New Developments for Prosecuting Airplane Crimes in the Ninth Circuit

By Nathan Lilly.

Background

Monique Lozoya was sitting in the middle seat on the second-to-last row of a Delta Airlines flight traveling from Minneapolis to Los Angeles when she felt the passenger behind her kicking her seat. She tried ignoring it, as many of us would do, but when the culprit got up to use the bathroom, she decided that she would confront him. When he returned to his seat, sparks flew. The passenger said Lozoya got aggressive and smacked him in the face, but Lozoya claimed that when she asked him to stop kicking her seat, the passenger got in her face, and she responded instinctively by shoving his face away. Either way, the passenger decided to press charges after his nose started bleeding. When the plane landed at LAX, Lozoya was arrested by federal agents and charged with assault.

As part of its case against Lozoya, the government needed to address the underlying issue of where the trial should take place. The Sixth Amendment to the Constitution requires that for all criminal prosecutions the government must establish the proper “place of prosecution and trial.” This is called venue—all crimes must be prosecuted in the federal judicial district in which the crime occurred. The Supreme Court has clarified this to mean a conduct test: look at the elements of the crime and then pinpoint the location where those elements took place.

For a case like Lozoya’s—where the sole element of the crime was a slap at 37,000 feet—venue is a bit complicated. The plane took off in a district and landed in a district, but the entire event happened over some unknown “flyover” district. For certain tricky situations, Congress passed two statutes to set venue in specific districts. The government successfully argued that one of these venue statutes allowed it to prosecute Lozoya in Los Angeles. Despite insisting that venue was improper, Lozoya was convicted of misdemeanor assault. She appealed her conviction to the Ninth Circuit Court of Appeals.

A Ninth Circuit Reversal Changes the Game

In April 2019, a divided Ninth Circuit panel held that Lozoya should not have been prosecuted in the Central District of California, but rather in the district the plane was traveling over at the exact time of the assault. United States v. Lozoya, 920 F.3d 1231, 1241–42. The court based its opinion on its own case from 1973 that held that the airspace above a judicial district is part of that district. A plane traveling seven miles over Nebraska, for example, would thus be within the District of Nebraska. If the government wanted to prosecute Lozoya for the assault, it could not rely on the venue statutes, but would have to find where the plane was at the time the assault occurred and pursue charges there.

The case did not receive much attention at the time, but it has big implications. By holding that the government must prosecute all crimes on airplanes in the “flyover district,” and establish venue by “dust[ing] off its navigational charts” to pinpoint exactly where the crime occurred, the Ninth Circuit made prosecuting crimes on aircraft much more difficult. Its holding also broke from the prevailing view of the Tenth and Eleventh Circuits (that the venue statutes allow the government to prosecute crimes in the landing district), creating a circuit split.

A New Development

In December 2019, the Ninth Circuit voted to rehear the case en banc [before a panel of eleven judges] in March 2020. Rehearings like this are rare—the Ninth Circuit only reheard nine cases en banc in 2019. This means that the holding in Lozoya is no longer binding precedent. Perhaps the judges who voted to rehear the case thought that the panel’s reasoning was faulty, or maybe they want to reverse the result to conform to the holdings of the Tenth and Eleventh Circuits. A rehearing opens the door for the losing party to appeal the en banc decision to the U.S. Supreme Court. A rehearing also shines a spotlight on the issue, which might prompt Congress to amend the venue statutes to explicitly provide for airplane crimes. Either way, prosecutors and defense attorneys alike will be eagerly anticipating the Ninth Circuit’s new ruling in United States v. Lozoya.

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Nathan Lilly

J.D. Candidate, 2021

Nathan is a 2L Staff Writer from Baton Rouge, Louisiana. He graduated with a degree in economics from LSU in 2018 (yes, he is still celebrating LSU Football’s 2019 national championship). Nathan and his wife, Kendall, recently added a standard poodle, Cassie, to their family. While not delving deep into issues of criminal procedure, Nathan enjoys playing bass guitar for his church, road tripping across Arizona, and drinking a cortado at a local coffee shop.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.