Friday, April 12, 2019
Majority: Venue Does Not Lie in Central District of California Where Onboard Assault Occurred Elsewhere
Dissenter: Statute Must Be Interpreted to Permit Trial Where Plane Lands in Order to Avoid Absurd Result
By a MetNews Staff Writer
If a crime is committed on an airplane in flight, the defendant must be tried in whatever federal district the craft is flying over, the Ninth U.S. Circuit Court of Appeals held yesterday, with the majority acknowledging that its decision creates a “creeping absurdity” but one which, it declared, is legally compelled.
The decision—which creates a split among the circuits—reverses the conviction in the District Court for the Central District of California of Monique A. Lozoya for a misdemeanor assault on a fellow passenger on a flight from Minneapolis to Los Angeles. It is not presently known what district was below when the incident took place but, Circuit Judge Milan D. Smith Jr. said in the majority opinion, “there is no doubt that the assault did not occur within the Central District of California.”
Smith wrote for himself and District Court Judge Benjamin H. Settle of the Western District of Washington, sitting by designation. Circuit Judge John B. Owens wrote a “partial concurrence and partial dissent,” which was essentially a dissent.
Lozoya—whose assault was prompted by the passenger behind her, Oded Wolff, repeatedly jostling her seat, was convicted by Magistrate Judge Alka Sagar and sentenced to pay a fine of $750 and a special assessment of $10. If the government wants to retry Lozoya, Smith said, it will need to dust off its navigational charts and ascertain where in U.S. airspace her hand made contact with Wolff’s face.”
Smith pointed to Art. III of the U.S. Constitution which provides:
“The Trial of all Crimes...shall be held in The State where the said Crimes shall have been committed.”
The jurist also cited the Ninth Circuit’s 1973 decision in United States v. Barnard. There, the defendants were convicted of five counts involving importation of marijuana from Mexico.
Venue properly lied in the Southern District of California, the appeals court held, based on flights over that district, explaining that “the navigable airspace above [a] district is a part of the district.”
Magistrate Judge’s Reasoning
Sagar found that venue lied in the Central District based on two statutes. One upon which she relied was 18 U.S.C. §3237(a), which provides, in part:
“Any 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.”
Finding the statute inapposite, Smith said:
“The government maintains that ‘[b]ecause the charged offense involved transportation in interstate commerce, it was a continuing offense’ for purposes of § 3237(a). This assertion is untenable, however, because although the assault occurred on a plane, the offense itself did not implicate interstate or foreign commerce….Here, the conduct constituting the offense was the assault, which had nothing to do with interstate commerce.”
Smith acknowledged that decisions of the Tenth and Eleventh circuits are to the contrary, but said “the reasoning in those cases is not persuasive.”
Place of Arrest
The magistrate judge also found venue was proper in light of 18 U.S.C. §3238, which provides:
“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, or any one of two or more joint offenders, is arrested or is first brought.”
The plane landed in the Central District where Lozoya was arrested.
“Here, the assault occurred entirely within the jurisdiction of a particular district. It neither began nor was committed entirely outside the United States, and so § 3238 is inapplicable.”
“We acknowledge a creeping absurdity in our holding. Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide—or some other nightmare at 20,000 feet—that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity. How feasible would it be for the government to prove venue in such cluttered airspace?”
He went on to say:
“Congress can—consistent with constitutional requirements, of course—enact a new statute to remedy any irrationality that might follow from our conclusion.”
“While I agree with much of the majority opinion, I disagree with its ultimate holding on venue, which creates a circuit split and makes prosecuting crimes on aircraft (including cases far more serious than this one) extremely difficult.”
He remarked that the wording of §3237(a) “could be clearer” but “considering what the majority recognizes as the ‘creeping absurdity’ of its position,” the court should follow the rule set forth by the U.S. Supreme Court and echoed on Ninth Circuit opinions that statutes should be interpreted in such a manner as to avoid “absurd results.”
(In a footnote, Smith responded that the “canon” that absurd results be averted “does not permit us to ignore the plain texts of the statutes at issue.”)
Owens went on to say:
“I agree with the Tenth and Eleventh Circuits that the “transportation in interstate...commerce” language in § 3237(a) covers the conduct at issue here.”
‘Makes No Sense’
The jurist expressed the view that “limiting venue to a ‘flyover state,’ where the defendant and potential witnesses have no ties, makes no sense.”
He quoted the First Circuit as saying in its 1982 decision in United States v. Hall that a prosecution in the district where the plane lands “creates no unfairness to defendants,” adding that “a defendant who is truly inconvenienced may request a transfer of venue.”
“I respectfully dissent, and urge the Supreme Court (or Congress) to restore quickly the just and sensible venue rule that, until now, applied to domestic air travel.”
The case is United States v. Lozoya, 17-50336.
Copyright 2019, Metropolitan News Company