Photo Credit: https://www.npr.org/2018/08/20/640103324/man-who-sexually-assaulted-airline-passenger-convicted-could-face-life-in-prison (last visited Aug. 16, 2020).
Written By: Alex Messmore
Senior Associate Editor, American Journal of Trial Advocacy
What happens when a crime is committed on an airplane mid-flight?
In 2017, airlines carried 4.1 billion passengers on flights around the world.[1] With 4.1 billion people, there is bound to be some “turbulence” on board.[2] With that being said, where exactly do charges need to be brought when crime occurs mid-flight?
The Sixth Amendment protects criminal defendants, giving them a variety of rights including the right to a trial “by an impartial jury of the state and district wherein the crime shall have been committed . . . .”[3]
Rule 18 of the Federal Rules of Criminal Procedure requires “the government [to] prosecute an offense in a district where the offense was committed.”[4] But what happens when that district is 40,000 feet in the air?
Congress has attempted to pass a statute to deal with circumstances like this, with 18 § U.S.C. 3237 providing “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.”[5] But that still doesn’t answer the question. What happens when a crime is committed in the air?
The next section of the statute reads “any offense involving transportation in interstate or foreign commerce . . . is a continuing offense and . . . may be inquired of and prosecuted in ANY district from, through, or into which such commerce . . . moves.”[6]
None of these protections explicitly deal with mid-flight offenses, so what happens when an offense occurs onboard? The Ninth Circuit addressed this issue as a matter of first impression in 2019.[7]
In July 2015, two passengers boarded “Delta Flight 2321 from Minneapolis to Los Angeles,” expecting a smooth flight.[8] The flight was anything but smooth.[9] One of the passengers, Ms. Monique Lozoya reported that the man sitting behind her, Mr. Oded Wolff, refused to leave her alone.[10] Lozoya claims he continually kicked her chair, jostling her around for hours.[11] If you’ve ever been on a flight with a passenger like Mr. Wolff, you know it makes for a very long flight. Ms. Lozoya couldn’t stand it any longer, when Mr. Wolff got up to use the bathroom, an altercation ensued.[12] While the accounts of how this altercation actually went down, Ms. Lozoya ultimately used an open hand to strike Mr. Wolff in the face.[13] After an investigation by the staff on board, [14] Ms. Lozoya was offered the opportunity to apologize to Mr. Wolff once the plane landed but refused. [15] Ultimately, Mr. Wolff pressed charges.[16]
Ms. Lozoya was ultimately charged with assault pursuant to 18 U.S.C. § 113(a)(5).[17] However, the government’s battle didn’t end there. Ms. Lozoya’s charges were brought in the United States District Court for the Central District of California, the jurisdiction where the plane landed. [18]
However, Ms. Lozoya moved to dismiss the charge on the grounds of improper venue.[19] The magistrate judge denied the motion, holding that venue was proper in the “destination district” and the district of the airspace where the offense took place was irrelevant. [20]
After being convicted, Ms. Lozoya appealed to the Ninth Circuit, and in April of 2019, the Ninth Circuit held that venue was in fact, improper.[21] While Ms. Lozoya took off in one district and landed in a different, where the altercation actually occurred was in an “unknown” airspace. [22] Relying on the court’s previous holding that the airspace above a judicial district is also a part of that particular judicial district, the Ninth Circuit held that venue in the Central District of California was improper.[23]
What exactly did this mean? It meant that in order to prosecute Ms. Lozoya, the government would have to pinpoint where exactly in the air the plane was when the altercation occurred.[24] The airspace at the moment in time in which Ms. Lozoya assaulted Mr. Wolff would be the proper district in which to bring charges. [25]
The implications of the Ninth Circuit’s holding were profound. Not only did it make prosecuting crimes that occur on airplanes much more difficult, it also created a circuit split.[26] Both the Tenth and Eleventh Circuits have recognized the difficulties associated with requiring venue to be proper in the district in which the offense occurred, holding instead that venue is proper where the plane ultimately lands. [27] The determination of the exact location of an aircraft at the time of a crime poses serious challenges. In less than 30 seconds, an airplane could change jurisdictions. Allowing this determination to dictate an entire case creates a multitude of issues. Who is responsible for recording time stamps of these kinds of events? The flight attendants?
The Ninth and the Eleventh Circuits considered each of these questions before holding that the proper venue was in the jurisdiction in which the plane landed. This solution, while a different interpretation of 18 § U.S.C. 3237, creates a universal solution.[28] Regardless of which airspace the crime took place, a simple answer to venue exists. This alleviates the pressures of the airlines, the airline staff, and fellow passengers in keeping track of time and location in the midst of altercations like Ms. Loyoza and Mr. Wolff.
Interestingly enough, the Ninth Circuit decided to revisit this case en banc, with the hearing scheduled for March 10, 2020. However, due to the current COVID-19 pandemic, this hearing was rescheduled, and the court has yet to decide on the issue. [29] With the status still pending, the holding in Lozoya is no longer binding precedent.[30]
[1]Traveler Numbers Reach New Heights, IATA (September 6, 2018), https://www.iata.org/en/pressroom/pr/2018-09-06-01.
[2] Id.
[3] U.S. Const. amend. VI.
[4] Fed. R. Crim. P. 18.
[5] 18 U.S.C. § 3237 (2015).
[6] Id.
[7] Ryan Plasencia, Criminal Procedure at 30,000 Feet: Finding A Proper Venue For Crimes Committed During Air Travel, Minnesota Law Review, (January 26, 2020), https://minnesotalawreview.org/2020/01/26/criminal-procedure-at-30000-feet-finding-a-proper-venue-for-crimes-committed-during-air-travel/.
[8] United States v. Lozoya, 920 F.3d 1231, 1233 (9th Cir. 2019).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 1234.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Plasencia, supra note 7.
[20] Id.
[21] United States v. Lozoya, 920 F.2d at 1238.
[22] Nathan Lilly, New Developments for Prosecuting Airplane Crimes in the Ninth Circuit, Arizona State Law Review, https://arizonastatelawjournal.org/2020/01/23/new-developments-for-prosecuting-airplane-crimes-in-the-ninth-circuit/
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Plasencia, supra note 7.
[28] 18 U.S.C. § 3237 (2015).
[29] See Generally Rojas v. FAA, No. 17-55036 (9th. Cir.) (April 13, 2020), https://www.ca9.uscourts.gov/enbanc/.
[30] Plasencia, supra note 7.
American Journal of Trial Advocacy 