th Cir....