In-Flight Federal Crime May Be Tried Where Plane Lands
By Sandra Hong Staff Writer
A crime allegedly committed during a commercial flight is not limited to prosecution where the plane was passing over at the moment the conduct occurred and may be prosecuted in the venue in which the plane lands, the Ninth U.S. Circuit Court of Appeals, sitting en banc, held yesterday.
The opinion by Judge Mark J. Bennett affirms a judgment of conviction of Monique Lozoya, who was found guilty in the District Court for the Central District of California of a misdemeanor assault. She slapped a fellow passenger across the face during a Delta Airlines flight from Minneapolis to Los Angeles in 2015.
Judge Sandra S. Ikuta wrote a partial dissent, joined by Judges Daniel B. Collins and Kenneth K. Lee. Ikuta agreed that trial of the action where the landing took place was proper but insisted that the majority relied upon the wrong statute.
The Ninth Circuit affirmed a Sept. 8, 2017 order by District Court Judge Andre Birotte Jr. affirming Magistrate Judge Alka Sagar’s Aug. 12, 2016 conviction of Lozoya and her sentence of the defendant to a $750 fine.
The Ninth Circuit’s previous three-judge panel opinion, authored by Judge Milan D. Smith Jr., reversed Lozoya’s conviction on the basis of Art. III §2 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.”
Smith concluded venue was proper only in the district through which the plane was passing when the assault occurred, which required prosecutors to “dust off its navigational charts” in order to pinpoint where in U.S. airspace Lozoya smacked Oded Wolff after he refused to stop jabbing at the touchscreen monitor mounted to the back of her seat.
But Bennett said the Constitution does not contemplate that navigational charts be used to determine venue for in-flight crimes, declaring:
“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.…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.”
Bennett pointed to the rest of the Art. III section cited by Smith, which provides if the crime was “not committed within any state,” then “the trial shall be at such place or places as the Congress may by law have directed.”
Other Circuit Holdings
Two sister circuits have held 18 U.S.C. §3237(a) applies to in-flight crimes because the offenses took place on a form of interstate transportation, Bennett noted, adding:
“We join the Tenth and Eleventh Circuits and conclude that the second paragraph of 18 U.S.C. §3237(a) applies to federal crimes committed on commercial aircraft within the special aircraft jurisdiction of the United States.”
The statute provides “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.”
Bennett determined that a plain reading of that section rendered the Central District of California a proper venue to prosecute Lozoya and that such a conclusion was consistent with a “near-universal practice of landing district prosecution.”
“For decades, and since Congress federalized certain offenses committed in the air, federal offenders have been prosecuted and tried in the landing districts. Venue in the landing district is plainly sensible: it is where arrests are made and witnesses interviewed, and is often the defendant’s residence or travel destination.”
In her partial dissent, Ikuta said that reliance on §3237(a) would allow for Lozoya to be tried in any district the plane flew over between Minneapolis and Los Angeles, which is “inconsistent with the purposes of the Venue Clause.”
“In short, the majority’s reading of §3237(a) as providing the venue for point-in-time offenses that could occur in a single state is not plausible. It conflicts with the most natural reading of §3237(a), which is that it provides the venue for a trial of ‘continuing offenses,’ meaning offenses that occurred in multiple states.”
Ikuta said 18 U.S.C. §3238—which applies to offenses “not committed within any state”—is the appropriate venue provision. It says:
“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…is arrested or is first brought.…”
“It is a mystery why the majority relies on a venue statute that obviously does not apply to discrete criminal offenses in navigable airspace, instead of a statute that has provided venue for offenses ‘not committed within any State’ since the beginning of our nation. Section 3238’s text and history indicate that it governs those offenses, and applying § 323S is more consistent with Article Ill’s purposes than applying § 3237(a).”
Bennett countered that §3238 pertains only to offenses committed on the high seas or committed outside the U.S.
“Lozoya’s offense was not committed on the high seas, and for obvious reasons, we decline to hold that airspace above the United States is ‘outside the United States,’ ” he wrote.
The case is United States v. Lozoya, 17-50336.
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