evidence that mr moran was quote st brought to the southern district but after his arrest help me on this it looks to me as you suggested is that the prosecutor just plain dropped the ball none of those guys read the statute it would have been so easy it's just like proving a bank robbery that the bank is federally insured you have somebody say this was a bank federally insured and they said yes and it's probably on every us a checklist  and here you've got the statute you just have the agent testify where was he st brought he was st brought to san diego didn't happen they dropped the ball nevertheless a jury can draw inferences from circumstantial evidence and i don't understand why in the absence of any evidence at all that he was brought to los angeles could have been brought to los angeles but there's no evidence that he was and it would have been really inconvenient the agents work at a san diego why isn't that enough circumstantial evidence to make it more probable than not that he was brought to san diego so two points i think your bank robber examples is a good one for me because when the government doesn't s looked like they might drop the ball and it looked to me like they could just ask to reopen the evidence and it probably would be reopened so they could put somebody from the bank on a stand and ask them is the bank federally insured  introduced any evidence aware mr moran was brought following his arrest but what's the matter with the circumstantial evidence there were six miles from san diego and one hundred miles from l a so i guess a couple things one that the evidence the jury heard was that they also heard that mr moran was put on a boat that was patrolling the entire california coast they didn't know from direct evidence where he was brought after that they didn't know from any evidence at all where the closest sea port was whether close sea port was open they didn't know the boundaries of any of the districts they didn't know how the arrest process work you hear you i mean if you've got a fish you bring them to the closest place where they can freeze your fish service this isn't simply fishing right this is a more of it's an official process and everyone this room knows how the facial process works even more so going you want to get him in jail on shore and six miles instead of one hundred well st of all there's no evidence that it was one hundred miles to the ele hordes and nd of all this as a prosecutor matter what happened actually in this case isn't that far from your honour's example once he was brought to shore he was in brought up all the way to the san clemente border patrol checkpoint for processing which is essentially is at the central district border so in this case that's almost what end up happening  but i think what the the struggle property owners having is you know all these facts about how this process works no one in that jury would have known that because they weren't told by the government so even if you're right why should we remain and give the district court the ability client now he's been deported i was going to ask why you waited until the rule twenty nine motion to raise this issue we literally couldn't have raised that earlier we had of course had indication discovery that my client was arrested six miles off the coast but we didn't know what the government the evidence was going to show as far as we know the government is going to claim that they my client got super close to the coaster that you otherwise was  you got the discovery right showing exactly where he was arrested and then the indictment says that he committed the offense with that in the southern district of california didn't it yes absolutely but this wouldn't be the st case that the government that says one thing and prove at trial so something else and so what the rules say we're supposed to do is if the indictment on its face is valid we should wait for the rule twenty nine dollars to make a will twenty nine dollars we really couldn't have done anything sooner we couldn't the there is no motion for summary judgment in a criminal case so we raise it at the st moment we could which was at the rule twenty nine and we didn't we didn't hide the ball we didn't just say we're making a will twenty nine s to ban you and leave it at that we noted exactly what the government had done wrong and the government if it was on the ball could have reopened its case and introduced the evidence it needed but it didn't and so instead we're left with this paucity of evidence on appeal where the jury simply wouldn't have had any reasonable basis to make any inference at all about what happened to my client because they needed more sure footing to make inference about how my client was treated and where he was brought i say to an example i think in my reply brief of one of our clients who was in fact brought up tele to be processed because the scenario pork had been close so it's just an example of we don't know without evidence in a particular case what actually happened so the final point i want to make is we've been focusing on the rule twenty nine and obviously with all twenty nine the standard is harder for me but i do want to note that even with this court thinks there is sufficient evidence in the record there certainly isn't such overwhelming evidence that it wasn't available that we couldn't have the issue submitted to the jury so  as long as a rational injury could have found in our favor then the court should have submitted the issue to the jury and so here certainly even if you think a reasonable inference from the evidence was the defendant was brought to the southern district it wasn't so overwhelming that would that was the only possible reasonable inference i think we could have made a power to whatever it ends with a jury of had to decide more likely not he was brought to the central district instead of the something that i think are sort of like two bucket of evidence two buckets of evidence or two things i want to point to the st is that when my client was ultimately arrested he was put on a ship that patrols the entire california coast to there was evidence in the record that my client was headed to he was asked where my client was headed he said i don't remember either san diego or l a so that's sort of one bucket of affirmative evidence that i felt was heading north right correct the nd i think much bigger bucket is the bucket of evidence the government didn't introduce at the in the day it was its burden to prove venue by polish the evidence and so oftentimes the most effective arguments we can make a closing is to point to what the government didn't introduce in this case so if the judge had properly name answered the agents who says he doesn't remember maybe you should doubt whether the agent is being truthful when he says he doesn't remember this is exactly what his business it's under the statute so the jury should  that he must have been headed to l a and they dropped the ball buddy trying them in san diego i think that be the argument it's not quite that argument one when the agent asked my client were you headed a corner the agent my client said san diego or l a the agent couldn't behalf of the united states that quote that i do agree in the trial court we simply dropped the ball here and our theory of venue was in fact erroneous and that was the one the district court adopted i agree that all that there are never was in plain view of san diego's major landmarks so a jury could easily conclude that it was that evidence in the record that the boat what's within playing view of san diego landmarks yes right now that's an age thirty eight through forty of record and i was confused about that i didn't think you could see six miles on the city i thought your your view on on the sea was shorter and what they could see was that google maps if you look at google maps you can see where san diego's lit up on the map so you're a minder standing from this is thirty eight to forty of the record that's the testimony of the apple handing agent as opposed to the agent in the airplane so i think he's talking about what he could actually see from the boat there's a little ambiguity as to you know what point in his trip out in the ocean he's talking about in some spots but at the very least at page forty he seems to be saying that from the spot of the rest he could see the sunset cliffs and belmont park so i do think it's the case that he could see at least some landmarks but regardless i think the fact that this is a san diego based agent who is six miles away from san diego permits the reasonable inference that it's more likely than not that you may even be right that the evidence is sufficient that maybe a rational juror could have concluded that venue was properly in san diego but there's also some evidence that may cause a rational jury to go the other way right the boat was heading north even though this was a san diego based agent understand from the record his responsibility is to cover the entire entire california coast and he couldn't remember the agent who arrest that the defendant couldn't remember whether the defendant was headed to los angeles or to san diego so in the absence of some other evidence showing that the new was properly in san diego couldn't a rational jury have gone the other way i don't believe so your honor let me i think there are two the defendant's potential statement that he was headed to eliminate the arresting officer said he didn't remember whether he said he was headed to san diego island or l a ultimately i think that's irrelevant because where the defendant says he's headed has nothing to do with where agents would have taken him so in other words if he'd said i'm headed to new york i'm headed toward you and the agent but but but there's no evidence in the record that the agent took them to san diego direct evidence of that i agree with that your honor but all i'm saying is that we're so we're left with the current record and we're trying to figure out what inferences a rational jury could have made and so you're saying well it's really harmless because the jury could make the rational inferences necessary to find that venue was properly in the southern district of california but given the pieces of evidence that i focused you on couldn't a rational jury have made inferences that venue was properly district of california as well and so push you're saying no they couldn't have tell me why ok so i think the reason is so i've talked about some of the evidence the prox where the agents were based out of where miranda was arrested let me point you know one more piece that i think is important they'd sixteen of the record and twenty two and twenty three of the record contains testimony from the apprehending agent that the boat more ran was traveling in was not equipped to travel in those waters the agent said it was  very small for the elements we were in says it's the sort of boat you see in lakes but not the sort of boat that you see in the ocean and he said it had exposed fuel tanks so the notion that they would take this boat one hundred miles north even though it was not capable of traveling in those waters even though it had exposed fuel tanks even though they would have to take these eight individuals they had apprehended and this unseaworthy boat all the way to l a it's simply not more likely than not that they would have done that so i think that evidence coupled with the evidence we've already discussed certainly would support their reasonable inference that they were brought to san diego but then let me address again just the question is that judg ment is getting and here's where the reasonable juror could have concluded that they were brought to l a not enough to say that a reasonable juror could have decided that they were brought to san diego right and i believe for the reasons just discussed i see where the boat one hundred miles north to l a is that that was more likely than not and keep in mind we're looking at the evidence in the light most favorable to the government and we're purely on a preponderance standard so this is a low standard i think the government has cleared that low bar here and i should point out as well that just as the supreme court said a need or just as this court sudden hill it's appropriate for the court to ask whether there is any evidence that could lead to the contrary conclusion and i know defense counsel points to evidence that he says potentially could but in reality there is no dispute that the constitutional right to be tried in the right place was vindicated moran agrees he was tried in the right place so there could not be strong evidence that he wasn't brought to san diego because that's where he was brought and now certainly the agents do patrol a lot of the california coast but again they were based out of san diego and the arrest happened right next to san diego and if i could point to one case that i think is instructive here it's the  similar sort of situation in that there was no direct evidence that the defendant ever into the southern district of california the evidence simply showed that the defendant traveled from long beach to  mexico with a car full of drugs and that's material want to and the court said that given the time factor given the distance factor and given the probable source of the drugs it was more likely than not that the defendant traveled through the southern district of california in other words it would have taken a really long time the standard through which we have to review this issue in that instance where the court failed to give a venue an instruction to the jury is that the government wins if the evidence could only be interpreted in the government's favor so if the evidence compelled that conclusion then the matter has to be sent back for dismissal is that not correct so i think there are two separate standards at issue one is the sufficiency argument in that case we're only asking whether any rational of your could find venue by a preponderance the jury instruction standard would be whether  every rational juror sensually could find venue by a preponderance if the issue were preserved here it's actually more kin to the sufficiency standard because there was never a request for even your instruction but nevertheless even if the court were to assume that that argument were preserved and to apply the standard that essentially every reasonable juror would have to find then you by a preponderance i think for the reasons discussed every reasonable juror would reach that conclusion  the final point all address is that if the court were to disappear saying what we should do is analyze this under the standard for an object to  where the jury instruction argument i think that's correct i think the sufficiency of the evidence argument was preserved by that rule twenty nine motion and it was appropriate to raise it after trial given that any deficiency believe the appropriate approach here if the court were to decide there's a venue problem would be to dismiss without prejudice that's plain under this court's away a case that's plain under the cat so case which addressed a re indictment in the same district and held that there was no collateral estoppel bar there was no double jeopardy bar when the district court be in the best position to figure out whether it should be dismissed without prejudice i think the district court certainly could address it in the  instance what this court said in cats and it was that it didn't make sense to apply collateral stop holding the issue didn't go to guilt or innocence so that rationale would apply directly here but if the court doesn't think that it can decide the issue in the st incident instance then i agree that   st held that as a matter of law the southern disc of california and the twelve mile if the court was right about that and we think it was and we told the court that then it would follow that both there were sufficient evidence of venue and in fact there was overwhelming evidence of venue because our client was obviously never outside of the twelve miles so we didn't need to re object and tell the judge that yes we still think the southern district only extends out three miles would have to ask for a jury instruction we didn't need to because w clear from the court's ruling at that point that any jury instruction would have been pointless and we agreed that if the southern district exceeded all twelve miles then there was no need for a jury instruction because at that point there was overwhelming evidence that venue was proper so we need to reraise but what  told jack the reason for these rules is there's only limited amount of lying in the weeds you you can get away with without a lot of covering up i think this is absolute not example of wrong with lying in the weeds i mean if the government has the burden of proof for twelve and three and they prove one in two you can just wait to leave close their case to her make your motion sure and we've certainly done that at times but i think in this case that's not what happened that the judge was on notice what our position was which was the southern district didn't extend out twelve miles so it just it wouldn't make any sense for us then to ask the judge for instruction that she essentially told us she wouldn't apply because she thought differently about the boundaries of this other district