United States v. Monique Lozoya ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50336
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00598-
AB-1
MONIQUE A. LOZOYA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted En Banc May 26, 2020 *
San Francisco, California
Filed December 3, 2020
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown, William A. Fletcher, Jay S. Bybee, Sandra S.
Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B.
Owens, Mark J. Bennett, Daniel P. Collins and Kenneth K.
Lee, Circuit Judges.
Opinion by Judge Bennett;
Partial Concurrence and Partial Dissent by Judge Ikuta
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. LOZOYA
SUMMARY **
Criminal Law
The en banc court affirmed a conviction for
misdemeanor assault within the special aircraft jurisdiction
of the United States, in a case in which the defendant, who
committed the assault on a commercial flight from
Minneapolis to Los Angeles, argued that venue in the
Central District of California was improper because the
assault did not occur in airspace directly above the Central
District.
The en banc court held that the Constitution does not
limit venue for in-flight federal crimes to the district sitting
directly below a plane at the moment a crime was
committed, and that venue thus “shall be at such Place or
Places as the Congress may by Law have directed.” U.S.
Const. art. III, § 2, cl. 3. The en banc court held that the
second paragraph of 18 U.S.C. § 3237(a) applies to federal
crimes committed on commercial aircraft within the special
aircraft jurisdiction of the United States, and that such crimes
may be prosecuted in the flight’s landing district.
Dissenting in part and concurring in the judgment, Judge
Ikuta, joined by Judges Collins and Lee, wrote that under the
correct venue statute, 18 U.S.C. § 3238, 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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LOZOYA 3
COUNSEL
Hilary Potashner, Federal Public Defender; James H.
Locklin, Deputy Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.
Nicola T. Hanna, United States Attorney; Lawrence S.
Middleton, Chief, Criminal Division; Karen E. Escalante,
Assistant United States Attorney, Major Frauds Section;
United States Attorney’s Office, Los Angeles, California;
for Plaintiff-Appellee.
OPINION
BENNETT, Circuit Judge:
Defendant Monique Lozoya committed an assault on an
airplane. She was traveling on a commercial flight from
Minneapolis to Los Angeles when she argued with another
passenger and slapped him in the face. Lozoya was
convicted of misdemeanor assault in the Central District of
California, where the plane landed. On appeal, Lozoya
argues that venue in the Central District was improper
because the assault did not occur in airspace directly above
the Central District. We hold that venue for in-flight federal
offenses is proper in the district where a plane lands, and
affirm Lozoya’s conviction.
FACTS AND PROCEDURAL BACKGROUND
On July 19, 2015, Lozoya and her boyfriend were flying
home to California from Minneapolis. Their Delta Airlines
flight to Los Angeles was scheduled for about three-and-a-
4 UNITED STATES V. LOZOYA
half hours, the route taking them over Minnesota, Iowa,
Nebraska, Colorado, Utah, Arizona, Nevada, and California.
Lozoya wanted to sleep, but claimed the passenger
behind her, Oded Wolff, kept jabbing at his touchscreen
monitor attached to the back of her seat. Each jab startled
her awake. In the middle of the flight—Lozoya estimated an
hour before landing, her boyfriend about two hours, and a
flight attendant ninety minutes—Lozoya turned to Wolff,
who had just returned from the bathroom, and asked him to
stop banging on her seat. An argument ensued, and Lozoya
slapped Wolff’s face. Flight attendants intervened. After
the plane landed at LAX, Lozoya and Wolff went their
separate ways. Wolff reported the incident to the FBI, which
issued Lozoya a violation notice charging her with
misdemeanor assault within the special aircraft jurisdiction
of the United States. See 18 U.S.C. § 113(a)(5); 49 U.S.C.
§ 46506.
Lozoya’s bench trial took place in the flight’s landing
district, the Central District of California. After the
government rested, Lozoya moved for acquittal, claiming
the government had not established venue in the Central
District. See Fed. R. Crim. P. 29. The magistrate judge
presiding over the trial denied the motion and ruled that
venue was proper because the flight “came to an end” in the
Central District. Lozoya was convicted and sentenced to pay
a fine of $750. She then appealed to the district court, again
arguing that venue was improper in the Central District. The
district court found that venue was proper because the plane
had landed in the Central District and affirmed the
conviction. A divided three-judge panel of our court,
however, agreed with Lozoya that venue was improper and
reversed the conviction on that ground. United States v.
UNITED STATES V. LOZOYA 5
Lozoya, 920 F.3d 1231, 1243 (9th Cir. 2019). We took this
case en banc.
We have jurisdiction under 28 U.S.C. § 1291 and review
de novo whether venue was proper in the Central District of
California. See United States v. Ruelas-Arreguin, 219 F.3d
1056, 1059 (9th Cir. 2000). “Venue is a question of fact that
the government must prove by a preponderance of the
evidence.” United States v. Lukashov, 694 F.3d 1107, 1120
(9th Cir. 2012).
DISCUSSION
The assault took place on a commercial flight in the
“special aircraft jurisdiction of the United States.” 49 U.S.C.
§ 46501(2). Decades ago, at the onset of the “age of jet
aircraft,” Congress recognized that crimes committed in the
skies raise difficult questions: “Although State criminal
statutes generally cover crimes committed on board aircraft
in flight over the State, the advent of high-speed, high-
altitude flights of modern jet aircraft has complicated the
problem of establishing venue for the purposes of
prosecution. In some recent instances, serious offenses have
gone unpunished because it was impossible to establish to
any reasonable degree of accuracy the State over which the
crime was committed.” H.R. Rep. 87-958 (1961), reprinted
in 1961 U.S.C.C.A.N. 2563, 2564. Congress chose to
federalize certain offenses committed on airplanes,
including murder, sexual assault, and Lozoya’s crime—
simple assault. See id. at 2563; 49 U.S.C. § 46506.
Lozoya contends that venue is proper only in the federal
district over which the in-flight assault occurred, which was
6 UNITED STATES V. LOZOYA
not the Central District.1 We reject that contention. Under
18 U.S.C. § 3237(a), venue is proper in the landing district,
here the Central District of California. Thus, we affirm
Lozoya’s conviction. 2
I. Constitutional Requirements
Criminal venue mattered to the Framers, who
complained in the Declaration of Independence that King
George transported colonists “beyond Seas to be tried.” The
Declaration of Independence, para. 21 (U.S. 1776). The
Framers designed a system that requires trial in the vicinity
of the crime, “to secure the party accused from being
dragged to a trial in some distant state, away from his
friends, witnesses, and neighborhood.” United States v.
Muhammad, 502 F.3d 646, 652 (7th Cir. 2007) (quoting
Joseph Story, Commentaries on the Constitution § 925
(Carolina Academic Press reprint 1987) (1833)).
The Constitution safeguards a criminal defendant’s
venue right in two places. The Venue Clause of Article III,
Section 2 provides: “The Trial of all Crimes, except in Cases
of Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been
committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth
1
It is undisputed that the assault happened before the plane entered
airspace above the Central District, but it is unclear which district was
below the plane during the assault.
2
We exercise our discretion to consider only this issue. See
Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002); see also Rand v.
Rowland, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). Parts I and
II.A of the panel majority opinion, concerning the Speedy Trial Act and
waiver issues, United States v. Lozoya, 920 F.3d 1231, 1236–38 (9th Cir.
2019), are not affected by our en banc review and are not withdrawn.
UNITED STATES V. LOZOYA 7
Amendment’s Vicinage Clause further requires that the
defendant be tried by an “impartial jury of the State and
district wherein the crime shall have been committed.” U.S.
Const. amend. VI. Under these two provisions, criminal
trials generally must take place in the same state and district
where the crime took place. But if the crime was “not
committed within any State,” the Constitution provides that
“the Trial shall be at such Place or Places as the Congress
may by Law have directed.” U.S. Const. art. III, § 2, cl. 3.
The Constitution does not discuss the airspace over the
several states. Nor did the Framers contemplate crimes
committed in the “high skies,” even as they granted
Congress the power to “define and punish Piracies and
Felonies committed on the high Seas.” U.S. Const. art. I,
§ 8, cl. 10. Lozoya’s crime would have been alien to the
Framers. It happened on an airplane flying almost 600 miles
an hour, five miles above the earth. And it occurred over
one of several states or districts, depending on the time of
the slap.
In Lozoya’s view, the Constitution requires trial in the
district over which the plane was flying at the exact moment
of the assault. Her crime was committed in the airspace
above a district, the argument goes, so that district was the
location of her crime. Implicit in this reasoning is an
interpretation of Article III and the Sixth Amendment that a
state or district includes the airspace above it for
constitutional venue purposes. Lozoya was not tried in the
flyover district but in the Central District of California,
where the plane landed and where she lived and worked.
Lozoya thus argues that venue was constitutionally improper
because her trial did not take place in the state and district
where her crime took place.
8 UNITED STATES V. LOZOYA
We disagree. Neither Article III nor the Sixth
Amendment says that a state or district includes airspace,
and there is, of course, no indication that the Framers
intended as such. 3 Indeed, the very purpose of the
Constitution’s venue provisions—to protect the criminal
defendant from “the unfairness and hardship to which trial
in an environment alien to the accused exposes him”—is
thwarted by limiting venue to a flyover district in which the
defendant never set foot. United States v. Johnson, 323 U.S.
273, 275 (1944).
For crimes committed on planes in flight, the
Constitution does not limit venue to the district directly
below the airspace where the crime was committed. And
thus venue “shall be at such Place or Places as the Congress
may by Law have directed.” 4 U.S. Const. art. III, § 2, cl. 3.
3
Our decision in United States v. Barnard, 490 F.2d 907 (9th Cir.
1973), does not help Lozoya’s argument. In Barnard, we interpreted
18 U.S.C. § 3237(a), which provides that offenses involving
transportation in foreign commerce may be prosecuted in “any district
from, through, or into which such commerce . . . moves.” Barnard
concluded that under the statute, a drug-smuggling plane moved
“through” a district when the plane flew over it, because “the navigable
airspace above that district is a part of the district.” 490 F.2d at 911.
Barnard did not purport to interpret Article III or the Sixth Amendment
in reaching that holding.
4
We are puzzled by the dissent’s baggage handler hypothetical, in
which a rogue baggage handler, “standing on the tarmac at Los Angeles
International Airport,” aims a laser at an aircraft during takeoff. Dissent
at 37. The dissent concedes that “the baggage handler’s offense was
committed in California, and because the Venue Clause’s exception for
offenses ‘not committed within any state’ is inapplicable, it must be tried
in California.” Dissent at 37 (emphasis added). We agree: the
hypothetical crime was committed in California; thus the Constitution
requires that it be tried in California. The inquiry ends there. Despite
UNITED STATES V. LOZOYA 9
II. Statutory Requirements
18 U.S.C. § 3237(a) contains two paragraphs, each
covering a different type of offense. First, “any offense
against the United States begun in one district and completed
in another, or committed in more than one district, may be
inquired of and prosecuted in any district in which such
offense was begun, continued, or completed.” Id. Second,
“[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.” Id.Two of our sister circuits, the Tenth and the Eleventh,
have held that the second paragraph of § 3237(a) applies to
in-flight crimes because the crimes “took place on a form of
transportation in interstate commerce.” United States v.
Breitweiser, 357 F.3d 1249, 1253 (11th Cir. 2004)
(“Congress has provided a means for finding venue for
crimes that involve the use of transportation. The violations
of the statutes here [abusive sexual contact and simple
assault of a minor] are ‘continuing offenses’ under 18 U.S.C.
§ 3237.”); see also United States v. Cope, 676 F.3d 1219,
1225 (10th Cir. 2012). In both these cases, the court upheld
venue in the district where the airplane landed, rather than
requiring the government to show “exactly which federal
district was beneath the plane when [the defendant]
recognizing that Congress’s venue statutes do not apply when the
Constitution settles the issue, the dissent goes on to apply an inapplicable
statute and argues that it does not lead to the correct result. There is of
course no requirement to “reconcile” a hypothetical result under an
inapplicable statute. See Dissent at 38.
10 UNITED STATES V. LOZOYA
committed the crimes.” Breitweiser, 357 F.3d at 1253; see
also Cope, 676 F.3d at 1225.
We join the Tenth and Eleventh Circuits and conclude
that the second paragraph of 18 U.S.C. § 3237(a) applies to
federal crimes committed on commercial aircraft within the
special aircraft jurisdiction of the United States. Lozoya’s
crime “involved” transportation in interstate commerce
under a plain meaning reading of the word “involve.” See
American Heritage Dictionary (5th ed. 2019) (defining
“involve” as “[t]o relate to or affect”). Not only did the
crime take place on a form of interstate transportation, the
assault is a federal offense only because it was committed
within the special aircraft jurisdiction of the United States.
See 49 U.S.C. § 46506. But for the interstate transportation,
Lozoya could not have committed this crime. An offense
whose very definition requires interstate transportation
certainly “involves” transportation in interstate commerce.
That the dissent disagrees with Congress’s broad
definition of “continuing offense” is of no import. The
dissent believes that a continuing offense should be defined
as “one which was committed in more than one state” or
locality. Dissent at 35–36. But that is simply not the
definition that Congress adopted in the second paragraph of
§ 3237(a), which provides that “[a]ny offense involving . . .
transportation in interstate or foreign commerce . . . is a
continuing offense.” 5 Rather, the dissent’s definition is
almost identical to the first paragraph of § 3237(a), covering
5
The dissent insists that our interpretation is “strained” and
characterizes it as the following: “[T]he majority has interpreted the
phrase ‘continuing offense’ in § 3237 to include any offense . . .
involving transportation in interstate or foreign commerce.” Dissent
at 36, 40. We note that is literally what the statute says.
UNITED STATES V. LOZOYA 11
offenses “begun in one district and completed in another, or
committed in more than one district.” 18 U.S.C. § 3237(a);
see also United States v. Rodriguez-Moreno, 526 U.S. 275,
282 (1999). Here, we are not concerned with the first
paragraph but with the second. Under the second paragraph
of § 3237(a), venue was proper in the Central District of
California, through and into which the plane moved. 6
Our holding is consistent not only with the Tenth and
Eleventh Circuits’ decisions, but also with the near-universal
practice of landing district prosecution. For decades, and
since Congress federalized certain offenses committed in the
air, federal offenders have been prosecuted and tried in the
landing districts. Venue in the landing district is plainly
sensible: it is where arrests are made and witnesses
interviewed, and is often the defendant’s residence or travel
6
Where the Constitution does not mandate venue in a particular
district, Congress has broad latitude to define the locality of a crime. See,
e.g., 48 U.S.C. § 644a (providing that “all offenses and crimes
committed” on certain Pacific islands, including the Midway Islands,
Wake Island, Johnston Island, and Palmyra Island, “shall be deemed to
have been consummated or committed on the high seas on board a
merchant vessel or other vessel belonging to the United States”). The
dissent relies on United States v. Johnson, 323 U.S. 273 (1944), to
narrow Congress’s language in the second paragraph of § 3237(a). See
Dissent at 33–34. Johnson did not interpret the second paragraph of
§ 3237(a) because it did not exist when Johnson was decided. That
Congress wrote the second paragraph in response to Johnson does not
mean that the second paragraph must be limited by Johnson’s specific
context and discussion. And the Johnson Court did not require that
Congress adopt any particular definition. See Johnson, 323 U.S. at 275.
Further, the dissent’s analysis of Johnson contradicts the dissent’s own
argument that the second paragraph of § 3237(a) “defines a particular
category of offenses” that “fall within the more generally framed rule set
forth in the first paragraph.” Dissent at 34. If that were true, then
Congress would not have needed to add the second paragraph after
Johnson because both paragraphs would yield the same result.
12 UNITED STATES V. LOZOYA
destination. In our research, we found examples of landing
district venue in every circuit except the D.C. Circuit (the
District of Columbia has no commercial airports), and
discovered no court that has prohibited venue in the landing
district. 7
By contrast, flyover prosecution is virtually unheard of,
for good reason. 8 To establish venue under Lozoya’s theory,
the government must determine exactly when the crime was
committed, use flight tracking sources to pinpoint the
plane’s longitude and latitude at that moment, and then look
down five miles to see which district lay below. Lozoya
dismisses the government’s concerns about the difficulty of
the task as “hyperbolic,” suggesting that the time of the
7
See, e.g., United States v. Jahagirdar, 466 F.3d 149 (1st Cir. 2006)
(sexual assault); United States v. Cohen, No. 07-cr-5561, 2008 WL
5120669 (2d Cir. Dec. 8, 2008) (sexual assault); United States v. Aksal,
638 F. App’x 136 (3d Cir. 2015) (sexual assault); United States v.
Jennings, 496 F.3d 344 (4th Cir. 2007) (sexual abuse of a minor); United
States v. Stewart, No. 02-CR-046, 2002 U.S. Dist. LEXIS 20220 (N.D.
Tex. Oct. 21, 2002) [5th Cir.] (sexual assault); United States v. Anderson,
503 F.2d 420 (6th Cir. 1974) (attempted manslaughter); United States v.
Barberg, 311 F.3d 862 (7th Cir. 2002) (sexual assault); United States v.
Kokobu, 726 F. App’x 510 (8th Cir. 2018) (per curiam) (simple assault);
United States v. Lozoya, No. 16-00598 (C.D. Cal. Sept. 8, 2017), rev’d,
920 F.3d 1231 (9th Cir. 2019); United States v. Johnson, 458 F. App’x
727 (10th Cir. 2012) (interference with flight crewmember and sexual
assault); United States v. Breitweiser, 357 F.3d 1249 (11th Cir. 2004)
(sexual abuse of a minor and simple assault).
8
We acknowledge that § 3237(a) theoretically allows venue not just
in the landing district, but also the takeoff district as well as the flyover
districts. But we are not aware of any cases where the government
prosecuted an in-flight crime in a flyover district with which the
defendant had no ties. And in the event that a choice of venue implicates
concerns about fairness or inconvenience, the defendant can request a
transfer of venue. See Fed. R. Crim. P. 21(b).
UNITED STATES V. LOZOYA 13
crime can be determined using witness testimony and some
math. The witnesses, however, gave different estimates of
when the slap occurred. Lozoya’s flight from Minneapolis
to Los Angeles crossed at least eight districts in about three-
and-a-half hours. In the span of an hour—the difference
between the estimates of two witnesses—an airplane can
easily fly over multiple states and districts.
A flyover venue rule would unreasonably burden the
victims of in-flight crimes and the interests of justice. Of
particular concern are victims of sexual assault. According
to the FBI, reports of sexual assault on commercial flights
are at an all-time high. 9 Sexual assaults are most common
on long-haul flights when the victim is sleeping and covered
by a blanket or jacket. Sometimes there are no witnesses.
Victims report waking up disoriented and realizing in horror
that they were assaulted by a seatmate. Proving the precise
time of an assault could be impossible, and a flyover venue
rule could mean no prosecution at all.
The venue statute cited by the dissent, 18 U.S.C. § 3238,
is inapplicable here. Section 3238 applies to “offenses
begun or committed upon the high seas, or elsewhere out of
the jurisdiction of any particular State or district,” id., and
we have held that it applies only if “the offense was
committed entirely on the high seas or outside the United
States (unless, of course, the offense was ‘begun’ there).”
United States v. Pace, 314 F.3d 344, 351 (9th Cir. 2002).
Lozoya’s offense was not committed on the high seas, and
9
Sexual Assault Aboard Aircraft, Federal Bureau of Investigation
(Apr. 26, 2018), https://www.fbi.gov/news/stories/raising-awareness-
about-sexual-assault-aboard-aircraft-042618.
14 UNITED STATES V. LOZOYA
for obvious reasons, we decline to hold that airspace above
the United States is “outside the United States.”
Although the dissent disagrees with Pace’s conclusion
that § 3238 applies to crimes outside the United States, our
interpretation in Pace is consistent with that of our sister
circuits and the legislative history of § 3238. 10 As the
dissent notes, Congress most recently amended § 3238 in
1963, to address (1) crimes committed by more than one
offender, and (2) crimes committed by an offender who
remains abroad. Dissent at 27. The Senate Report
accompanying the 1963 amendments expressly stated that
§ 3238 was intended to cover extraterritorial crimes: “The
purpose of the bill is to (1) permit the indictment and trial of
an offender or joint offenders who commit abroad offenses
against the United States, in the district where any of the
offenders is arrested or first brought; (2) to prevent the
statute of limitations from tolling in cases where an offender
or any of the joint offenders remain beyond the bounds of the
United States by permitting the filing of information or
indictment in the last known residence of any of the
10
See United States v. Miller, 808 F.3d 607 (2d Cir. 2015)
(concluding that “the history and text of § 3238 do make clear, at the
very least, that the statute focuses on offense conduct outside of the
United States,” id. at 619, and “[s]ection 3238 may apply even when
certain offense conduct occurs in the United States, if the criminal acts
are nonetheless ‘essentially foreign,’” id. at 621); United States v.
Holmes, 670 F.3d 586, 594 (4th Cir. 2012) (“We begin, as we must, with
the text of § 3238, which establishes that venue for extraterritorial
offenses ‘shall be in the district in which the offender . . . is arrested or
is first brought.’”); United States v. Layton, 519 F. Supp. 942, 944 (N.D.
Cal. 1981) (“The apparent purpose of [§ 3238], however, is simply to
provide an arbitrary rule of venue for offenses committed outside of the
United States.”).
UNITED STATES V. LOZOYA 15
offenders.” 11 S. Rep. No. 88-146 (1963), reprinted in 1963
U.S.C.C.A.N. 660, 660 (emphases added).
Moreover, § 3238 by its terms applies to crimes
committed “out of the jurisdiction of any particular State or
district,” but the states routinely assert jurisdiction over
crimes committed in airspace. See, e.g., N.J. Stat. Ann.
§ 6:2-9 (“All crimes, torts, and other wrongs committed by
or against an airman or passenger while in flight over this
state shall be governed by the laws of this state.”); Fla. Stat.
§ 860.13 (criminalizing the “[o]peration of aircraft while
intoxicated or in careless or reckless manner”); Marsh v.
State, 620 P.2d 878, 879 (N.M. 1980) (“Although the
Federal Aviation Act of 1958 was amended to extend federal
criminal laws to certain acts committed on board aircraft,
this legislation was not intended to preclude state
prosecution for the same crimes.” (citation omitted)).
There is no indication that Congress, when it amended
§ 3238 in 1963, believed that airspace above a state is “out
of the jurisdiction” of that state. Indeed, when Congress
amended the Federal Aviation Act in 1961 to federalize
certain in-flight criminal acts, it recognized that crimes
11
The dissent admits that the two amendments exclusively address
extraterritorial crimes, but insists that the new language added in 1963,
irrelevant here, provides the extraterritoriality requirement. Dissent
at 31. This is wrong. For example, one of the two amendments added
the following italicized language: “The trial of all offenses begun or
committed . . . out of the jurisdiction of any particular State or district,
shall be in the district in which the offender, or any one of two or more
joint offenders, is arrested or is first brought[.]” 18 U.S.C. § 3238(emphasis added). The added language clearly refers to the number of
offenders and not to the extraterritorial location of the crime. Thus, Pace
and our sister circuits correctly interpreted “out of the jurisdiction of any
particular State or district”—the relevant language here—as referring to
places outside of the United States.
16 UNITED STATES V. LOZOYA
committed in airspace are within the jurisdiction of the
states:
The offenses punishable under this
legislation would not replace any State
jurisdiction but would, where both Federal
and State law provided for punishment for the
same act, be in addition to the State criminal
law.
* * *
We wish to emphasize that it is not our
intent to divest the States of any jurisdiction
they now have. This legislation merely seeks
to give the Federal Government concurrent
jurisdiction with the States in certain areas
where it is felt that concurrent jurisdiction
will contribute to the administration of justice
and protect air commerce.
H.R. Rep. 87-958 (1961), reprinted in 1961 U.S.C.C.A.N.
2563, 2564–65. 12 We think it unwise to divest states of their
12
At that time, the Federal Aviation Act included a special venue
provision containing language almost identical to § 3238: “[I]f the
offense is committed out of the jurisdiction of any particular State or
district, the trial shall be in the district where the offender, or any one of
two or more joint offenders, is arrested or is first brought.” 49 U.S.C.
§ 1473(a) (repealed 1994). Legislative history shows that Congress
understood “committed out of the jurisdiction of any particular State or
district” to mean “where . . . offenders commit an offense abroad”—just
as it understood § 3238. H.R. Rep. 87-958 (1961), reprinted in 1961
U.S.C.C.A.N. 2563, 2577. In the context of aviation, “abroad” naturally
refers to foreign airspace and not United States airspace.
UNITED STATES V. LOZOYA 17
jurisdiction, and dangerous to do so by holding that the
airspace above them is not within the United States.
The dissent insists that its interpretation does not divest
states of their jurisdiction, despite that it requires concluding
that airspace is “out of the jurisdiction of any particular
State” in order for § 3238 to apply. According to the dissent,
such a paradoxical reading is required because the “text and
statutory history of § 3238 show that its scope is coextensive
with the Venue Clause.” Dissent at 29–30. The text is
certainly not coextensive. The text of the Venue Clause is
“not committed within any State,” and the text of § 3238 is
“elsewhere out of the jurisdiction of any particular State or
district”—the key word is “jurisdiction.” The dissent
ignores the statute’s clear text and argues that the word
“jurisdiction” actually means “territory,” relying on a 170-
year-old Supreme Court decision interpreting a predecessor
statute. Dissent at 26, 29–30. Untethering the word from its
meaning turns the statute upside down, leading to the
dissent’s perplexing conclusion that a state can retain
jurisdiction to prosecute crimes that are committed “out of
the jurisdiction of any particular State.” 13
The dissent contends that legislative history, our
decision in Pace, and our sister circuits’ decisions are all
wrong, unreasoned, or dicta. See Dissent at 29 n.9. In the
dissent’s view, we need not consult any of these sources
13
According to the dissent, § 3238’s “offenses begun or committed
. . . elsewhere out of the jurisdiction of any particular State” has nothing
to do with “whether the State has the authority to prosecute the offense.”
Dissent at 30 (emphasis added). The dissent claims that “the text”
compels this interpretation. Dissent at 30. This interpretation, in turn, is
the basis of the dissent’s equally perplexing argument that we rewrote
the statutory text by reading “jurisdiction” to mean “jurisdiction.”
Dissent at 25.
18 UNITED STATES V. LOZOYA
because the statutory text clearly supports the dissent’s
interpretation. See Dissent at 25. That is, the dissent
believes that § 3238’s “out of the jurisdiction of any
particular State or district” clearly refers to a place (i) within
the United States (ii) but “not within a state,” (iii) yet also
within the jurisdiction of the states. 14 Dissent at 26
(emphasis added), 29, 30 n.10. We cannot find such a
peculiar place in the statute’s clear text, and we are unaware
of any court that has. 15
We hold that under 18 U.S.C. § 3237(a), venue for in-
flight federal crimes is proper in the landing district. We
adopt here a venue rule that is tethered to the Constitution,
comports with the decisions of our sister circuits, and is
consistent with common sense and the interests of justice.
CONCLUSION
The Constitution does not limit venue for in-flight
federal crimes to the district sitting directly below a plane at
the moment a crime was committed. Such in-flight crimes
are covered by 18 U.S.C. § 3237(a) and may be prosecuted
in the flight’s landing district. We therefore conclude that
14
The dissent’s interpretation requires concluding that all of these
things are simultaneously true about airspace (and that all contrary legal
authority is wrong). Otherwise, the dissent would have to conclude that
United States airspace is extraterritorial or that states can no longer assert
jurisdiction over airspace.
15
Nor does the government’s petition for rehearing en banc—which
relies exclusively on § 3237(a)—argue for the dissent’s interpretation of
§ 3238.
UNITED STATES V. LOZOYA 19
venue was proper in the Central District of California and
affirm the district court.
AFFIRMED.
IKUTA, Circuit Judge, with whom COLLINS and LEE,
Circuit Judges, join, dissenting in part and concurring in the
judgment:
This case requires us to determine where a criminal case
must be adjudicated when a discrete federal offense occurs
on an aircraft flying through the airspace above a particular
state. Under 49 U.S.C. § 46506, Congress has made simple
assault a federal crime if the assault occurs “on an aircraft in
the special aircraft jurisdiction of the United States.”
49 U.S.C. § 46506; 18 U.S.C. § 113(a)(5). 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. Therefore, I dissent
from the majority’s reasoning.
I
Article III’s Venue Clause provides that: “[t]he Trial of
all Crimes . . . shall be held in the State where the said
Crimes shall have been committed,” U.S. Const. art. III, § 2,
20 UNITED STATES V. LOZOYA
cl. 3, and the Sixth Amendment further specifies that crimes
committed within a state must be tried in the “district
wherein the crime shall have been committed, which district
shall have been previously ascertained by law,” U.S. Const.
amend. VI. There is only one exception to this general rule:
when the crimes are “not committed within any State, the
Trial shall be at such Place or Places as the Congress may by
Law have directed.” U.S. Const. art. III, § 2, cl. 3. 1 Monique
Lozoya assaulted a fellow passenger while on an aircraft in
flight, and it is undisputed that Lozoya did not commit this
offense in California. Therefore, the Venue Clause does not
allow Lozoya’s trial to be held in California, unless:
(1) Lozoya’s offense was “not committed within any state,”
and (2) Congress directed that the trial could be held in
California.
II.
To determine whether the exception to the Venue
Clause’s general rule applies, we first ask whether Lozoya’s
offense was “not committed within any State.” For the
reasons explained below, when criminal conduct occurs in
navigable airspace, the crime is “not committed within any
State,” U.S. Const. art. III, § 2, cl. 3, and Congress may
1
The Venue Clause provides, in full:
The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been
committed; but when not committed within any State,
the Trial shall be at such Place or Places as the
Congress may by Law have directed.
U.S. Const. art. III, § 2, cl. 3.
UNITED STATES V. LOZOYA 21
designate the venue for such a crime, Maj. at 8, at least when
the crime has no effect on the ground below. 2
The Venue Clause is ambiguous when applied to an
offense that took place in an airplane flying over the United
States, and some of our usual tools for interpreting legal texts
are not helpful here. We can be confident that, when the
Constitution was adopted in 1789, the public had no view
regarding whether a crime committed at cruising altitude in
navigable airspace was committed within a state under the
Venue Clause. While some contemporaneous sources
indicate that “the jurisdiction of a state is co-extensive with
its territory,” United States v. Bevans, 16 U.S. 336, 386–87
(1818), and therefore a crime committed within the
jurisdiction of a state might be deemed to be committed
within that state’s territory for purposes of the Venue Clause,
these sources do not indicate whether a state’s jurisdiction
extended to offenses occurring exclusively at 30,000 feet.
To be sure, “at common law ownership of the land extended
to the periphery of the universe,” Causby, 328 U.S. at 260,
but this principle must be understood against the backdrop
of the sorts of above-the-ground activities contemplated at
2
For present purposes, we need not resolve the question whether
crimes on airplanes that have an on-the-ground effect within a state’s
territory are committed within the state, such as when a plane is used for
unlawfully spraying agricultural pesticides over land, see Charles F.
Krause, Aviation Tort and Reg. Law § 14:49 (2d ed. 2020), when flyover
activities affect residents, see United States v. Causby, 328 U.S. 256, 258
(1946), or when an offense occurs partly on the ground and partly on an
aircraft, see, e.g., 49 U.S.C. § 46505 (criminalizing carrying concealed
weapons or explosives aboard aircraft, which may also violate state
laws). An offense such as the one at issue here, committed wholly within
a plane flying miles above any state, has no impact on the territory of the
state below, and therefore does not raise this question.
22 UNITED STATES V. LOZOYA
the time. 3 Given that technology has changed dramatically
since the founding—in addition to aircraft, both satellites
and spaceships now regularly invade the airspace between
the land below and “the periphery of the universe,” id.—this
common law principle is not entitled to much weight in this
context. Indeed, the Supreme Court has indicated that this
common law principle may not be relevant to the modern use
of navigable airspace. See id. at 261.
We are left to rely on what the Framers’ contemporaries
would have understood to be the purpose of the Venue
Clause. See U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 806–08 (1995). Historical sources indicate that the
central purpose of the Venue Clause’s requirement that trials
be held in “the state where the said crimes shall have been
committed” was to prevent criminal suspects from being
tried in arbitrary locations, far away from witnesses. See
Joseph Story, Commentaries on the Constitution § 1775
(1833). This was an important issue for the Framers. The
Declaration of Independence had criticized the Crown “[f]or
transporting us beyond Seas to be tried for pretended
offences.” The Declaration of Independence para. 21 (U.S.
1776). In Federalist No. 84, Alexander Hamilton argued that
the Constitution contained “various provisions in favor of
particular privileges and rights,” including the Venue
3
The first human flight occurred on November 21, 1783, in Paris,
France, in a hot air balloon made of paper and silk. History of
Ballooning, National Balloon Museum, https://www.nationalballoonmu
seum.com/about/history-of-ballooning/ (last visited Sept. 23, 2020).
The balloon reached an altitude of 500 feet and traveled 5.5 miles before
landing 25 minutes later. Id. The first manned flight in America
occurred on January 9, 1793. Id. A balloon carrying one man ascended
from a prison yard in Philadelphia, Pennsylvania, reaching an altitude of
5,800 feet. Id. President Washington observed the launch of the balloon,
which later landed in Gloucester County, New Jersey. Id.
UNITED STATES V. LOZOYA 23
Clause’s general rule that a trial be held in the state where
the crime was committed. The Federalist No. 84 (Alexander
Hamilton). As the Supreme Court subsequently explained,
the Framers drafted the Venue Clause with an awareness “of
the unfairness and hardship to which trial in an environment
alien to the accused exposes him.” United States v. Johnson,
323 U.S. 273, 275 (1944).
Given the inadequacy of our usual interpretive tools, we
should interpret the Venue Clause in a manner consistent
with its evident purpose. A ruling that crimes that are
committed entirely in navigable airspace (and that have no
effect on the ground below) are “not committed within any
State” is consistent with that purpose, because it allows
Congress to identify a reasonable place to hold trials for such
crimes. See Story, Commentaries, § 1775. Otherwise,
prosecutors would be required to establish where a criminal
act occurred in airspace over a state, and defendants would
have to be tried in flyover states. Accordingly, under the
Venue Clause, a crime is “not committed within any State”
when the criminal conduct occurs in navigable airspace. 4
4
The conclusion that a crime is not committed within any state if it
is committed in navigable airspace requires us to overrule United States
v. Barnard, which held that “navigable airspace above [a] district is a
part of the district.” 490 F.2d 907, 911 (9th Cir. 1973). Under federal
law, if a crime is committed in a judicial district, it is also committed in
a state. See 28 U.S.C. §§ 81–131 (defining judicial districts as
comprising all or part of a state, with few exceptions). If the navigable
airspace above a district is part of that district and part of a state, then the
trial of an offense in such airspace must take place within that district
and state. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., amend VI. The
majority attempts to distinguish Barnard on the ground that it “did not
purport to interpret Article III or the Sixth Amendment.” Maj. at 8 n.3.
This is irrelevant, however, because we are bound by the constitutional
significance of Barnard’s ruling whether or not Barnard referenced the
24 UNITED STATES V. LOZOYA
The majority agrees that in-flight crimes are “not
committed within any State” within the meaning of the
Venue Clause and are not committed within a “district” for
purposes of the Sixth Amendment. According to the
majority, neither the relevant text of either provision nor the
Framers’ understanding of them supports Lozoya’s view that
“a state or district includes the airspace above it for
constitutional venue purposes.” Maj. at 7. The majority thus
concludes that, when crimes are “committed on planes in
flight, the Constitution does not limit venue to the district
directly below the airspace where the crime was committed.”
Id. at 8. Accordingly, the majority explains, “venue ‘shall
be at such Place or Places as the Congress may by Law have
directed.’” Id. (quoting U.S. Const. art. III, § 2, cl. 3).
III
Because Lozoya’s offense was “not committed within
any State,” the trial “shall be at such Place or Places as the
Congress may by law have directed.” U.S. Const. art. III,
§ 2, cl. 3. Congress provided this direction in 18 U.S.C.
§ 3238, 5 which mirrors and implements the exception in the
Venue Clause or Sixth Amendment. If Barnard remains good law, then
we must deem the assault here to have “occurred entirely within the
jurisdiction of a particular district” and a particular state, and Lozoya
must be tried in that district and state. See United States v. Lozoya,
920 F.3d 1231, 1241 (9th Cir. 2019) (emphasis added), reh’g en banc
granted, 944 F.3d 1229 (9th Cir. 2019).
5
As currently drafted, 18 U.S.C. § 3238 provides:
The trial of all offenses begun or committed upon the
high seas, or elsewhere out of the jurisdiction of any
particular State or district, shall be in the district in
which the offender, or any one of two or more joint
offenders, is arrested or is first brought; but if such
UNITED STATES V. LOZOYA 25
Venue Clause. The majority’s argument to the contrary is
based almost entirely on legislative history, which it uses to
rewrite the text of § 3238. But as explained below, the
language of § 3238 refutes the majority’s claims, and the
majority’s selective quotations from committee reports do
nothing to alter that. See United States v. Mendoza, 244 F.3d
1037, 1042 (9th Cir. 2001) (“If the text of the statute is clear,
this court looks no further in determining the statute’s
meaning.”). Indeed, the text and statutory history of both
§ 3238 and § 3237 strongly confirm that the majority relies
upon the wrong venue provision in upholding the conviction
here.
A
Section 3238 is the direct descendant of the statute
enacted by the First Congress to implement the Venue
Clause. In the Crimes Act of 1790, Congress provided:
[T]he trial of crimes committed on the high
seas, or in any place out of the jurisdiction of
any particular state, shall be in the district
where the offender is apprehended, or into
which he may first be brought.
Ch. 9, § 8, 1 Stat. 112, 114 (1790).
As the Supreme Court explained over a century ago,
Congress enacted this venue provision in the Crimes Act to
offender or offenders are not so arrested or brought
into any district, an indictment or information may be
filed in the district of the last known residence of the
offender or of any one of two or more joint offenders,
or if no such residence is known the indictment or
information may be filed in the District of Columbia.
26 UNITED STATES V. LOZOYA
implement the Venue Clause’s exception for crimes “not
committed within any State.” United States v. Dawson,
56 U.S. 467, 487–88 (1853). The First Congress used the
phrase “crimes committed . . . in any place out of the
jurisdiction of any particular state” to refer to crimes “not
committed within any State.” Id. at 488. This makes clear
that the “place” referred to in the Crimes Act is a place
outside of any state’s territory, which is where the state
would normally have jurisdiction to adjudicate offenses.
In 1873, Congress passed An Act to Revise and
Consolidate the Statutes of the United States, 18 Stat. 138,
which moved and renumbered the Crimes Act’s venue
provision and made minor revisions to its language as
follows:
The trial of all offenses committed upon the
high seas or elsewhere, out of the jurisdiction
of any particular State or district, shall be in
the district where the offender is found, or
into which he is first brought. 6
Congress revised the phrase “or in any place out of the
jurisdiction of any particular state” to “or elsewhere, out of
the jurisdiction of any particular State or district.” 1 Stat.
112, 114; 18 Stat. 138 (emphasis added). The context makes
clear, however, that the word “elsewhere” continues to refer
to a “place” that is not within a state. See Cook v. United
States, 138 U.S. 157, 181–82 (1891) (continuing to interpret
this provision as directing venue for “offenses not committed
within any state” under the Venue Clause). Congress made
limited stylistic amendments to this provision again in 1911.
6
With the 1873 amendments, Congress renumbered the provision
to Title XIII, Ch. 12, § 730 of the U.S. Code. 18 Stat. 138.
UNITED STATES V. LOZOYA 27
36 Stat. 1100. In 1948, Congress recodified the provision as
18 U.S.C. § 3238 and amended the statute to apply to
offenses “begun or committed upon the high seas, or
elsewhere out of the jurisdiction of any particular State or
district.” 62 Stat. 826. Again, this language refers to places
that are not within a state.
In 1963, Congress amended § 3238 to clarify where
venue would be proper when an offense involved two or
more joint offenders, or when the offender or offenders were
not arrested or brought into any district. 77 Stat. 48.
Congress retained the prior language of the statute, but added
the following italicized language:
The trial of all offenses begun or committed
upon the high seas, or elsewhere out of the
jurisdiction of any particular State or district,
shall be in the district in which the offender,
or any one of two or more joint offenders, is
arrested or is first brought; but if such
offender or offenders are not so arrested or
brought into any district, an indictment or
information may be filed in the district of the
last known residence of the offender or of any
one of two or more joint offenders, or if no
such residence is known the indictment or
information may be filed in the District of
Columbia.
18 U.S.C. § 3238 (emphasis added). According to a
contemporaneous legislative report, Congress amended the
statute in response to two concerns expressed by the
Attorney General. First, the previous version of § 3238
created a “most awkward situation in certain instances when
two or more joint offenders [were] involved.” H.R. Rep. No.
28 UNITED STATES V. LOZOYA
86-199, at 2 (1959) (Judiciary Committee Report); see also
S. Rep. No. 88-146 (1963), as reprinted in 1963
U.S.C.C.A.N. 660. For example, if two or more individuals
jointly committed acts of treason abroad and were then
found in different districts within the United States, the
previous version of § 3238 would require them to be tried in
different jurisdictions. H.R. Rep. No. 86-199, at 2. Second,
the prior version of § 3238 lacked language that would allow
the government to indict “an offender who commits an
offense beyond the bounds of the United States and [who]
remains beyond those bounds.” 7 Id. The amendment to
§ 3238 addressed both concerns. Id. at 1. 8 While the 1963
amendment gave the government more flexibility to try
cases involving defendants who committed offenses against
7
When defendants committed crimes against the United States
abroad, the statute of limitations for commencing criminal prosecution
against such defendants continued running while they remained living
abroad. See H.R. Rep. No. 86-199, at 3; see also Donnell v. United
States, 229 F.2d 560, 565 (5th Cir. 1956). The Attorney General wanted
the authority to indict such defendants in the United States in order to
toll the statute of limitations.
8
According to the House Judiciary Committee Report, the purpose
of this amendment to § 3238 was to:
(1) permit the indictment and trial of an offender or
joint offenders who commit abroad offenses against
the United States, in the district where any of the
offenders is arrested or first brought; (2) to prevent the
statute of limitations from tolling in cases where an
offender or any of the joint offenders remain beyond
the bounds of the United States by permitting the filing
of information or indictment in the last known
residence of any of the offenders.
H.R. Rep. No. 86-199, at 1; see also S. Rep. No. 88-146, at 1, 1963
U.S.C.C.A.N. at 660.
UNITED STATES V. LOZOYA 29
the United States abroad, it did not change the original text
of § 3238, which continued to apply to offenses committed
“elsewhere out of the jurisdiction of any particular State,”
just as it had since the Crimes Act.
Given the text and history of § 3238, the majority’s claim
that § 3238 applies only to offenses “committed entirely on
the high seas or outside the United States” lacks merit. Maj.
at 13 (quoting United States v. Pace, 314 F.3d 344, 351 (9th
Cir. 2002)). The majority’s interpretation has no support in
the text of § 3238. Although Congress could have limited
§ 3238 to offenses committed “outside the United States,” it
instead chose to reference offenses “committed upon the
high seas, or elsewhere out of the jurisdiction of any
particular State or district.” 18 U.S.C. § 3238 (emphasis
added). 9 The majority is likewise mistaken in claiming that
the reference in § 3238 to offenses that are committed
“elsewhere out of the jurisdiction of any particular State”
applies only to offenses that a state lacks the authority to
prosecute. Maj. at 17. The text and statutory history of
§ 3238 show that its scope is coextensive with the Venue
9
The majority’s reliance on dicta in nonbinding cases provides no
support for concluding otherwise. The unreasoned statement in Pace
that Ҥ 3238 does not apply unless the offense was committed entirely
on the high seas or outside the United States (unless, of course, the
offense was ‘begun’ there)” is mere dicta given that the offense in Pace
was “partially ‘committed’ in the District of Ohio.” 314 F.3d at 351.
The two other cases cited by the majority are likewise unreasoned and
unpersuasive. See United States v. Miller, 808 F.3d 607, 621 (2d Cir.
2015) (stating, without support, that § 3238 “focuses on offense conduct
outside of the United States” (emphasis added)); United States v. Layton,
519 F. Supp. 942, 943–44 (N.D. Cal. 1981) (stating without support or
reasoning that “[t]he apparent purpose of [§ 3238], however, is simply
to provide an arbitrary rule of venue for offenses committed outside of
the United States” (emphasis added)).
30 UNITED STATES V. LOZOYA
Clause exception, and applies to crimes committed outside
the territory of a state.
The majority contends that this construction of § 3238 is
wrong. According to the majority, if § 3238 applies to in-
flight offenses, then such offenses would be deemed to have
been committed “elsewhere out of the jurisdiction of any
particular State,” and that interpretation would divest states
of their prosecutorial jurisdiction over in-flight crimes. Maj.
at 15–16. The text of the statute refutes the majority’s
reading. By using the word “elsewhere,” § 3238 focuses on
whether the place where the offense was committed is “out
of the jurisdiction of any particular State” and not (as the
majority would have it) on whether the State has the
authority to prosecute the offense. This means there is no
daylight between § 3238 and the Venue Clause because both
focus on whether the place in which the offense occurred is
within a state. And because the majority agrees that the
airspace at issue here is not a place within any State for
purposes of the Venue Clause, see supra at Part II, it follows
that the airspace is also not a place within the jurisdiction of
any State for purposes of § 3238. Thus, nothing about
§ 3238 could be said to “divest states of their jurisdiction.”
Maj. at 16–17. The question whether a state can prosecute a
crime committed outside a state’s territory in navigable
airspace is exactly the same under § 3237(a) or § 3238. 10
10
The majority merely assumes that a state has jurisdiction to
prosecute crimes committed at cruising altitude in navigable airspace,
and supports its assumption only with the legislative history of the 1961
amendments to the Federal Aviation Act. Maj. at 15–16 & n.12. The
views of legislators regarding a state’s jurisdiction provide no guidance
for our analysis of such a legal question, and of course the legislative
history of a “completely separate statute[] passed well after” the statute
UNITED STATES V. LOZOYA 31
Nor does legislative history support the majority’s
interpretation. The majority relies on legislative history
explaining the 1963 amendment to § 3238, Maj. at 14–17,
which added language covering offenders committing
criminal acts abroad. This amendment did not affect the
language in § 3238 relevant here, which directs that offenses
committed “elsewhere out of the jurisdiction of any
particular State or district” must be tried in the district in
which the offender is arrested or first brought. Therefore,
the 1963 legislative history sheds no light on whether the
relevant language in § 3238 is limited to offenses committed
abroad.
In short, § 3238 implements the Venue Clause: it
provides where a crime shall be tried if it is “not committed
within any State.” Because an assault in navigable airspace
is “not committed within any State,” the trial must be held
where § 3238 directs, namely, “in the district” where the
offender is “arrested or . . . first brought,” or if there is no
such district, in the district where the offender resides.
18 U.S.C. § 3238. This is consistent with the purposes
behind the Venue Clause because the trial of an offender
who committed an assault on an airplane will generally be
held where the offender is arrested, typically in the district
where the plane lands. 11 Such a venue is not arbitrary,
because the defendant, the witnesses, and the victims are
more likely to be found in that district than any other.
being construed, has little persuasive power even to those who rely on
legislative history. Doe v. Chao, 540 U.S. 614, 626 (2004).
11
This is consistent with the “near-universal practice of landing
district prosecution.” Maj. at 11.
32 UNITED STATES V. LOZOYA
Because Lozoya committed an assault in navigable
airspace, § 3238 applies, and she is subject to trial in the
Central District of California. 12
B
To recap, the majority agrees that a crime committed on
a plane in flight is “not committed within any State” for
purposes of the Venue Clause. Maj. at 8. And as the Venue
Clause’s exception provides, if a crime is not committed
within a state, it may be tried wherever Congress directs. 13
But instead of relying on § 3238, which expressly directs
where an offense committed outside of a state must be tried,
the majority relies on the second sentence in § 3237(a),
which addresses a different issue: ensuring that continuing
offenses can be tried “in any district from, through, or into
which . . . commerce . . . moves.” 14
12
The record indicates that Lozoya’s residence was in Riverside,
California. Therefore, even if Lozoya was not arrested when she was
summoned to appear before the magistrate judge, venue was proper in
the district of her last known residence, the Central District of California.
See 18 U.S.C. § 3238.
13
For instance, the majority points to 48 U.S.C. § 644a, which
provides that all offenses committed on certain Pacific islands “shall be
deemed to have been consummated or committed on the high seas on
board a merchant vessel or other vessel belonging to the United States.”
Maj. at 11 n.6. Because these islands are not “within any State,”
Congress may direct where crimes on such islands may be tried.
14
18 U.S.C. § 3237(a) provides, in full:
Except as otherwise expressly provided by enactment
of Congress, any offense against the United States
begun in one district and completed in another, or
committed in more than one district, may be inquired
UNITED STATES V. LOZOYA 33
The text and statutory history make clear that § 3237(a)
does not implement the Venue Clause, but rather provides
for the trial of offenses committed in more than one state or
district. The second sentence in § 3237(a) was enacted in
response to the Supreme Court’s decision in United States v.
Johnson, 323 U.S. at 273–74. 15 Johnson construed a
criminal statute making it unlawful to “use the mails or any
instrumentality of interstate commerce” to send or receive
certain dentures across state lines. 323 U.S. at 273–74.
Given a defendant’s constitutional right to be tried in the
state and district where the crime was committed, U.S.
Const. art. III, § 2, cl. 3; U.S. Const. amend. VI, the Supreme
Court construed the denture statute narrowly as permitting
trial only in the state and district where the sender put the
dentures in the mail or into which the importer brought the
of and prosecuted in any district in which such offense
was begun, continued, or completed.
Any offense involving the use of the mails,
transportation in interstate or foreign commerce, or the
importation of an object or person into the United
States 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, mail matter, or
imported object or person moves.
15
Prior to Johnson, the statute which is now § 3237(a) read:
When any offense against the United States is begun
in one judicial district and completed in another, it
shall be deemed to have been committed in either, and
may be dealt with, inquired of, tried, determined, and
punished in either district, in the same manner as if it
had been actually and wholly committed therein.
36 Stat. 1100 (1911).
34 UNITED STATES V. LOZOYA
dentures. Id. at 277–78. The Court indicated, however, that
it would have reached a different result had Congress used
“the doctrine of a continuing offense” and expressly
provided that the crime extended over the whole area
through which the dentures were transported. Id. at 275.
Congress could, if it chose, enact “specific venue provisions
giving jurisdiction to prosecute in any criminal court of the
United States through which a process of wrongdoing
moves.” Id. at 276.
Rather than add a specific venue provision to the denture
statute itself, as Johnson had suggested, Congress responded
to Johnson by adding the second sentence of what is now
§ 3237(a), which expressly referred to a “continuing
offense” and provided that such a continuing offense in the
use of the mails or interstate commerce could be prosecuted
“in any district from, through, or into which such commerce
or mail matter moves.” This amendment to § 3237(a) thus
directly implemented Johnson’s guidance that Congress
could use “the doctrine of a continuing offense” in order to
“provide that the locality of a crime shall extend over the
whole area through which force propelled by an offender
operates,” and therefore “an illegal use of the mails or of
other instruments of commerce may subject the user to
prosecution in the district where he sent the goods, or in the
district of their arrival, or in any intervening district.” Id.
at 275.
The second paragraph of § 3237(a) is not surplusage, as
the majority wrongly suggests. See Maj. at 10–11. Rather,
the second paragraph defines a particular category of
offenses that constitute continuing offenses and thereby fall
within the more generally framed rule set forth in the first
paragraph. Given the overlap between these two paragraphs,
and the fact that the first paragraph of § 3237(a) standing
UNITED STATES V. LOZOYA 35
alone was insufficient to forestall the outcome in Johnson,
the majority’s suggestion that the two paragraphs must be
read as applying to two different categories of offenses is
clearly wrong. Id. It is not uncommon to have a situation
“in which a general authorization and a more limited,
specific authorization exist side-by-side.” RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012).
In that situation, there is no violation of the canon against
superfluity, because the canon that “the specific governs the
general” governs the analysis. Id. (citation omitted). Rather
than being superfluous, the specific authorization (rather
than the more general one) controls in the cases where it
applies. Id. Further, the majority’s notion that, in order to
avoid surplusage, the second paragraph of § 3237(a) must be
read in a way that raises grave constitutional concerns
ignores the equally, if not more important, constitutional-
avoidance canon. See infra at Part III.B. Even if there were
redundancy in the proper reading of § 3237(a) set forth
above, that reading is natural and preferable compared to the
majority’s oxymoronic and constitutionally problematic
notion of a non-continuing continuing offense.
The doctrine of “continuing offenses” discussed in
Johnson is not related to the Venue Clause’s exception for
offenses “not committed within any State,” which is
addressed in § 3238. Rather, the doctrine is a specific
application of the constitutional requirements that crimes be
tried in the state and district where they were committed. As
interpreted by the Supreme Court, a “continuing offense” is
an offense that “consists of distinct parts” that occur in
“different localities,” and “the whole may be tried where any
part can be proved to have been done.” United States v.
Rodriguez-Moreno, 526 U.S. 275, 281 (1999) (quoting
United States v. Lombardo, 241 U.S. 73, 77 (1916)). In other
words, a “continuing offense” is one which was committed
36 UNITED STATES V. LOZOYA
in more than one state, and so can be tried in more than one
state. For instance, crimes that persist during the course of
transportation between states, such as interstate drug
smuggling or kidnaping, are continuing offenses, which can
be tried wherever the transportation occurred. See
Rodriguez-Moreno, 526 U.S. at 279–81 (holding that
kidnaping is a continuing offense because the “conduct
constituting the offense” continues throughout the journey
and “does not end until the victim is free”).
Congress cannot avoid the strictures of the Sixth
Amendment and Venue Clause merely by labeling a point-
in-time offense as a “continuing offense.” “Crimes
consisting of a single noncontinuing act are ‘committed’ in
the district where the act is performed.” Pace, 314 F.3d
at 350 (quoting United States v. Corona, 34 F.3d 876, 879
(9th Cir. 1994)). Any Congressional enactment that
purported to allow the trial of such a point-in-time offense
outside the state and district where it occurred, whether or
not the offense was labeled “continuing,” would be
constitutionally impermissible. Therefore, the term
“continuing offense” in § 3237(a) must be interpreted as
referring to the sort of crime that “extend over the whole area
through which force propelled by an offender operates,”
Johnson, 323 U.S. at 275, where the “process of
wrongdoing” is “a continuing phenomenon,” id. at 276–77.
Contrary to the Supreme Court’s definition of the
continuing offense doctrine, the majority has interpreted the
phrase “continuing offense” in § 3237 to include any offense
(including point-in-time offenses) involving transportation
in interstate or foreign commerce. See Maj. at 10 (rejecting
the argument that the “definition that Congress adopted”
requires that the offense be continuing or persisting in any
way). Therefore, under the majority’s interpretation, any
UNITED STATES V. LOZOYA 37
offense (including a discrete slap) that “take[s] place on a
form of interstate transportation” meets the criteria in the
second sentence of § 3237(a): it is a continuing offense
“involving” transportation in interstate commerce under
§ 3237(a), at least when the offense is one “whose very
definition requires interstate transportation.” Maj. at 10.
Indeed, the majority acknowledges that no part of the offense
at issue here occurred in the Central District of California.
Maj. at 6 n.1 (“It is undisputed that the assault happened
before the plane entered airspace above the Central District
. . . .”).
The majority’s interpretation is wrong on its face and
raises potential constitutional problems. By its terms,
§ 3237(a) is not limited to offenses that fall within the Venue
Clause’s exception for crimes not committed within any
state. As a result, as interpreted by the majority, § 3237 will
apply in a range of circumstances that raise significant
constitutional concerns. A simple hypothetical shows why.
Consider a rogue baggage handler standing on the tarmac at
Los Angeles International Airport. As an airplane takes
flight on its way to New York’s John F. Kennedy
International Airport, the baggage handler aims the beam of
a laser pointer at the aircraft in violation of 18 U.S.C.
§ 39A(a), which punishes “[w]hoever knowingly aims the
beam of a laser pointer at an aircraft in the special aircraft
jurisdiction of the United States.” Under the Venue Clause,
the baggage handler’s offense was committed in California,
and because the Venue Clause’s exception for offenses “not
committed within any state” is inapplicable, it must be tried
in California. And Congress cannot circumvent the Venue
Clause by relabeling the baggage handler’s noncontinuing
action as a “continuing offense.” See Rodriguez-Moreno,
526 U.S. at 279; United States v. Cabrales, 524 U.S. 1, 6–7
(1998). Indeed, the majority agrees that the Constitution
38 UNITED STATES V. LOZOYA
requires this hypothetical offense to be tried in California.
Maj. at 8 n.4.
But under the majority’s interpretation, § 3237(a)
applies to the baggage handler’s crime. Like the slap in this
case, the baggage handler’s laser pointing “‘involved’
transportation in interstate commerce under [the majority’s]
reading of the word ‘involve.’” See Maj. at 10. Accordingly,
it is a “continuing offense,” per the majority’s interpretation
of § 3237(a). And, likewise, § 39A(a)’s “very definition
requires interstate transportation.” Maj. at 10. Therefore,
under the majority’s reading of § 3237(a), the baggage
handler has committed a “continuing offense,” and he may
be tried in any district “from, through, or into which such
commerce . . . moves.” 18 U.S.C. § 3237(a). This includes
(depending upon the airplane’s exact route) the District of
New Mexico, the District of Kansas, the Central District of
Illinois, and the Eastern District of New York. The majority
agrees that such a result is inconsistent with the Venue
Clause because “[t]he provision for offenses ‘not committed
within any state’ is inapplicable,” but does not reconcile this
conclusion with its interpretation of § 3237(a). Maj. at 8
n.4. 16
Because many discrete offenses “relate to or affect”
interstate transportation, the majority’s mistaken
interpretation of § 3237(a) has a widespread effect. Maj.
at 10. Even if the majority interprets § 3237(a) as applying
only to statutory offenses that reference interstate
16
The majority says it is “puzzled” by this hypothetical, because it
is clear that the Venue Clause requires the baggage handler to be tried in
California. Maj. at 8 n.4. Given that § 3237(a), as interpreted by the
majority, applies to the baggage handler’s offense, this amounts to an
implicit acknowledgment that under the majority’s reading, § 3237(a)
would be unconstitutional in many applications.
UNITED STATES V. LOZOYA 39
transportation or an instrumentality of interstate
transportation, Maj. at 10, Congress has created numerous
point-in-time offenses that include such a reference, see,
e.g., 18 U.S.C. § 1992 (criminalizing various discrete acts
against and/or involving railroad equipment and mass
transportation systems); 18 U.S.C. § 33(a) (criminalizing
destruction of motor vehicles or motor vehicle facilities
“used, operated, or employed in interstate or foreign
commerce”). Although these offenses would generally be
committed within a particular state, under the majority’s
interpretation of § 3237(a), defendants may be tried
wherever the relevant instrumentality of commerce has
moved.
But more important, if § 3237(a) governs crimes that
“relate to or affect” transportation in interstate commerce,
Maj. at 10, and is not limited to offenses that are
“continuing” because the “process of wrongdoing”
continues during interstate transportation, Johnson, 323 U.S.
at 276, then the language of the statute provides no basis to
limit § 3237(a) to offenses “whose very definition requires
interstate transportation.” See Maj. 10. And absent such a
limiting principle, “any offense involves transportation in
interstate commerce so long as the interstate transportation
is among the circumstances related to the commission of the
offense.” United States v. Morgan, 393 F.3d 192, 200 (D.C.
Cir. 2004); see also United States v. Cope, 676 F.3d 1219,
1225 (10th Cir. 2012) (“[T]he government need only show
that the crime took place on a form of transportation in
interstate commerce.” (quoting United States v. Breitweiser,
357 F.3d 1249, 1253 (11th Cir. 2004))). Given that it is “rare
that a crime does not involve circumstances in which a
person or instrumentality related to the crime has not passed
through interstate commerce,” Morgan, 393 F.3d at 200, the
40 UNITED STATES V. LOZOYA
majority’s reading of § 3237(a) will swallow the Venue
Clause.
Even when an offense is not committed within any state,
like Lozoya’s offense in navigable airspace, the majority
acknowledges that its interpretation of § 3237(a) leads to
absurd results that are inconsistent with the purposes of the
Venue Clause. See Maj. at 12 n.8 (“We acknowledge that
§ 3237(a) theoretically allows venue not just in the landing
district, but also the takeoff district as well as the flyover
districts.”). Under the majority’s interpretation, for
example, Lozoya could be tried in any district over which
the airplane flew while traveling from Minneapolis to Los
Angeles. She could have faced trial in a state where she, her
accuser, and witnesses never set foot. We should not lightly
assume that Congress enacted a venue rule so contrary to the
Framers’ intent. Johnson, 323 U.S. at 276; Story,
Commentaries, § 1775.
In short, the majority’s reading of § 3237(a) as providing
the venue for point-in-time offenses that could occur in a
single state is not plausible. It conflicts with the most natural
reading of § 3237(a), which is that it provides the venue for
a trial of “continuing offenses,” meaning offenses that
occurred in multiple states. When “choosing between
competing plausible interpretations of a statutory text,” we
must employ the “reasonable presumption that Congress did
not intend the alternative which raises serious constitutional
doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005).
Interpreting § 3237(a) in a strained manner that renders it
unconstitutional in many instances and contrary to the Venue
Clause’s purposes in others violates this principle. Nor can
we overlook these constitutional problems simply because
applying § 3237(a) in the case before us does not violate the
Venue Clause. The Supreme Court forbids us from
UNITED STATES V. LOZOYA 41
interpreting a statute one way in this case and another way
when the constitutional problems we have invited show up
at our doorstep. Doing so “would render every statute a
chameleon, its meaning subject to change depending on the
presence or absence of constitutional concerns in each
individual case.” Id. at 382.
IV
It is a mystery why the majority relies on a venue statute
that obviously does not apply to discrete criminal offenses in
navigable airspace, instead of a statute that has provided
venue for offenses “not committed within any State” since
the beginning of our nation. Section 3238’s text and history
indicate that it governs those offenses, and applying § 3238
is more consistent with Article III’s purposes than applying
§ 3237(a). Because the majority’s interpretation of
§ 3237(a) creates serious constitutional problems that could
easily be avoided, we should adopt the construction “more
consonant with the considerations of historic experience and
policy which underlie those safeguards in the Constitution
regarding the trial of crimes.” Johnson, 323 U.S. at 276.
Therefore, I dissent.