US v. Monique Lozoya, No. 17-50336 (4-11-19)(M. Smith w/Settle;  partial concurrence and dissent by Owens). 

This is an interesting opinion—think of it as an in-flight venue.  Indeed, the case concerns the proper venue for a simple assault (class B) that occurred on a flight from Minneapolis to Los Angeles.  Somewhere over the Great Plains, the defendant, in a middle seat, grew annoyed with the jostling from the seat behind her. She confronted the passenger when he left the seat. In her version, his abrasive shout startled her and she reactively “made contact with his face.”  In the victim’s version, she yelled at him to stop tapping the TV screen, and hit him with the back of her hand, causing his nose to bleed.

About a month after the incident, the defendant faced a violation notice for a class B misdemeanor. She subsequently was charged with an information.  This is important because of the issue of Speedy Trial.  The court, and then the 9th, found no violation.

At a bench trial, with various witnesses, the court convicted the defendant of simple assault under 113(a)(4). The defendant had moved for a rule 29 acquittal based on venue.  This was denied.

On appeal, the 9th found that venue was violated.  The 9th deemed venue improper in California Central. The proper venue was where the charged offense occurred: somewhere before the flight entered Cal Central airspace.  The 9th looks at article III of the Constitution, Supreme Court precedent (US v. Rodriguez-Moreno, 526 U.S. 275 (1999), and the statute for venue, 18 U.S.C. § 3237.  Each authority focuses on the offense, charged conduct, or incident.  Rodriguez-Moreno clearly states that to ascertain venue, a court must look at the charged conduct and the location it took place. The interstate commerce requirement for the assault, moreover, does not transfer to venue.

The 9th acknowledges this is contrary to the 10th and  11th Circuit precedent.  The 9th dismissed the opinions as pre-Rodriguez-Moreno and without analysis.

The 9th recognizes issues with exact location but states that modern technology and witnesses can prove venue.  It also says that Congress could fix the statute easily by making venue proper where the flight landed. 

Dissenting, Owens believes that the 9th is too clever.  It misapplies the conduct rule, ignores the purpose of venue (why over the Great Plains – with no connection -- and not where the flight landed), and flies blind as to problems with, say, the Northeast, where there are multiple districts and Circuits, all possible venues, or not.

As to be expected, both the majority and dissent use the facts of air flight to be creative (i.e. “friendly skies)”.  Owens starts his dissent with a listing of films where criminal conduct takes place on flights (“You do not need to watch Passenger 57, Flightplan, Turbulence, or even the vastly underrated Executive Decision to know that dangerous activity occurs on airplanes” 26). 

Congrats to Deputy Federal Defender Jim Locklin, Cal Central (Los Angeles) for quite a win.  Many of us will now listen to possible periodic updates on venue as we cruise at 30,000 feet in middle seats.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/11/17-50336.pdf