sixteen there was a circuit split in the united states took the position that the jurisdiction that someone left in a sort of case may have had a connection to that case is a place where he either had to register or at least in some way informed as they are the argument was that it was still a jurisdiction involved with the supreme court did in nichols which was not even you kate used but is still very important because what the supreme court did was indicate that under the text of sort of the jurisdiction you left is no longer a jurisdiction involved you have no legal duty there whatsoever you have a legal duty if you go to a new jurisdiction to register there so the government in order to try and argue that venue is still appropriate in their jurisdiction or you have no legal duty makes the argument that well under car the travel is an essential element in the travel occurred there and thus there was some conduct you engaged it would you do a search will element of this crime or  a federal conviction or your body crossed a state line but just because something is an essential element does not mean it is a place where conduct necessarily occurred  but carr says doesn't it that this is not an element in the nature of a jurisdictional hook at least only that this trial is the very conduct at which congress took its you know gifts and your honor and i think it's a of circumstance element in your your honor i would disagree because as we're here today talking about venue conduct is a legal term of art in these venue cases that we in the government talk about conduct unfortunately for my position i think this adds to the confusion is also explaining glitch word with a plain english me and i think it way over reads car to say that their use of the word conduct in a case that didn't mention the word venue was actually using that term is a legal term of art in the venue context they were using kind of was because they had to explain why the travel had to be outlaw so i mean it's not like it i understand what you're saying that it wasn't they you case but it's not this was sort of day and it was important for reasons that are related to this case it was more than  and your honor i would disagree that in our context it's more than a jurisdictional element but the supreme court said in car is that congress use the word travels and by using the word travels it had to be a forward looking analysis congress did not use the word trav told so it was not a submit saying that this was therefore necessary conduct in order to make the argument that the government wants to mate that this creates the sort of nexus we're talking about there has to be what it wants to be is a nexus between the travel and the failure to register and car came out in two thousand  in the decade since i'm not aware of any district or circuit court that has adopted the argument that a defendant could say i am not required to register under sort because when i traveled from one state to another i was either in the custody of the bureau of prisons or i had no intent or i went to colorado one of the cation and i decided it was so beautiful i was going to stay there please send my stuff that's what the government's position requires and in fact they admit as much in the their brief they see this candy of jurisdiction element because it's a nexus but again i'm aware of no case in a decade that has actually created that nexus i think very instructive case with this court cites and bowens and actually another thing your honor bowen's from this court in two thousand expressly said that when looking at a venue we do not look at the overall congressional purpose of the statute so the supreme court i'd say that when congress passed this law part of it take a step back ten thousand foot purpose was to say let's try and find  prove but again looking at the structure of the statute it's in the same place in the statute as the federal conviction it does not say someone who travels knowing that they're traveling in interstate commerce intending to avoid federal jurisdiction and you know i think very interesting thing to look at is the supreme court in one thousand nine hundred and eighty eight case in carolis which the defendant there was charged with a drug conspiracy in missouri she was also charged with money laundering in florida were related to that conspiracy so obviously she was connected to the conspiracy and the essential element was a crime that had to be criminally derived proceed essential element of the crime was that the money she laundered in florida had to be derived from the crime which in that piece was in missouri and the supreme court said that's all true it for purposes of venue that's all irrelevant the only to nichols the unpublished cases from this circuit in the majority of circuits do come against us but i do not your honor think any of those cases in gauge this question at the level that mr rubin and i it and i think it's very telling to get back just quickly to the careless case that in one thousand and eight the supreme court said they knew doesn't allow you derive criminal proceeds in missouri from a conspiracy you are part of but the money laundering florida so the proceeds were criminally derived if the defendant was involved in moving them to the new jurisdiction congress could do the exact same thing here your honor if congress wants venue to lie in the jurisdiction that someone it could amend the statute to say if someone's interstate travel was knowing or voluntary or is in any way for the purposes of evading jurisdiction then that person then you could lie in any state he left or any state he went through and it's very telling that congress did not do that congress kamin the statute congress didn't amend the statute and your honor i do think to get back to your question that the majority of circuit before nichols came out there was still an open question as to whether you had an actual legal duty in the state that you know i did and i did look at the cases and i there was one i can remember which circuit that relied on that but although most of the other key slide that nobody by and large they preen ical is cases where not relying on the idea that you had a legal duty to inform your state of departure it was more that you're traveling right and in your honor for all the reasons given in our briefs we disagree with that i do think when there's an open question as to whether you have equal duty somewhere addressing the venue question becomes much easier if you feel there needs to be this connection and i understand that in the majority of these cases and in fact based on what we can tell from the record in mr spy vs case he voluntarily left north carolina but i think the government's position if this court were to adopt it and if this court were to affirm the district court really does start to prove too much if mr spidy left north carolina went to colorado registered in colorado six months later changed jobs and did not update his registration could venue lie in north carolina under the government's theory then you could apply in north carolina because the only way he's under sort of is because of the interstate commerce hook you may get six months you may get a year you may get two years later i think the supreme court and that's all that's required under the current understanding of the statute to create the nexus it ensures the nexus a sequential reading and if the supreme court had meant something different  over the last ten years someone in some of these hypotheticals that we talk about a move to colorado when i leave to go to colorado way of absolutely no intention of staying there but i changed my mind at some point these cases would have case and it is this court held in bowen's over all congressional purpose does not ask and answer the very question what asks and answers the venue question is the place where the defended had in this case a legally required act or where the defendant gauged in conduct and the travel in sorta does not need to be knowing does not need to be voluntary does not need to be undertaken with any improper purpose and i don't know if the government still has this position but at least in the nd circuit in the litigation there they called it a jurisdictional element and said it didn't even need to be voluntary that if someone's in the bureau prisons and they're moved from one state to the other that's enough it's a jurisdictional checkbox that's the position they took in the gandhi case and i think it's the position that supported by the text and structure of the statute there's  conduct occurred your honor i didn't think it i didn't think it was about where you form the intent and your honor i think you're right it's where the conduct occurred but mens radio is relevant to answering that question if i have to know we do something if i have to intentionally do something then that indicates that that is conduct that i am taking in some voluntary way if however and congress has the overall purpose of regular leading the trafficking of firearms in interstate commerce but obviously the gun no one argues that venue is where ever the gun passed through or that the defendant had to know or the defendant had in ten they the gun could have moved in interstate commerce years before the defendant became aware of it this is very similar it with the supreme court said it to get to judge rushing point that you have the sequential reading they didn't have more they said the sequential reading ensures the nexus not that you have a sequential reading and of course the interstate travel itself must in some way be connected to the failure to register other than because obviously the supreme court may change its mind but you're disagreeing with what you said in your brief and i think you know or not plain that might become plain because the supreme court might change its mind right i mean this supreme court could at this point is a stand here today it is not firearm even when that element was added to the statute it didn't matter if the travel of the far happened before the set you had on this program specifically rejected that and actually compared it they said in this case the proper analogy is not as a seven circuit suggested between the trouble of a six hundred in the movement of a firearm it is between the sex offender who travels and the convicted felon who possesses to me i think that that is that is the debate here between the parties and really the question comes down to i think we all agree that the trial is an essential element is that it conduct and i would just submit that that question is not an open one because carr says that it is eight hundred tell and i think that you know in the briefing mr brady that my friend said that it was really just jurisdictional and this this aspect wasn't central of the opinion but that was the case what i just described that analogy with the th circuit that was what led to the holding so this was not data it wasn't a mere suggestion and it also wasn't just one phrase i mean it was crucial that it is conduct so the idea that it's just a jurisdictional element i would submit is not available as an argument thanks to car now from there i would submit that the venue analysis becomes pretty straightforward and it kind of explains why most of the opinions on this and there are many just what you mentioned the circuits and the pains of this court the house this is in most of them fairly straightforward because once you accept that the interstate travel  they conduct all and then you simply have to look at three thousand two hundred and thirty seven day which says that when any offense against the united states begun in one district and completed in another you have venue in either one of those places and so here we since interstate troubles an element this offense did not begin and end in colorado and yet involved interstate travel as an element it doesn't make any sense so if it didn't begin in colorado where did it begin began in north carolina when he committed  and interstate travel from there and so i think from card to that it is a pretty straightforward reading and i would address very quickly that the overwhelming majority of circuits even prior to nichols that addresses they were not relying on the jurisdiction involved statutory language that nichols address they were taking the same analysis we take care of the only exception being chairs you mentioned i think it was a tennis circuit and lewis and that had it had it frankly a very complicated analysis for i think more complicated than this court needs to engage and it did also credit the analysis we're taking on the way that it said alternatively the home state is a jurisdiction involved we know that's not true now but other than that and then now i would also note that after the seven circuits opinion and hasle anything and it's not hard to imagine why nichols doesn't change anything because nagel's when i say it's not a venue case i don't mean that in a hand waving technical way i mean that nichols wasn't about the terms that we use to describe that it wasn't even about the same element we're talking about and i think that's what really distinguishes nichols i mean the element in this case that confers venue on the departure jurisdiction is the interstate travel that was not even an element of the crime at issue because nichols was about a federal sex offender little sex offenders you don't need to travel interstate commerce so we know that nichols has nothing to say about that interstate commerce element because it wasn't in that case and more than that it was just pure sashadhar interpretation about what jurisdiction involved me it doesn't matter do and i just wanna give you a chance to address your colleagues argument about intent i totally understand your argument does it matter that the travel doesn't apparently have to be intentional i don't think it does  you know i haven't really seen those cases although i'll certainly knowledge that the travelling as in the bureau of prisons is certainly a realistic hypothetical i don't think it matters and one case that you could look out for that and this is one of the cases on this is the holcomb case of the nd circuit now i think the  nd circuit's case was a little more crystal clear on the fact that mens rea has nothing to do with venue and they cited to their own opinions and rejecting that argument i think that was very useful discussion and there i will say that i found and this is not in the briefing i think it sort of came on earth as we what it said was it didn't matter that in a case where the defendant are you didn't anticipate his securities fraud conduct would reach into the district he was tried in this course one that it doesn't really matter then you is and this is the quote similar in nature to  holman and therefore the measure a aspect doesn't extend to the venue i think it's not exactly on the same point of doesn't matter whether the element is intentional but i would submit that it doesn't particularly when you think about the fact that they do not like personal jurisdiction  conspiracy or one of the overt acts done by somebody else was done in another state and all the sudden there's value in that state so there's not some sort of requirement that ties your personal intent with the form that you end up in there is one that requires the conduct in here we know this the seven circuit i think the dissent in that case as a very nice shot of explaining what we think about it which is that it just is not compatible with a car and with great respect to my friend i think his argument is not composed car car said it's it's the conduct that congress was targeting and if that's the case then that is where the interstate travel occurred is appropriate for venue in this case to be endorsed caroline if the court has any questions or concerns i would be very happy to address thank you your honor in looking at the various cases instances in which a venue is failing versus when they're not found the ones where venue is found all have something that is lacking here which is a hook in the text of the statute so we look at the bones case it says that the court that was a case of harboring a fugitive so the eastern district of virginia issued an arrest warrant the defendant the the fugitive the person for whom the war was issued in south carolina despite virginia is strong interest in the case there was nothing in the statute that required the defendant that connected  virginia all the conduct all the harbor it had to be in south carolina now contrast that to cases where this court has found venue in homs act robbery in this again was the but once case discussing why venue would lie anywhere that commerce was affected by the robbery and the answer is because in the homs act itself it has to be a robbery affecting commerce so they are in the text of the statute you have the word affecting commerce anywhere commerce is affected there's been much like in the case mr ruben said you need not have entered that state but if you hijack a truck and you know that the trucks going to virginia and you hijack it outside of virginia and you're affecting commerce in virginia then you could lie in virginia same argument the supreme court rhetoric is marino talked about the fact that if you have a nine hundred and twenty four c you use a gun in route during and in relation to a crime of violence where that crime of violence occurred then you can lie there even if you never brought the gun into that state and that case the person used the gun in maryland and the kidnapping they knew was proper in new jersey but again it's from the statute during in relation to and that is what is lacking here and i knew a car uses the word conduct and i wish it had used a different word so i think it would clarify a lot of the confusion here and yes it is an essential element and if the government does not prove that to a jury beyond a reasonable doubt you don't have a conviction by the same token if the government doesn't prove that you had an obligation to register beyond a reasonable doubt you don't have a sort of conviction in the difference here is that for neither of those elements this defendant actually have to do anything all that has to happen is that a state line was crossed by his body if i may finish with the implications of the government's argument buying what the government says it extending car to say that this nexus is more than sequential conduct so the supreme court said sequential reading is what yours the next is if this court starts to find that actually there is there has to be under the statute a nexus between the interstate condo in the failure to register then what comes next defendant start getting jury instructions on that point the juries have to find a connection beyond a reasonable doubt or they're going to be trials about oh we had i left for colorado i totally planned to come back and then i didn't come back and none of that has come up but buying the government's reading and expanding car expanding what again i think was one phrasing car which was a case about interpret ing present tense verbs and saying that no there is some a more if is next is outside of the text of the statute that the government needs to prove is going to cause a whole lot more problems than whatever problems it purports to solve and i would respectfully submit is certainly outside of the judiciary's role of adding a nexus element to the statute in order to save it if the statute violates federalism by not having enough of a connection between the interstate travel and the failure to register then it's outside of congress power to write in this court cannot rewrite it to save it thank you very much your honour's