CRIMINAL PROCEDURE AT 30,000 FEET: FINDING A PROPER VENUE FOR CRIMES COMMITTED DURING AIR TRAVEL

By: Ryan Plasencia, Volume 104 Staff Member

Commercial air travel is ubiquitous and essential to the American traveler. Indeed, in 2017 alone, United States citizens accounted for 632 million flight passengers.[1] Outside of the occasional delay or cancellation, the vast majority of these flights were smooth, if mundane, experiences for passengers.

But the experience of passengers (and crew) on July 19th, 2015’s Delta Airlines Flight 2321 from Minneapolis to Los Angeles was anything but mundane.[2] On this particular flight, allegedly poor passenger etiquette ended in bloodshed for one traveler and an assault conviction for another.[3] As a result of this dispute, four years later the Ninth Circuit Court of Appeals was left to answer a deceptively difficult and interesting question for U.S. criminal law in the modern day:[4] Where is venue proper when a crime occurs during air travel?

I.  THE U.S. CONSTITUTION & STATUTORY SCHEME AND CRIMINAL VENUE

Venue’s constitutional underpinnings are based in Article III[5]  and the Sixth Amendment.[6] In short, criminal defendants have a constitutional right to a proceeding in a district the crime occurred in, and (if they so choose) a jury made up of citizens from that district. This right is grounded in fairness considerations, ensuring that a criminal defendant is not tried in a place completely foreign to the alleged crime.

In cases of irregularity (such as when a single crime occurs in multiple districts), Congress has passed certain statutes which clarify proper venue. One of these statutes is 18 U.S.C. § 3237, captioned “[o]ffenses begun in one district and completed in another.”[7] In cases dealing with crimes during air travel, § 3237(a) has been the irregular venue statute at issue. Section 3237(a) can be divided into two relevant prongs. The Temporal Prong reads: “[A]ny offense . . . begun in one district and completed in another, or committed in more than one district, may be . . . prosecuted in any district in which such offense was begun, continued, or completed.” And the Commerce Prong reads: “Any offense involving the use of . . . 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.” However, courts have not been universal as to how § 3237(a) applies to crimes committed during air travel.

II.  UNITED STATES V. LOZOYA

A. Background

During Monique Lozoya’s nearly 4 hour flight from Minneapolis to Los Angeles,[8] her attempts to rest were repeatedly foiled.[9] Lozoya claimed that man sitting directly behind her, Oded Wolff, was repeatedly jostling her chair, interrupting her nap.[10] After a few hours of patiently accepting this annoyance, Lozoya finally had enough and decided to confront Wolff. What happened next, while disputed by the parties,[11] culminated with Lozoya being charged with misdemeanor assault.[12]

Lozoya was charged in the Central District of California, the district which housed her flight’s destination, Los Angeles. At trial, Lozoya quickly moved for an acquittal claiming that venue was improper in LA.[13] Lozoya’s argument hinged on the government’s inability to prove that her flight was in the airspace of the Central District of California when the alleged assault occurred.[14]

However, a magistrate judge denied Lozoya’s motion, finding that venue was proper in a flight’s “destination district” when an offense occurred during air travel, regardless of its geographic location.[15] Eventually, Lozoya was found guilty of assault, and appealed the magistrate judge’s venue decision, among other issues, to the Ninth Circuit.

B. Relevant Case Law

Though the question of proper venue for air travel crimes was one of first impression for the Ninth Circuit, the Tenth[16] and Eleventh[17] Circuits both had previously analyzed this problem. The Eleventh Circuit was first to confront the issue in 2004’s United States v. Breitweiser.[18]

In Breitweiser, the Eleventh Circuit found that 18 U.S.C. § 3237 supported venue in a flight’s destination district.[19] In applying the statute, the Eleventh Circuit said the government had successfully proven that “the crime took place on a form of transportation in interstate commerce.”[20] Therefore, to establish venue, the government needed only to “show[] that Breitweiser committed the crimes while on an airplane that ultimately landed in Georgia.”[21]

In other words, the Eleventh Circuit held that regardless of the (non-) integral nature of interstate commerce (the flight itself) in the crime’s elements,[22] any crime committed while engaged in air travel is a “continuing offense” for the duration of the flight, and may be charged in any district over which the plane travels—including the destination district. The Tenth Circuit agreed when it addressed this issue in 2012.[23]

C. Lozoya’s Appeal to the Ninth Circuit

On Lozoya’s appeal, the Ninth Circuit declined to follow the precedents set by the Tenth and Eleventh Circuits, calling the decisions “not persuasive.”[24] The Court then undertook its own analysis of 18 U.S.C. § 3237.[25]

The Court first looked at § 3237(a)’s Temporal Prong.[26] The Ninth Circuit held that this portion of § 3237 could not, and was not intended to, apply to a crime like assault because “[b]y its plain text and obvious meaning it concerns continuing offenses that occur in multiple districts.”[27] And in this case, the assault “occurred in an instant and likely in the airspace of only one district.”[28] The Court argued that an instantaneous crime could not be “continuing” after the elements of the crime were completed, regardless of where the crime occurred—air or ground.

The Ninth Circuit then turned to the second paragraph of § 3237(a), its Commerce Prong.[29] The Ninth Circuit argued that, in interpreting the Commerce Prong, the Breitweiser court had ignored the 1999 Supreme Court case United States v. Rodriguez-Moreno which held that the conduct of a charged offense was relevant to determining venue.[30] In ­­Rodriguez-Moreno, the Supreme Court stated that while determining venue, “a court must initially identify the conduct constituting the offense and then discern the location of the commission of the criminal acts.”[31] In other words, the Ninth Circuit believed that in order for § 3237(a)(¶ 2) to confer proper venue, a court must determine that “the nature of the crime” was explicitly linked to interstate commerce, rather than through some tangential or circumstantial link, as allowed by the Eleventh Circuit.[32]

Indeed, the Ninth Circuit interpreted the Commerce Prong to only apply if an alleged crime implicated interstate commerce because such commerce was necessary to complete the crime. “[A]lthough the assault occurred on a plane, the offense itself did not implicate interstate or foreign commerce . . . the conduct constituting the offense . . . had nothing to do with interstate commerce” and the fact the assault took place on an airplane was merely a “circumstance element that does not support venue.”[33] In essence, the Court held that the fact an assault occurred during transportation in interstate commerce did not mean interstate commerce was “involved” in the offense for the purposes of § 3237.[34] Thus, the Commerce Prong could not confer venue on any district the plane flew over, including the destination district, simply because it flew over that district.

The Ninth Circuit found, under current U.S. law, venue could only be proper in the district the plane was flying over at the moment the assault occurred.[35] The case was remanded for further proceedings.[36]

III.  ANALYSIS

The Ninth Circuit correctly interpreted the plain language of 18 U.S.C. § 3237, but unfortunately this interpretation created an irrational split among the circuits. Congress should correct this.

A. The Plain Language

When looking at the plain language of 18 U.S.C. § 3237, it is difficult to come to any conclusion other than that the Ninth Circuit correctly interpreted its meaning. The first prong of § 3237(a), the Temporal Prong— “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be . . . prosecuted in any district in which such offense was begun, continued, or completed”[37]—seems quite clearly meant to apply to crimes which are still being committed when district lines are crossed,[38] as the Ninth Circuit held.[39]

The second prong of § 3237(a), the Commerce Prong—“[a]ny offense involving the use of . . . 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”[40]— seems to turn on the definition of “involved.” Meriam-Webster defines “involve” as “to engage as a participant.”[41] This definition would indicate that an air travel crime would only apply under the Commerce Prong if the air travel was a “participant” in the crime. In other words, when a crime involves air travel as an essential element to its success, such as drug trafficking via air commercial air travel. This was the Ninth Circuit’s position, and it is the correct way to read the statute.

B. Policy

All of that said, just because the Ninth Circuit correctly read the language of § 3237, does not mean that this interpretation is good policy. In their decisions, the Tenth and Eleventh Circuits correctly addressed the difficulty the government may have in establishing what district a flight was over when a crime was committed. The Eleventh Circuit even claimed it may be “impossible” for the government to prove proper venue by a preponderance standard for certain crimes.[42]

Even the Ninth Circuit realized what it called the “creeping absurdity” in its holding.[43] For example, the Court fretted over “an inflight robbery or homicide . . . 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?”[44] Indeed, to pinpoint over which district an instantaneous crime occurs is difficult, particularly in areas with many small districts. When a crime occurs, flight crew not only have to deal with responding to and investigating the crime itself but, for venue purposes, would also need the presence of mind to mark down how much time remained in the flight and/or geographical coordinates at the time of the crime. And the government would still be left to piece together what is likely unreliable testimony from eyewitnesses.[45]

Additionally, the fairness underpinnings of venue requirements seem far less important in the case of air travel crimes. One could even make the argument that it is less fair (or certainly not fairer) to make a criminal defendant travel to a flyover district, rather than be able to stay in their destination for proceedings.

And given that the purpose of venue is to prevent ‘the unfairness and hardship to which trial in an environment alien to the accused exposes him,’[46] is it not fair to conclude . . . that setting venue in a district where a plane lands ‘creates no unfairness to defendants, for an air passenger accused of a crime of this type is unlikely to care whether he is tried in one rather than another of the states over which he was flying’?[47]

 

In fact, it is even likely that most defendants would prefer to be tried in their destination district rather than the flyover district. Many may call the destination district home, have family nearby, or just simply enjoy the area, hence the reason the defendant was traveling there in the first place. It is hard to see what fairness is being achieved by holding a proceeding in the flyover district.

C. Calling Congressional Action

The Ninth Circuit ended its opinion by calling on Congressional action. “Congress can . . .  enact a new statute to remedy any irrationality that might follow from our conclusion. Indeed [we hope] that Congress will address this issue by establishing a just, sensible, and clearly articulated venue rule for this and similar airborne offenses.”[48] Clearly, based on the obvious plain language yet conflicting policy considerations at play, this issue is ripe for Congressional action. Congress should, within the constitutional limits of Article III and the 6th Amendment, codify that venue is proper in destination districts for crimes occurring during air travel, either by amending 18 U.S.C. § 3237 or enacting a new statute. Both practical and fairness-to-defendant considerations support this action.

[1] Eric Rosen, Over 4 Billion Passengers Flew in 2017 Setting New Travel Record, Forbes (Sept. 8, 2018), https://www.forbes.com/sites/ericrosen/2018/09/08/over-4-billion-passengers-flew-in-2017-setting-new-travel-record/#597db28255b2.

[2] United States v. Lozoya, 920 F.3d 1231 (9th Cir. 2019).

[3] Id. at 1233

[4] Id. at 1238.

[5] U.S. Const. art. III, § 2, ¶ 3.

[6] U.S. Const. amend. VI.

[7] 18 U.S.C. § 3237 (2015).

[8] The Flight Time from Minneapolis to Los Angeles, FLightSphere, https://flightsphere.com/flight-time/from/minneapolis/to/los-angeles/(last visited Nov. 3, 2019).

[9] Lozoya, 920 F.3d at 1233.

[10] Id.

[11] Lozoya claimed Wolff approached her “quickly” and “abrasively” and in response she was forced to push him away with an open palm. Wolff countered that did nothing aggressive towards Lozoya, and she “hit him with the back of her hand, causing his nose to bleed.” Id. at 1233–34.

[12] Id. at 1234.

[13] Id. at 1235; see Defendant Motion for Acquittal, United States v. Lozoya, (C.D. Cal. 2016) (No. CR-16-0043-AS).

[14] Id.

[15] Lozoya, 920 F.3d at 1235.

[16] United States v. Cope, 676 F.3d 1219 (10th Cir. 2012).

[17] United States v. Breitweiser, 357 F.3d 1249 (11th Cir. 2004).

[18] 357 F.3d 1249 (11th Cir. 2004).

[19] Id. at 1253–54.

[20] Id.

[21] Id.

[22] For example, an assault which just happens to occur on an airplane, versus drug smuggling by using commercial air travel.

[23] Cope, 676 F.3d at 1224–25.

[24] United States v. Lozoya, 920 F.3d 1231, 1241 (9th Cir. 2019).

[25] Id.

[26] 18 U.S.C. § 3237(a)(¶ 1) (2015). See supra Part I.

[27] Lozoya, 920 F.3d at 1239 (emphasis in original).

[28] Id.

[29] 18 U.S.C. § 3237(a)(¶ 2) (2015). See supra Part I.

[30] United States v. Rodriguez-Moreno, 526 U.S. 275 (1999).

[31]Id. at 279.

[32] Lozoya, 920 F.3d at 1240

[33] Id. (emphasis added).

[34] Id.

[35] Id. at 1241.

[36] Lozoya, 920 F.3d at 1243.

[37] 18 U.S.C. § 3237(a)(¶ 1) (2015) (emphasis added).

[38] Such as a kidnapping offense.

[39] Theoretically, of course, § 3237(a)(¶ 1) could apply to a crime on an airplane—such as prolonged sexual harassment during a flight. But this does not mean that the crime would automatically be triable in the destination district.

[40] 18 U.S.C. § 3237(a)(¶ 2) (2015) (emphasis added).

[41] Involve, Merriam-Webster Dictionary (Oct. 28, 2019), https://www.merriam-webster.com/dictionary/involve.

[42] Breitweiser, 357 F.3d at 1253.

[43] Lozoya, 920 F.3d at 1242.

[44] Id.

[45] This could be made even more difficult in cases of traumatized victims. Id. at 1244 (Owens, J, dissenting in part) (“Asking a traumatized victim, especially a child, to pinpoint the precise minute when a sexual assault occurred is [unrealistic].”).

[46] Id. (citation omitted) (quoting United States v. Johnson, 323 U.S. 273, 275 (1944)).

[47] Id. (citation omitted) (quoting United States v. Hall 691 F.2d 48, 50–51 (1st Cir. 1982)).

[48] Id. at 1243.