clegg i should have noted that your court appointed and we appreciate you accepting the appointment thank you very much when him high seas right in the high seas correct yes and he was interdicted by the coast guard along with the others they were held at sea for nineteen days that's part of our argument and due process problem on that one is that he pleaded guilty yes yes waves and white waves in the right to complain about the conduct of the government getting up to that guilty plea normally i would agree but i think it also ties into jurisdiction which i believe you can raise even if you plead guilty because i believe in the jurisdictions and properly applied where you violate a person's right by holding in that seat for one thousand days before bringing them to the united states by holding there for nineteen days they violated that provision of the in the way which requires a person to be brought in without an unreasonable delay and if you violate that and therefore there is no jurisdiction to bring the person into the was going on during that was our arguments why did you wait six days to get permission from the watermelon government to and then why enter one million government took several more days before they finally gave permission there's there was no explanation in the record for the delay other than it just happened you see the problem with these cases is things like this happen on the high seas before the person even gets to united states the evidence is gone you know they destroy the ship but on the seas and  basically bring the person and ship the drugs somewhere else and they appear here there's really no way to figure out why there was a six day delay before they even asked the government i would argue that that divest this quarter the court of jurisdiction just because they waited six days  there's no case on point and what and what case off supports the argument that that would that requirement is jurisdictional just the plain language of the in the l d l e a which require which requires no unreasonable delay and what case suggests that that kind of provision the beat there be no one reasonable delay is jurisdictional i've never seen anything like that because the statute itself is what creates the jurisdiction your honor the statute gives the united states court the power to entertain that kind of action right right but if you don't follow the statu every provision of the statue there are all kinds of provisions like that that that aren't jurisdictional that well go to the power of the court to hear the case correct several courts of look the different parts the different parts of the in the  determine whether they were properly applied whether they were violated or not not every provision of the act is jurisdictional right now but we would argue it's my argument that this provision of it is because it has to do with bringing a person to the united states has to do with actually literally transporting the person here so that we have personal jurisdiction over them if it's not jurisdictional then you would agree with made that the guilty plea waive  issue absolutely your honor we would agree with that and that's why our primary argument today is on the safety valve which i understand there are two unpublished opinions one of which you've talked about in your honor and in the one unpublished opinion that you meant t presents as persuasive my argument particularly is that in this case the government has told you and it's brazen will argue shortly probably that the reason that we can treat  persons like my client differently is because of this international trafficking of drugs called globalization targets the larger root intentional trafficking of a little hill of illegal drugs before the drugs reach but i think that is not a rational reason why witney it be rational for congress to say look the inherent difficulty of policing international drug trafficking particularly on the high seas  no nexus needed but the rational reason that we can distinguish differently is because these drugs are heading to the united states or affecting the united states so it's our argument that if you don't have to have a  nexus to the united states for any of these crimes clearly established case law then how can the reason that we distinguish have a distinction between the two different types of crimes and defendants  relied upon because of an excess so so that's that's the circular argument in this case the government just comes up with its reason ok international drug trafficking is bad and i understand your honor you've already determined that that is in a prior unpublished opinion a rational basis in a legitimate basis and of course that occurred after we filed our pill but we believe that it really isn't because it really turns its head on this whole nexus issue so that's our particular issue as to why it's not rational the other reason your honor that you could look at this as not being rational is because it's our position it's irrational to think that prosecuting wholly foreign drug trafficking is more serious because of its effect on domestic drug trafficking when even defendants who come to die states come to miami from other countries and bring drugs here on ships are treated differently under the safety valve it's the crimes are essentially the same and some may argue there are even more serious when a person arrives here at the port of miami with eight hundred kilos of cocaine as opposed to two thousand miles in the high seas so we think that's an irrational reason to bring to have this distinction whatsoever at  dissenting opinions sometimes become the law as we know and he is the the opinion is that you know the unfortunate of criminal laws of the united states against persons in activities in non us territory in which there is a lack of any nexus or impact in or in the united states exceeds the powers of article one of the constitution and i maintain that with judge acknowledge that we have binding precedent that says that congress in fact can prescribe this conduct on the high seas and under the felonies cause yes you have binding precedent in the eleventh circuit but there is no binding present as as to this issue of whether treating these two types of different criminals safety valve a safety valve there's no binding present as to that and i'd likely has to survive rational basis greg correct but ask that the legitimate reason be very strictly applied safety valve as this court probably knows is something that is not easily given out as a practitioner maybe one in twenty clients you know qualify for it there are a lot of you go through to even become safety valve eligible and here we have a guatemalan fishermen's never been to the united states no criminal history who could have received the safety valve because the judge said he would have given it to him and we just feel that your hon that violates the equal protection clause thank you thank you strip along the waiver issue because i think as judge prior pointed out this is a threshold issue and although it was not argued admittedly in the government's brief i think it kind of depends on how you view the nature of the defense claim here whether it is a class type issue or addressing the constitutionality of the statute or it's more than as applied how he was treated in this case it's not a jurisdictional issue i think that's clear the jurisdiction of the defendants in this case was established under delay then again that's not a class issue that's not saying that the facts as a stablished don't amount to a crime or that the statute itself is unconstitutional i suppose one could look at it you're viewing it from the best defense case that the fact that the statute allows this type of procedure to to happened could weigh on the constitutionality of the statute and i suppose if you looked at it that way then perhaps it would fit under the class rationale of that the statute is unconstitutional regardless i don't think even on the merits if the court is going to address the merits of the claim that one can establish a due process violation here the due process clause does not provide is the reason for the delay and we can look at the nineteen days and break it down what what did the reason for that sixty short the initial period of time what happens in these cases this was a case where there was which at this point is still under guatemalan jurisdiction the on the first day the coast guard obtained permission to board and search the vessel that was obtained on the first day under the bilateral agreement with guatemala which was in the record it was submitted as part of the government's response to the motion to dismiss that's a fifty seven dash one and if you look at page three of fifty seven deaths one under article seven section one b two the procedure to follow once the vessel is searched and drugs are found is that the boarding vessel that obtained permission to board the boarding nation of crew coast guard united states coast guard is authorized to detain the vessel cargo and crew wall permission is sought and obtained to have primary jurisdiction to prosecute so that's what's happening at this point the first six days the united states is detaining this crew on behalf of guatemala at this point guatemala still has primary jurisdiction now unlike the initial permission to board and search which is a coast guard to coast guard communication under these agreements in order to obtain to request and obtain primary jurisdiction to prosecute that's a cabinet level decision so it's not just a matter of the coast guard calling the coast guard that's a decision that has to be made you know first the coast guard has to inform you know its base of operations what's happening and then it has to go all the way up the chain of command i probably to the state department i don't think it's  just the torrent of justice that would make the communication but eventually someone at the state department or a cabinet level here in the united states has to communicate with the government of guatemala so the record does not say why that took six days in this case but that's the procedure that has to be followed is that at some point has to go up through the coast guard to command to the washington to some cabinet level decision to request jurisdiction from the foreign nation under the by a lot of the agreement so you're saying before the people there on the scene the coast guard there on the scene can contact the guatemalan government and ask for permission to take to charge these folks he has to get he or she has to get approval from the state department during the six day war the coast guard doesn't get the approval that the coast guard the united states government has to have approval from the guatemalan government that we will take jurisdiction to they can immediately call it whomever they call the guatemalan coast guard and they confirm yes that's our vessel so at this point this is a guatemalan vessel with people under guatemalan jurisdiction the united states coast guard can't bring them to the united states to the united states that permission to give over this guatemalan vessel to be prosecuted in the united states pursuant to the agreement that that's a cabinet to cannibal thing the took six days to make the request three days in the made government to government so that's something that has to go back to washing you up the chain of command from coast guard to base from base to department of justice to justice probably contest a car you get on spinning out how it may have worked but in the end that's on the no real bright line number of days for us to assess what would be reasonable and therefore necessary once we move beyond this coast guard to coast guard permission is that correct exactly or on the what purpose asks this court to do is examine the reasons and if you compare it to for example the sachar off case which was affirmed in the ninth circuit and i have to apologize i've been under so that case in my brief eleven days of the we refer to was the transportation time like this case if you look at the zacharias case they were detained five days at sea before they even began transport and so if you look at the total number of days and zacher off which was affirmed that was fifteen  days where they were detained at sea being searched before they even began to be transported to the united states for prosecution so that fifteen day period of time is more analogous to the nineteen period of time here the transportation itself and  in this case was ten days and as your honor say you've got a process clause does not provide a bright line rule there is not you must get them there in these days and it certainly doesn't say to the coast guard that you must drop your operations in immediately take detained people at the high seas to the nearest port that's that's not what the court what the what the bill of unitive standard is it's not what purpose asked which asked us to look and see what happened were there oppressive tactics being used did the coast guard you know wander around the ocean on purpose to prolong the detention so to seek some kind of advantage i mean in another case if this court were to see you know see where the person was kept deliberately away from the united states as used as leverage you know because  were going to detain you indefinitely and use that as leverage get away your rights that would be something that could possibly in some other case make a process claim but the fact that it takes ten day or six days to go through the procedure three days to get the consent and then another ten days to get someone physically from a ship on the pacific ocean through the through the panama canal they stopped here and we know in this case in guantanamo and then were brought to to the southern district of florida you know that's normal there is no even allegation in this case that any kind of oppressive tactics improper interrogation or purposeful delay was employed they haven't even alleged in improper the way all they've stayed is that the fact of nineteen days alone is a due process violation and there is just no basis in this record or under the purpose standard to say that that is something that this court can find as if you process violation briefly just touch  on some of the other issues again there was a suggestion i think for the first time that the delay may have caused the loss of evidence i don't think that can be borne out in this record the defendant pled guilty and admitted to transporting eight hundred fifty kilograms of how big is the ship and how long would it take to search a ship like that just in your experience your honor i believe this was i believe although i mean stretching my recollection a little bit in this case that this that the search is the reason for that it took the six days to make the to go to the process of obtaining the request and then three days more of the permission to get jurisdiction i can quickly address the equal protection argument i think is court has held in its recent unpublished decisions that there are ample reasons for congress to make a rational decision that the combat in the transnational drug market which is the source in fact of all cocaine in the united states one hundred percent of the co in the united states comes from the international drug trade and combat in that on the high seas in cooperation with our international treaty partners we made agreements to combat that trade to the fullest extent of the law and congress has found serious or needs requires additional punishment different from an ordinary drug importation case and as to the other i'm d l a arguments i think this court's precedent is clear that prosecuting foreign nationals on a foreign flag vessel is not a due process violation and something that the united states again does through international treaties the court has recognized gives notice that they are subject to the jurisdiction of the united states that is a crime that is universally condemned in the end and attacked by this international treaty regime so i think the standard m d o a arguments about the juristic the powers of the congress and the due process argument about subjecting people for to prosecution in the united states for crimes committed extraterritorial been addressed and we rely on those precedent  unless the court has any further questions about the due process argument we think that there is no even allegation of violation that would constitute a due process violation in this case and we argue that mr christie has convictions should be affirmed thank you thank rigorous briefly i want to get to the zach braff case you have some questions about that interestingly enough in that case which is you know out of the ninth circuit we rarely ever cite one circuit cases but this one's been cited by the government it was a five day search of the vessel on the fifth day after second coast guard crew arrived they were able to find ninety two hundred kilos of cocaine hidden behind fuel tanks and then they had to take their long journey from the south of mexico over to protection there has to be a nexus to united states and they didn't analysis and zakharova determine that there was a nexus which leads me to my last point and that is the argument that i don't think this court had before it on any of these appeals is that the fact that you do not have to find a nexus and it's not a part of the law at all whatsoever that you there has to be any tie to this vessel means that the rational basis of the government's telling you is the purported rational basis for the distinction really isn't that because in fact you can find any vessel anywhere in the world and apply this rational basis that they give you but then when we go to court we don't have to prove that this vessel had anything to do with the united states at all so how it does of vessel has nothing to do with the united states whatsoever at all fit within this rational basis i think it's just going in circles and i enter it with no disrespect of course prior opinions i those were playing air reviews believe plain error review on both of them but the court did hold that had it looked at it  it would have also reached the same conclusion i just asked this court to really think about this the longer this delay in any other context in this country if we brought a person and held them at the sea for six days one thousand days before they go to imagine having any other context your honors we would just find that deplorable and a violation of due process but we've made so many exceptions for these high c crimes of people don't even have any connection to united states that all the exceptions of now in our pinion have just violate the constitution in every way and this is a great case to show how these my and my client took one thousand days to even get thousand days to appear before a court and i think under any other circumstance and or any other type of criminal case anywhere in this united states that would just be considered reprehensible and i don't think there should be an exception for these cases and thank you for your time and thank you mr rodriguez we appreciate you accept being the appointment of the court our third case