Bob CollinsOn July 9, 2015, two passengers had a heated argument aboard a Delta Airlines flight from Minneapolis to Los Angeles.
It started when Monique Lozoya tried to recline her seat and the passenger behind her, Oded Wolff, traveling with his wife, jostled the seatback, claiming later that he was trying to turn a monitor off.
Later, when Wolff was returning from the lav, Lozoya confronted him, asking him to stop hitting her seat.
“I got really scared and nervous, and I didn’t know what was going on, and it felt like he was about to hit me,” she later testified.
So she slapped him.
A flight attendant calmed things down, asking Wolff if he wanted to press charges or would accept an apology. He said he’d accept an apology. After disembarking, Lozoya left without an apology. Wolff filed charges.
That’s led to a four-year legal battle over a question that was answered only this month: in what jurisdiction does a trial take place, given that a flight from Minneapolis crosses eight states?
Lozoya was found guilty of assault and given a $750 fine. But she couldn’t let it go. Her lawyers argued that the trial should have taken place in Nebraska, or whatever state the crime actually happened in, rather than California, where the plane landed.
And now the Ninth Circuit Court of Appeals has agreed, reversing her conviction.
And why not? It’s in the Constitution:
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.
Prosecutors said it would be impossible to pinpoint the exact location of the assault and, therefore, the proper place for trial.
But in overturning Lozoya’s conviction, the majority of the court said it wasn’t so pessimistic about that.
At the time Flight 2321 made its Minneapolis-to-Los Angeles run in December 2018, it apparently traveled at an average speed 368 miles-per-hour, and its route map suggests that is crossed over at least eight different districts during its flight time.
But Sullivan, Flight 2321’s lead flight attendant, testified (for the government, incidentally) that the flight lasted “[a]pproximately three hours,” that he received word of “an assault of some sort” “at least an hour” after takeoff, that he spent “30 to 45 minutes at least” investigating the incident, and that the captain made the announcement that the aircraft would soon be landing, which usually occurs “[t]wenty-five minutes before landing”, after Sullivan finished his investigation.
Accordingly, it seems wholly reasonable, using this and other testimony as well as flight data, for the government to determine where exactly the assault occurred by the preponderance of the evidence necessary to establish venue.
Writing for the majority on the three-judge panel, Judge Milan Smith acknowledged the “creeping absurdity” of the ruling.
Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide—or some other nightmare at 20,000 feet—that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity.
How feasible would it be for the government to prove venue in such cluttered airspace? And given that the purpose of venue is to prevent “the unfairness and hardship to which trial in an environment alien to the accused exposes him,” is it not fair to conclude, as the First Circuit did, that setting venue in a district where a plane lands “creates no unfairness to defendants, for an air passenger accused of a crime of this type is unlikely to care whether he is tried in one rather than another of the states over which he was flying”?
But Judge Smith said the Constitution says what it says.
In his dissent, Judge John Owens said “not every legal question requires a law review article. Sometimes, common sense is enough.”
You do not need to watch Passenger 57, Flightplan, Turbulence, or even the vastly underrated Executive Decision to know that dangerous criminal activity occurs on airplanes. For example, federal law enforcement has tracked a significant increase in sexual assaults on airplanes in recent years (including abuse of children), and yet there remains little ability to combat these crimes 30,000 feet in the air.
He acknowledged the Constitution could have been written better but said the U.S. Supreme Court has suggested that decisions that produce absurd results should be avoided.
Asking a traumatized victim, especially a child, to pinpoint the precise minute when a sexual assault occurred is something I cannot imagine the Framers intended, or the more recent Congress wished when it enacted our venue and flight laws. Yet without the precision that the majority now requires, prosecutions of violent crimes on board aircraft could be impossible. In fact, the government insists that it cannot pinpoint when the assault occurred in this case, and I doubt that the majority’s back-of-the-envelope calculation will be of much assistance.
“Limiting venue to a ‘flyover state,’ where the defendant and potential witnesses have no ties, makes no sense,” he said.
That one hurt, your honor.
