Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
8-27-2023
Document Type
Article
Citation
Nebraska Law Bulletin (August 27, 2023)
Abstract
The court in Lozoya II chose to apply the law when and how it saw fit to reach the conclusion it desired. It should have either applied the law and ruled that under the Venue Clause, venue was not proper in the Central District of California and recommended legislative action, or it should have overturned Barnard. The latter means the assault would have occurred outside of the districts territory; meaning neither § 3237(a) nor § 3238 apply and the court could have created a new test to determine the proper venue in a way that comports the most with the principles of the Venue Clause.
Clearly, common sense and policy dictates that the court in Lozoya II correctly refused to have venue be required in the flyover district. However, its method of doing so and its solution are subject to scrutiny. Just because the court came out with a better solution than the original hearing does not mean that the court made the right decisions (e.g., applying the law correctly), in getting to that solution. The balancing test, while likely not perfect, does give the courts a better tool to determine venue for in-flight crimes that more closely aligns with the purpose and history of the Venue Clause.
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