                    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
         André Birotte Jr., District Judge, Presiding

            Argued and Submitted March 7, 2019
                   Pasadena, California

                       Filed April 11, 2019

 Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
     Circuit Judges, and BENJAMIN H. SETTLE, *
                     District Judge.

          Opinion by Judge Milan D. Smith, Jr.;
 Partial Concurrence and Partial Dissent by Judge Owens


     *
       The Honorable Benjamin H. Settle, United States District Judge
for the Western District of Washington, sitting by designation.
2                  UNITED STATES V. LOZOYA

                          SUMMARY **


                          Criminal Law

    The panel reversed for improper venue a conviction for
assaulting a fellow passenger on a commercial flight from
Minneapolis to Los Angeles, and remanded.

    The panel found it unnecessary to determine whether the
government’s prolonged prosecution of the defendant
constituted a violation of the Speedy Trial Act. The panel
explained that because the district court did not abuse its
discretion when determining that a dismissal pursuant to the
Speedy Trial Act would have been without prejudice, any
erroneous application of the Speedy Trial Act would not
have changed the outcome, as the government would have
been left free to file the superseding information on which
the defendant was eventually convicted.

    Because venue was proper on the face of the superseding
information, the panel held that the defendant was permitted
to move for acquittal on venue grounds following the
government’s case-in-chief, and did not waive the issue.

    The panel held that venue was not proper in the Central
District of California in this case in which there is no doubt
that the assault occurred before the flight entered the Central
District’s airspace. The panel held that the first paragraph of
18 U.S.C. § 3237(a), which concerns continuing offenses
that occur in multiple districts, does not confer venue. The

    **
       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

panel held that the second paragraph of § 3237(a), which
pertains to offenses involving transportation in interstate
commerce or foreign commerce, does not confer venue. The
panel held that because the assault occurred entirely within
the jurisdiction of a particular district, 18 U.S.C. § 3238—
which pertains to offenses begun or committed on the high
seas, or elsewhere out of the jurisdiction of any particular
state or district—does not confer venue.

    The panel directed the district court, on remand, to
dismiss the charge without prejudice, unless the defendant
consents to transfer the case to the proper district. The panel
held that the proper venue for an assault on a commercial
aircraft is the district in whose airspace the alleged offense
occurred. The panel wrote that it seems wholly reasonable,
using testimony and flight data, for the government to
determine where exactly the assault occurred by the
preponderance of the evidence necessary to establish venue.

    Concurring in part and dissenting in part, Judge Owens
wrote that while he agrees with much of the majority
opinion, he disagrees with its ultimate holding on venue,
which creates a circuit split and makes prosecuting crimes
on aircraft (including cases far more serious than this one)
extremely difficult. Judge Owens wrote that he agrees with
the Tenth and Eleventh Circuits that the “transportation in
interstate . . . commerce” language in § 3237(a) covers the
conduct in this case.
4               UNITED STATES V. LOZOYA

                        COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.

Karen E. Escalante (argued), Assistant United States
Attorney; Lawrence S. Middleton, Chief, Criminal Division;
Nicola T. Hanna, United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.


                         OPINION

M. SMITH, Circuit Judge:

    Defendant-Appellant Monique A. Lozoya was convicted
of assaulting a fellow passenger on a commercial flight from
Minneapolis to Los Angeles. Following several months of
pretrial activity, the government filed a superseding
information charging Lozoya with simple assault, a Class B
misdemeanor. At a bench trial, the magistrate judge
rendered a guilty verdict, and the district court subsequently
affirmed the conviction. We hold that venue was not proper
in the Central District of California, and therefore reverse
Lozoya’s conviction.

    FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

   On the evening of July 19, 2015, Lozoya and her
boyfriend, Joshua Moffie, flew on Delta Airlines Flight 2321
from Minneapolis to Los Angeles. Lozoya sat in the middle
                 UNITED STATES V. LOZOYA                      5

seat of the second-to-last row on the aircraft’s starboard side;
Moffie occupied the aisle seat to her left, while another
passenger, Charles Goocher, sat in the window seat to her
right. Oded Wolff, traveling with his wife Merav and their
family, sat immediately behind Lozoya in the middle seat of
the last row, with Merav in the window seat to his right.

    As Flight 2321 soared above the Great Plains, Lozoya
wanted to sleep. However, her attempts at slumber were
foiled because the passenger behind her—Wolff—
repeatedly jostled her seat. This purported annoyance was
verified by Goocher, who recalled that “the people that were
behind us were causing commotion behind—behind our
chairs, wrestling around with their stuff . . . . hitting the
chairs, the tray up and down, up and down, up and down.”
Wolff denied causing a commotion; instead, he claims that,
after tapping the TV screen on the back of Lozoya’s seat in
a vain attempt to turn it off, he and Merav went to sleep.

      The incident that led to this appeal occurred later in the
flight, when Wolff and his wife left their seats to use the
lavatory. While the pair was away, Lozoya told Moffie
about the jostling. Although Moffie offered to say
something, Lozoya opted instead to speak to Wolff herself
when he returned to his seat. Lozoya claimed that when
Wolff returned, while she was still seated, she turned to her
left to address the standing Wolff and politely asked him to
stop hitting her seat, to which Wolff abrasively shouted
“What?” and “quickly” moved his hand to within a half-inch
of her face. Lozoya testified, “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,” and so “without even thinking
. . . pushed him away” with an open palm, which made
contact with Wolff’s face. Wolff and Merav, by contrast,
testified that Wolff’s hands were resting on the seats behind
6                 UNITED STATES V. LOZOYA

and in front of him, and that Lozoya yelled at him to stop
tapping his TV screen and then hit him with the back of her
hand, causing his nose to bleed.

    As the various parties responded in shock to the incident,
flight attendant Divone Morris approached them to calm the
situation, and lead flight attendant Terry Sullivan began to
investigate. Sullivan spoke with Lozoya and Wolff, and
asked the latter if he preferred to file charges or would
instead accept an apology from Lozoya. Wolff agreed to
meet with Lozoya at the airport after the flight, and indicated
that he would listen to her explanation before deciding
whether to accept an apology. However, after discussing the
issue with Moffie, Lozoya decided against meeting with
Wolff, and left the airport without apologizing.

II. Procedural Background

    A. Pretrial

    In August 2015, about three weeks after the incident on
Flight 2321, FBI special agent Meredith Burke, who had
investigated the assault and interviewed the participants,
issued Lozoya a violation notice charging her with assault
pursuant to 18 U.S.C. § 113(a)(4). Because the maximum
custodial status of this offense is one year, it is classified as
a Class A misdemeanor. 18 U.S.C. § 3559(a)(6). Burke also
prepared a fourteen-page statement of probable cause
detailing her investigation. She dated the statement August
7, 2015.

    On September 16, 2015, Lozoya was arraigned before a
magistrate judge. Although the judge granted Lozoya’s
request for counsel, he also required a monthly contribution
of $200 towards attorneys’ fees. Lozoya pleaded not guilty,
and the magistrate judge set a trial date of February 4, 2016.
                UNITED STATES V. LOZOYA                    7

The judge warned Lozoya, “[I]f you fail to appear on the date
of your trial, that will result in the issuance of an arrest
warrant,” but set no bond.

    On January 14, 2016, approximately four months after
the arraignment, Lozoya moved to dismiss the case. She
argued that the government failed to comply with the Federal
Rules of Criminal Procedure, which require that “[t]he trial
of a misdemeanor [] proceed on an indictment, information,
or complaint,” Fed. R. Crim. P. 58(b)(1), and that under the
Speedy Trial Act (the Act), the government should have filed
an indictment or information within thirty days of her
arraignment. The government opposed the motion, arguing
that the Act had not been triggered because “the issuance of
a violation notice does not trigger the Speedy Trial Act.” It
also claimed that the procedure it employed in Lozoya’s case
was consistent with standard practices, which Lozoya
countered was incompatible with both the Act and the
Central District of California’s internal guidelines.

    On February 1, 2016, before the magistrate judge heard
Lozoya’s motion to dismiss, the government filed an
information charging her with the Class A misdemeanor.

    Three days later—the date set for trial—the magistrate
judge first addressed Lozoya’s pending motion. The judge
denied the motion, determining that, under United States v.
Boyd, 214 F.3d 1052 (9th Cir. 2000), the issuance of a notice
violation

       did not constitute a complaint and did not
       start the running of the 30-day clock. . . . The
       fact that there was arguably an arrest as that
       term is used under the Speedy Trial Act Plan
       here in the Central District does not meet the
       requirement for a complaint, which is a
8                 UNITED STATES V. LOZOYA

        separate requirement from the issue of an
        arrest.

Even if there had been a violation of the Act, the judge
continued, he would not have dismissed the case with
prejudice. Because the government had filed the subsequent
information, the judge granted its motion to dismiss the
violation notice without prejudice.

    Lozoya was arraigned on the Class A misdemeanor
information on February 9, 2016, at which time she pleaded
not guilty. 1

    Subsequently, Lozoya filed two additional motions to
dismiss the information with prejudice, again arguing that
the Act had been violated. At a February 29, 2016 hearing
on the motions, the government offered to “file a
superseding information and make it a Class B”
misdemeanor, which would “eliminate all the Speedy Trial
Act problems.” The magistrate judge then indicated that she
would reject Lozoya’s request to dismiss the case with
prejudice, noting that “consideration of the seriousness of
the offense, the facts and circumstances of this case, and the
impact of the reprosecution, particularly in light of the fact
that it’s now going to be a Class B misdemeanor, does not
warrant a dismissal with prejudice.” The judge ultimately
decided to defer ruling on the issue until after the
government responded to Lozoya’s third motion to dismiss
and filed a new information.



    1
      Although Magistrate Judge Alexander F. MacKinnon presided
over the first hearing, Magistrate Judge Alka Sagar presided over the
second arraignment and subsequent proceedings.
                UNITED STATES V. LOZOYA                     9

    Soon thereafter, the government filed the superseding
information charging Lozoya with simple assault in
violation of 18 U.S.C. § 113(a)(5), a Class B misdemeanor.
The magistrate judge then denied Lozoya’s outstanding
motions to dismiss, and arraigned Lozoya on the superseding
information on April 5, 2016.

   B. Trial

    At the bench trial, the government called Wolff and
Merav, as well as Sullivan (the lead flight attendant) and
Burke (the FBI special agent who investigated the incident).
After the government rested, Lozoya moved for acquittal
pursuant to Federal Rule of Criminal Procedure 29, arguing
that venue in the Central District of California was improper.
The magistrate judge denied the motion, stating that “[a]ny
offense that involves transportation in interstate or foreign
commerce is a continuing offense and may be prosecuted in
any district from, through or into which such commerce
moves,” and concluding that “to establish venue, the
government only needs to prove that the crime took place on
a form of transportation in interstate commerce.” As part of
her defense, Lozoya called Morris (another flight attendant),
Goocher (the passenger who sat next to Lozoya on the
flight), and Moffie (her boyfriend), and testified on her own
behalf.

    Before pronouncing judgment, the magistrate judge
acknowledged that “[t]his is really an unfortunate situation
borne out of a misunderstanding in a situation that I think
almost anybody that flies commercially can relate to.”
Nevertheless, she concluded that “in this case there was
sufficient evidence to establish that the defendant struck the
victim on his face, and . . . striking the victim would be
sufficient to meet the standard for simple assault.”
10               UNITED STATES V. LOZOYA

     She also found that

        defendant’s testimony and her statements to
        the special agent and to the flight attendants
        contained inconsistencies regarding her
        perceived threat from the victim, and also the
        Court found that the testimony of the
        defendant’s witnesses were themselves
        inconsistent and failed to establish beyond a
        reasonable doubt that the defendant was in a
        position where she felt threatened.

Thus, the magistrate judge concluded that, as to the issue of
self-defense, “based on the testimony presented [] the
defendant used more force than what was reasonably
necessary to defend herself against what she perceived to be
a threat to her physical safety.” The judge therefore found
Lozoya guilty of simple assault.

     C. Post-Trial

    Following the trial, Lozoya again moved for a judgment
of acquittal under Rule 29, based on an argument relating to
venue. The magistrate judge denied the motion, finding her
challenge to venue waived and her motion therefore
untimely. The judge further concluded that the venue
challenge was meritless in any event, as “[18 U.S.C.]
§ 3237(a)’s broad language and the difficulties inherent in
pinpointing the exact location of a crime occurring on an
aircraft traveling in interstate commerce gave rise to venue
in the arriving district.”

   Lozoya was ultimately sentenced to pay a fine of $750
and a special assessment of $10; she was not sentenced to
any custodial term.
                UNITED STATES V. LOZOYA                    11

    On August 11, 2016, Lozoya appealed to the district
court, raising the same three claims now before us. In an
eighteen-page order, the district court rejected her arguments
and affirmed the conviction. This timely appeal followed.

   STANDARD OF REVIEW AND JURISDICTION

    “We review de novo a district court’s application of, and
questions of law arising under, the Speedy Trial Act. We
review for abuse of discretion a district court’s decision to
dismiss an indictment without prejudice for a violation of the
Speedy Trial Act.” United States v. Lewis, 611 F.3d 1172,
1175 (9th Cir. 2010) (citations omitted). We review de novo
whether venue was proper. United States v. Hui Hsiung,
778 F.3d 738, 745 (9th Cir. 2015). We have jurisdiction
pursuant to 28 U.S.C. § 1291.

                        ANALYSIS

I. Speedy Trial Act

    Lozoya was initially charged with a Class A
misdemeanor, to which the Act applies. See Boyd, 214 F.3d
at 1055.

    The Act requires that “[a]ny information or indictment
charging an individual with the commission of an offense
shall be filed within thirty days from the date on which such
individual was arrested or served with a summons in
connection with such charges.” 18 U.S.C. § 3161(b).
Subsequently,

       [i]n any case in which a plea of not guilty is
       entered, the trial of a defendant charged in an
       information or indictment with the
       commission of an offense shall commence
12               UNITED STATES V. LOZOYA

        within seventy days from the filing date (and
        making public) of the information or
        indictment, or from the date the defendant
        has appeared before a judicial officer of the
        court in which such charge is pending,
        whichever date last occurs.

Id. § 3161(c)(1). Failure to adhere to these limits results in
dismissal, which may be with or without prejudice. Id.
§ 3162(a). Because §§ 3161(b) and 3162(a)(1) “must be
read together,” the latter’s dismissal provision only applies
“when a suspect is formally charged at the time of, or
immediately following, arrest, or when a suspect is subject
to some continuing restraint on liberty imposed in
connection with the charge on which the subject is
eventually tried.” Boyd, 214 F.3d at 1055 (footnote
omitted).

    Congress passed the Act to effectuate the Sixth
Amendment right to a speedy trial. United States v. Pollock,
726 F.2d 1456, 1459–60 (9th Cir. 1984). We noted in
Pollock that “Congress was concerned about a number of
problems—such as disruption of family life, loss of
employment, anxiety, suspicion, and public obloquy—that
vex an individual who is forced to await trial for long periods
of time.” Id. at 1460. Lozoya justifiably concludes that
“[b]y the time [she] appeared in court and was ordered to
return for trial, at the latest, these concerns were implicated.”
It would therefore be somewhat disconcerting if, as the
magistrate judge and district court concluded, the
government could hale Lozoya into court—which, it noted
in its answering brief, was consistent with its standard
practice of prosecuting misdemeanors—without triggering
the Act’s protections, even though the Act indisputably
applies to Class A misdemeanors.
                   UNITED STATES V. LOZOYA                          13

    However, we find it unnecessary to determine whether
the government’s prolonged prosecution of Lozoya
constituted a violation of the Act. Even if she were correct
that either her initial September 16, 2015 appearance before
a magistrate judge or the purported restraint on her liberty2
triggered the Act’s thirty-day clock—and that therefore
dismissal pursuant to § 3162(a)(1) was required, because the
government did not file the required information until more
than four months later, on February 1, 2016—the magistrate
judge offered an alternative ruling that dismissal would have
been without prejudice:

        Although this is a misdemeanor, I think the
        allegations of an assault on a commercial
        airliner are not necessarily minor charges. . . .

        There’s an interest in justice. The court finds
        in a resolution on the merits.

        The only—the only evidence of prejudice is
        this issue of contribution of attorney’s fees,
        which the court doesn’t find that that is a
        form of prejudice I think of the type that
        would apply here to seeking a dismissal with
        prejudice. And there’s no bad faith by the
        government in terms of its actions here.

Although brief, this analysis indicates that the magistrate
judge considered the relevant factors—specifically, “the
seriousness of the offense; the facts and circumstances of the

    2
        At her initial court appearance, the magistrate judge ordered
Lozoya to contribute $200 per month towards attorneys’ fees, and
warned her of the possibility of an arrest warrant if she did not appear
for trial.
14                  UNITED STATES V. LOZOYA

case which led to the dismissal; and the impact of a
reprosecution on the administration of [the Act] and on the
administration of justice,” 18 U.S.C. § 3162(a)(1)—and did
not rely on any clearly erroneous factual assumptions.

    Therefore, the court did not abuse its discretion when
making this determination, 3 and any erroneous application
of the Speedy Trial Act would not have changed the
outcome. Even if the Act had been violated in this case,
dismissal would have been without prejudice, leaving the
government free to file the superseding information on
which Lozoya was eventually convicted.

II. Venue

   Although the government’s conduct did not violate the
Act, we conclude that reversal of Lozoya’s conviction is



     3
       The parties dispute which standard of review to apply to the
magistrate judge’s prejudice determination, but our precedent is clear:
“We review for abuse of discretion a district court’s decision to dismiss
an indictment without prejudice for a violation of the Speedy Trial Act.”
United States v. Lewis, 611 F.3d 1172, 1175 (9th Cir. 2010) (citing
United States v. Taylor, 487 U.S. 326, 332 (1988)). Lozoya suggests that
“the Supreme Court actually requires something more than typical
abuse-of-discretion review,” and cites language from the Court’s
decision in Taylor. See 487 U.S. 336–37 (“A judgment that must be
arrived at by considering and applying statutory criteria . . . constitutes
the application of law to fact and requires the reviewing court to
undertake more substantive scrutiny to ensure that the judgment is
supported in terms of the factors identified in the statute.”). But this
language merely offers color and content to guide our review. It does
not suggest that abuse of discretion is an inappropriate standard of
review, and it certainly does not, as Lozoya concludes, require de novo
review. Abuse of discretion remains, consistent with our pronouncement
in Lewis, the correct standard to apply.
                UNITED STATES V. LOZOYA                    15

nonetheless required because venue was improper in the
Central District of California.

   A. Waiver

    As an initial matter, the government maintains that
Lozoya waived her venue argument by failing to raise it until
after the government’s case-in-chief. Our decision in United
States v. Ruelas-Arreguin, in which we “decide[d] whether
[a defendant] preserved his objection to venue when he
moved for a judgment of acquittal on grounds of improper
venue at the close of the government’s case,” is directly on
point. 219 F.3d 1056, 1060 (9th Cir. 2000). There, we held
that “[i]f a defect in venue is clear on the face of the
indictment, a defendant’s objection must be raised before the
government has completed its case.” Id. However, “if the
venue defect is not evident on the face of the indictment, a
defendant may challenge venue in a motion for acquittal at
the close of the government’s case.” Id.

    Here, the superseding information alleged that Lozoya,
while “in Los Angeles County, within the Central District of
California and elsewhere,” assaulted another passenger on
Flight 2321. Therefore, on the face of the information, the
venue defect was not apparent. If true, the scant allegations
in the information would have proven that at least part of the
offense occurred in the Central District, and so venue there
would have been proper. See id. (“The indictment alleged
that [the defendant] was ‘found in’ the United States ‘within
the Southern District of California.’ On its face, therefore,
the indictment alleged proper venue because it alleged facts
which, if proven, would have sustained venue in the
Southern District of California.”). That Lozoya might have
known that venue was incorrect—and, as the government
notes, “possessed [the] Statement of Probable Cause, which
set forth that the assault took place about one-hour to one-
16               UNITED STATES V. LOZOYA

hour-and-a-half before landing”—is immaterial, since “only
the indictment may be considered in pretrial motions to
dismiss for lack of venue, and [] the allegations must be
taken as true.” United States v. Mendoza, 108 F.3d 1155,
1156 (9th Cir. 1997).

    Because venue was proper on the face of the superseding
information, Lozoya was permitted to move for acquittal on
venue grounds following the government’s case-in-chief,
and did not waive the issue. And, because she preserved the
issue for appeal, we review it de novo. See United States v.
Hernandez, 189 F.3d 785, 787 (9th Cir. 1999).

     B. Whether Venue Was Proper in the Central
        District of California

     The government asserts that because “[t]he evidence at
trial showed—and [Lozoya] does not dispute—that Flight
2321 landed in Los Angeles,” and “also showed that [she]
assaulted the victim while the plane was in flight heading
toward Los Angeles,” it was therefore “entirely proper for
the government to bring the case in the Central District.”
Given our case law, as well as the Supreme Court’s guidance
on the proper determination of venue, we disagree.

    “Article III of the Constitution requires that ‘[t]he Trial
of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed.’” United States v.
Rodriguez-Moreno, 526 U.S. 275, 278 (1999) (alterations in
original) (quoting U.S. Const. art. III, § 2, cl. 3); see also
United States v. Lukashov, 694 F.3d 1107, 1119–20 (9th Cir.
2012) (exploring the interests underlying venue and noting
that it is “a question of fact that the government must prove
by a preponderance of the evidence”). To ascertain venue,
                  UNITED STATES V. LOZOYA                      17

        the “‘locus delicti [of the charged offense]
        must be determined from the nature of the
        crime alleged and the location of the act or
        acts constituting it.’” In performing this
        inquiry, a court must initially identify the
        conduct constituting the offense (the nature
        of the crime) and then discern the location of
        the commission of the criminal acts.

Rodriguez-Moreno, 526 U.S. at 279 (alteration in original)
(footnote and citation omitted) (quoting United States v.
Cabrales, 524 U.S. 1, 6–7 (1998)).

    Here, Lozoya correctly asserts that “[t]he only essential
conduct element here is the assault,” and so the first prong
of this inquiry is straightforward. The second prong—the
location of the assault—is a trickier matter.

    Lozoya demonstrates, and the government does not
dispute, that the trial evidence established that the brief
assault occurred before Flight 2321 entered the Central
District’s airspace. Therefore, there is no doubt that the
assault did not occur within the Central District of
California, since we have held that “the navigable airspace
above [a] district is a part of [that] district.” United States v.
Barnard, 490 F.2d 907, 911 (9th Cir. 1973).

    In response, the government argues, and the magistrate
judge and district court agreed, that either of two statutes
conferred venue in the Central District. We consider each
statute in turn.
18              UNITED STATES V. LOZOYA

       i. Section 3237(a)

    The government first argues that 18 U.S.C. § 3237
provided the needed statutory conferral of venue. The
relevant provision reads,

       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 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.

18 U.S.C. § 3237(a) (emphases added).

    We agree with Lozoya that the first paragraph of
§ 3237(a) does not apply here. By its plain text and obvious
meaning, it concerns continuing offenses that occur in
multiple districts. See Barnard, 490 F.2d at 910–11
(applying § 3237(a) in a case where the defendant imported
marijuana from Mexico into the Central District, and
concluding that venue in the Southern District of California
was proper because the offense continued through its
airspace).   Here, by contrast, Lozoya’s offense—the
                 UNITED STATES V. LOZOYA                     19

assault—occurred in an instant and likely in the airspace of
only one district, and the government did not prove that any
part of that assault occurred once Flight 2321 entered the
airspace over the Central District; indeed, it concedes that
the assault ended before then. Section 3237(a) does not
provide a basis for extending venue into the Central District
simply because Flight 2321 continued into its airspace after
the offense was complete. Once the assault had concluded,
any subsequent activity was incidental and therefore
irrelevant for venue purposes. See United States v. Stinson,
647 F.3d 1196, 1204 (9th Cir. 2011) (“Venue is not proper
when all that occurred in the charging district was a
‘circumstance element . . . [that] occurred after the fact of an
offense begun and completed by others.’” (alterations in
original) (quoting Rodriguez-Moreno, 526 U.S. at 280 n.4)).

    The magistrate judge also determined that § 3237(a)’s
second paragraph supported the government’s position. But
that paragraph, in relevant part, pertains to “offense[s]
involving the . . . transportation in interstate or foreign
commerce.” 18 U.S.C. § 3237(a). The government
maintains that “[b]ecause the charged offense involved
transportation in interstate commerce, it was a continuing
offense” for purposes of § 3237(a). This assertion is
untenable, however, because although the assault occurred
on a plane, the offense itself did not implicate interstate or
foreign commerce. Cf. United States v. Morgan, 393 F.3d
192, 200 (D.C. Cir. 2004) (“[R]eceipt of stolen property . . .
is not an ‘offense involving’ transportation in interstate
commerce, for it does not require any such transportation for
the commission of the offense.”). Here, the conduct
constituting the offense was the assault, which had nothing
to do with interstate commerce. As Lozoya notes, “[T]he
jurisdictional element requiring the offense to have occurred
on an aircraft does not convert the offense to one that
20                  UNITED STATES V. LOZOYA

involves transportation in interstate commerce,” and even if
it could be so construed, if would not be a conduct element
of the offense, but rather a “circumstance element” that does
not support venue. Stinson, 647 F.3d at 1204; see also
United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir.
2014) (“Only ‘essential conduct elements’ can provide the
basis for venue; ‘circumstance elements’ cannot.” (quoting
United States v. Bowens, 224 F.3d 302, 310 (4th Cir. 2000))).

    It is true, as recognized by the district court, the
magistrate judge, and the government, that other circuits
have rejected our interpretation of § 3237(a) in cases with
similar facts. However, the reasoning in those cases is not
persuasive. In United States v. Breitweiser, 357 F.3d 1249
(11th Cir. 2004), the Eleventh Circuit determined that an
inflight assault could be prosecuted where the aircraft
landed, but it did not analyze the conduct of the charged
offense, as required by Rodriguez-Moreno. Instead, the
court merely emphasized that “[i]t would be difficult if not
impossible for the government to prove, even by a
preponderance of the evidence, exactly which federal district
was beneath the plane when [the defendant] committed the
crimes.” Id. at 1253. In reaching this decision, the
Breitweiser court relied primarily on a pre-Rodriguez-
Moreno case, United States v. McCulley, 673 F.2d 346 (11th
Cir. 1982), which had concluded that § 3237 “is a catchall
provision designed to prevent a crime which has been
committed in transit from escaping punishment for lack of
venue” without citing any authority for that proposition. Id.
at 350. 4 Similarly, the Tenth Circuit in United States v.

     4
       Certain aspects of the legislative history suggest that § 3237 might
have been intended as something of a catchall provision. As part of
Congress’s revision of Title 18 during the 1940s, the venue provisions
for several enumerated crimes were omitted because they were “covered
                     UNITED STATES V. LOZOYA                             21

Cope, 676 F.3d 1219 (10th Cir. 2012), simply relied on
Breitweiser, without considering Rodriguez-Moreno or the
conduct of the offense with which the defendant was
charged. Id. at 1225. Accordingly, we decline to adopt the
reasoning or holding of these opinions.

         ii. Section 3238

    Alternatively, the district court concluded that venue was
proper under § 3238, which provides that “[t]he 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 . . . .” 18 U.S.C. § 3238. To support application of

by section 3237.” H.R. Rep. No. 79-152, at A109, A112, A120, A133–
35 (1945); see also H.R. Rep. No. 80-304, at A161 (1947) (indicating
that § 3237 “was completely rewritten to clarify legislative intent and in
order to omit special venue provisions from many sections”). But one
relevant report also explained that

         [t]he phrase “committed in more than one district”
         may be comprehensive enough to include “begun in
         one district and completed in another”, but the use of
         both expressions precludes any doubt as to legislative
         intent. . . . The revised section removes all doubt as to
         the venue of continuing offenses and makes
         unnecessary special venue provisions . . . .

H.R. Rep. No. 80-304, at A161 (emphasis added). If the purpose of
§ 3237 were to “make[] unnecessary special venue provisions,” then a
catchall intent might be inferred, but this report also clarified that § 3237
was directed at continuing offenses, not to offenses generally. And at
any rate, even if the legislative history were more conclusive, the text of
§ 3237 is not ambiguous, and “we do not resort to legislative history to
cloud a statutory text that is clear.” Ratzlaf v. United States, 510 U.S.
135, 147–48 (1994).
22                UNITED STATES V. LOZOYA

this statute to the facts here, the district court relied on
United States v. Walczak, 783 F.2d 852 (9th Cir. 1986),
which is readily distinguishable. There, the defendant made
a false statement in Canada—an offense committed outside
U.S. borders—and so the court concluded that venue was
proper in the U.S. district where the defendant was later
arrested. Id. at 853–55. That holding was consistent with
the rule that “§ 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).”
United States v. Pace, 314 F.3d 344, 351 (9th Cir. 2002).
Although the government argues that “[j]ust as offenses
committed on the ‘high seas’ are considered to be outside the
jurisdiction of any particular state or district, offenses
committed in the ‘high skies’ are similarly not committed,”
that position is at odds with our binding precedent, which
holds that “the navigable airspace above [a] district is a part
of the district.” Barnard, 490 F.2d at 911 (emphasis added).
Here, the assault occurred entirely within the jurisdiction of
a particular district. It neither began nor was committed
entirely outside the United States, and so § 3238 is
inapplicable.

     C. Remedy

     “When venue has been improperly laid in a district, the
district court should either transfer the case to the correct
venue upon the defendant’s request, or, in the absence of
such a request, dismiss the indictment without prejudice.”
Ruelas-Arreguin, 219 F.3d at 1060 n.1 (citation omitted)
(citing Fed. R. Crim. P. 21(b); United States v. Kaytso,
868 F.2d 1020, 1021 (9th Cir. 1988)). 5 We therefore direct

     5
      Lozoya observes that there is a circuit conflict concerning the
appropriate remedy when the government fails to prove venue at trial,
                   UNITED STATES V. LOZOYA                         23

the district court, on remand, to dismiss the charge without
prejudice, unless Lozoya consents to transfer the case to the
proper district.

    The proper district is, pursuant to our reasoning and
holding, the district above which the assault occurred. The
government stressed at oral argument that it would be
“impossible” to pinpoint this location, but we are not so
pessimistic. There is no doubt that such an undertaking
would require some effort. 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.6 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

and urges us to adopt the approach taken by the Fifth and Eighth
Circuits—remanding for a judgment of acquittal. See United States v.
Strain, 407 F.3d 379, 379–80 (5th Cir. 2005); United States v. Greene,
995 F.2d 793, 801 (8th Cir. 1993). But we are bound by Ruelas-
Arreguin, and will follow the remedy prescribed in that opinion.
    6
       See DL2321 Delta Air Lines Flight: Minneapolis to Los Angeles
22/12/2018, Airportia, http://www.airportia.com/flights/dl2321/minnea
polis/los_angeles/2018-12-22 (last visited Apr. 4, 2019).
24                  UNITED STATES V. LOZOYA

preponderance of the evidence necessary to establish venue.
See Lukashov, 694 F.3d at 1120.

     We acknowledge a creeping absurdity in our holding. 7
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,” United States v. Johnson, 323 U.S. 273, 275 (1944), 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”? United
States v. Hall, 691 F.2d 48, 50–51 (1st Cir. 1982).

    However valid these questions and the practical concerns
that underlie them might be, they are insufficient to
overcome the combined force of the Constitution,
Rodriguez-Moreno, and our own case law. These authorities
compel our conclusion: that the proper venue for an assault

     7
       The dissent suggests that the Supreme Court’s admonition that
“interpretations of a statute which would produce absurd results are to
be avoided” requires that we reach a contrary conclusion, Dissent at 28
(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)),
but that canon does not permit us to ignore the plain texts of the statutes
at issue. See United States v. Ezeta, 752 F.3d 1182, 1184 (9th Cir. 2014)
(“In interpreting a criminal statute, we begin with the plain statutory
language.”).
                    UNITED STATES V. LOZOYA                            25

on a commercial aircraft is the district in whose airspace the
alleged offense occurred. The dissent contends that common
sense supports the positions of the Tenth and Eleventh
Circuits, as well as its own conclusion. Dissent at 28–29.
Fair enough. But while “there is no canon against using
common sense in construing laws as saying what they
obviously mean,” Roschen v. Ward, 279 U.S. 337, 338
(1929), the statutes at issue here are not obviously
applicable, and we cannot ignore the binding effect of
precedent and the Constitution.

    Congress        can—consistent       with     constitutional
requirements, of course—enact a new statute to remedy any
irrationality that might follow from our conclusion. Indeed,
we share the dissent’s hope, considering the “significant
increase” in inflight criminal activities and the myriad
federal offenses that can occur on an aircraft, Dissent at 26–
27, 29, that Congress will address this issue by establishing
a just, sensible, and clearly articulated venue rule for this and
similar airborne offenses.         For now, though, if the
government wishes to reprosecute Lozoya, it will need to
dust off its navigational charts and ascertain where in U.S.
airspace her hand made contact with Wolff’s face. We know
that it did not happen in the Central District of California.
That conclusion provides sufficient ground to reverse
Lozoya’s conviction. 8



    8
      Lozoya also contends that the magistrate judge applied the wrong
legal standard for self-defense when rendering the guilty verdict. The
parties agree that “[t]he government must prove beyond a reasonable
doubt that [a] defendant did not act in reasonable self-defense,” which
becomes an element of the charged offense. Manual of Model Criminal
Jury Instructions for the District Courts of the Ninth Circuit § 6.8 (Ninth
Cir. Jury Instructions Comm. 2010). But because improper venue
26                 UNITED STATES V. LOZOYA

                         CONCLUSION

   We conclude that the proper venue for Lozoya’s
prosecution is the district in whose airspace the assault
occurred. Because the parties do not dispute that the assault
ended before Flight 2321 entered the airspace of the Central
District of California, venue in that district was improper.
We therefore REVERSE Lozoya’s conviction and
REMAND for further proceedings consistent with this
opinion.



OWENS, Circuit Judge, concurring in part and dissenting in
part:

    While I agree with much of the majority opinion, I
disagree with its ultimate holding on venue, which creates a
circuit split and makes prosecuting crimes on aircraft
(including cases far more serious than this one) extremely
difficult.

    The friendly skies are not always so friendly. 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




provides sufficient ground to reverse Lozoya’s conviction, we need not
determine whether the magistrate judge applied the wrong standard.
                   UNITED STATES V. LOZOYA                           27

(including abuse of children), and yet there remains little
ability to combat these crimes 30,000 feet in the air. 1

    Congress recognized this problem over 50 years ago
when it passed comprehensive legislation to protect flight
crews and passengers from serious crimes. See Federal
Aviation Act Amendments of 1961, Pub. L. No. 87-197, 75
Stat. 466, 466–68. Congress extended the application of
certain federal criminal laws, including the assault statute at
issue in this case, to acts on airplanes to combat the “unique
problems” involved in determining jurisdiction for state
prosecutions:

         In this age of jet aircraft a moment of time
         can mean many miles have been traversed.
         Present aircraft pass swiftly from county to
         county and from State to State. As a result
         serious legal questions can arise as to the situs
         of the aircraft at the time the crime was
         committed. The question as to the law of
         which jurisdiction should apply to a given
         offense can be the subject of endless debate,
         and excessive delay in the prosecution
         becomes inevitable.          The difficulties
         encountered by the overflown State in

     1
        See Sexual Assault Aboard Aircraft, FBI (Apr. 26, 2018),
https://www.fbi.gov/news/stories/raising-awareness-about-sexual-assau
lt-aboard-aircraft-042618 (reporting that sexual assaults aboard aircraft
are “on the rise”); Lynh Bui, Sexual Assaults on Airplanes are
Increasing, FBI Warns Summer Travelers, Wash. Post (June 20, 2018),
https://www.washingtonpost.com/local/public-safety/sexual-assaults-on
-airplanes-are-increasing-fbi-warns-summer-travelers/2018/06/20/64d5
4598-73fd-11e8-b4b7-308400242c2e_story.html (FBI in Maryland
alerting the public that sexual assaults on commercial flights are
“increasing every year . . . at an alarming rate”).
28              UNITED STATES V. LOZOYA

       collecting evidence sufficient to support an
       indictment are obvious . . . . “To contrast, if
       the offense were also a crime under Federal
       law, the aircraft would be met on landing by
       Federal officers. The offender could be taken
       into custody immediately and the criminal
       prosecution instituted.”

S. Rep. No. 87-694, at 2–3 (1961) (quoting the testimony of
Najeeb Halaby, Administrator of the Federal Aviation
Agency). Until now, no court has disturbed the ability to
prosecute federal offenders in the district where the airplane
landed. See United States v. Cope, 676 F.3d 1219, 1224–25
(10th Cir. 2012); United States v. Breitweiser, 357 F.3d
1249, 1253–54 (11th Cir. 2004); United States v. McCulley,
673 F.2d 346, 349–50 (11th Cir. 1982); cf. United States v.
Hall, 691 F.2d 48, 50–51 (1st Cir. 1982).

    I acknowledge that the venue provision at issue—the
second paragraph of 18 U.S.C. § 3237(a)—could be clearer.
But considering what the majority recognizes as the
“creeping absurdity” of its position, Majority Opinion 24, we
should heed the advice of our court—and the Supreme
Court—that “statutory interpretations which would produce
absurd results are to be avoided.” United States v. LKAV,
712 F.3d 436, 440 (9th Cir. 2013) (citation and alteration
omitted); see also Rowland v. Cal. Men’s Colony, 506 U.S.
194, 200 (1993) (describing “the common mandate of
statutory construction to avoid absurd results”); Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (stating
that “interpretations of a statute which would produce absurd
results are to be avoided”). I agree with the Tenth and
Eleventh Circuits that the “transportation in interstate . . .
commerce” language in § 3237(a) covers the conduct at
issue here. It may be that the Tenth and Eleventh Circuits’
                 UNITED STATES V. LOZOYA                     29

opinions are not “tenure track” in their analyses, but not
every legal question requires a law review article.
Sometimes, common sense is enough.

    The troubling result of this case is not limited to these
rather innocuous facts. It applies to any offense that the
majority deems non-continuous, which includes sexual
assault, murder, and so on. See 49 U.S.C. § 46506 (applying
certain criminal laws to acts on aircraft, including, but not
limited to, 18 U.S.C. §§ 113 (assaults), 114 (maiming), 661
(theft), 1111 (murder), 1112 (manslaughter), 2241
(aggravated sexual abuse), and 2243 (sexual abuse of a
minor or ward)).

    Nor is the result limited to the smaller states of the
Northeastern United States. See Majority Opinion 24.
Under the majority’s rule, the government must prove which
district—not merely which state—an airplane was flying
over when the crime was committed. A flight from San
Francisco to Houston potentially crosses eight judicial
districts. A flight from San Francisco to Miami crosses far
more. 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. See Majority Opinion 23–24.

     Venue in criminal cases protects defendants’ rights to a
fair trial. But here, limiting venue to a “flyover state,” where
the defendant and potential witnesses have no ties, makes no
sense. In contrast, a prosecution in the landing district
30              UNITED STATES V. LOZOYA

“creates no unfairness to defendants.” Hall, 691 F.2d at 50.
And a defendant who is truly inconvenienced may request a
transfer of venue. Fed. R. Crim. P. 21(b).

    I respectfully dissent, and urge the Supreme Court (or
Congress) to restore quickly the just and sensible venue rule
that, until now, applied to domestic air travel.
