US v. Lozoya, No. 17-50336 (12-3-20)(en banc).Venue takes flight. Sitting en banc, the 9th considers where venue lies for an assault upon a plane in flight. Previously, a panel had focused on exactly over which State the offense took place. Going en banc, the 9th (Bennett) holds the offense took place in the special aircraft jurisdiction of the United States. Under 18 USC 3237(a), venue for in-flight federal crimes is proper in the landing district. Since the offense involves transportation in interstate commerce, prosecution could be in any fly-over jurisdiction or the take-off jurisdiction (see n. 8). This joins the 10th and 11th Circuits and finds support in decisions in the 2nd and 4th. This decision also keeps pace with Pace, a 9th precedent involving venue on the high seas.

The partial concurrence and partial dissent (Ikuta and others) argues this “fly over” venue is absurd. Venue is proper only where the defendant is arrested, first brought, or resides. 

The majority and dissent both write at length about venue, its importance to the framers, and obviously the fact that the founders and early Congresses never considered air flight. They depart with reliance on legislative history and the meaning of what “in state” means.

As for the defendant here, the 9th affirms the misdemeanor conviction and venue where the defendant’s flight had landed.

James Locklin, Deputy Federal Defender, Cal Central (Los Angeles), facing fight-or-flight, chose appellant fight, and put up a good creative one.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/17-50336.pdf