Another en banc decision today.
In United States v. Lozoya, --- F.3d ---, No. 17-50336 (9th Cir. 2020), the en banc Court affirmed a conviction for misdemeanor assault within the special aircraft jurisdiction of the United States.
The defendant committed the assault on a commercial flight from Minneapolis to Los Angeles, and argued venue in the Central District of California was improper because the assault did not occur in airspace directly above the Central District.
Rejecting this argument, the en banc majority held that venue for in-flight federal offenses is proper in the district where a plane lands. In reaching this conclusion, the majority found that the applicable venue provision was 18 U.S.C. § 3237(a), which provides: "[a]ny 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."
The dissent responded: "The majority holds that venue for this crime is proper in any district the airplane traveled from, through, or into, meaning that the trial for an assault on a cross-country flight can be held in any flyover state. See Maj. at 12 n.8 (acknowledging that 18 U.S.C. § 3237(a) “theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts”). Congress did not direct such an absurd result; rather, under the correct venue statute, the trial for an assault on a cross-country flight can be held only where the defendant “is arrested or is first brought,” or where the defendant resides. 18 U.S.C. § 3238"
