allege that part of the conduct was committed within the country continental united states it did that's correct your honor and in fact the part of the proof that trout was that some of the acts in this case relating to  the criminal offense occurred in virginia and elsewhere so why isn't that why doesn't that solve the issue of this the expects a territorial problem if one exists a part of the conduct occurred within the united states and a jury so found well this goes to dispute and the government's argument that the court can essential recreate jurisdiction out of thin air if part of the conduct occurred in the domestic united states and this is a position and that there is a lot of case law to that effect if you don't have a genesis of a continuing defense how can an account be sustained if the court lacks personal jurisdiction over part of it this was a choice that the government could have made they clearly could've indicted mr harris socrate lee on the conduct occurring in japan in the special maritime inter tortola jurisdiction and then they could have charged the other conduct domestically socrate way that was a choice that they made me  someone else in that that is not a military member if if the conduct occurs overseas in the special maritime and territorial jurisdiction of the united states if tried in civilian court he can be tried it and it are the department of justice the prosecution manual also seems to bear that out at least in my reading of it is that right that is correct that's exactly what the manual s so what happens if we agree with you with or is it a practically speaking with regard to count or cain because he was charged and convicted of a lot of things this is one of many what happens well the the st thing that happened the we would request that the court of vacate the conviction on count fourteen and the sentence and of course at minimum the case would have to go back then for recess and saying but because of the facts of this case count fourteen the essentially is sustained count one which was a production count of the video and the most damning evidence in the case came out in count one it was called the reflection video so what we would ask  evidentiary hearing for the judge to determine the prejudice from count fourteen and how is it i don't want is the only production count with respect to h k that that's correct and that was from a video there are more production count how many production counts i'm not sure exactly how many production counts there were but this was the production count with respect to each k the very latest on count fourteen but it think just in terms of your argument about this impacting the whole thing and since a production counts typically the running of the synth thing and if there's more than one i'm just not sure how a single can't not that not not that you might not be right about the personal jurisdiction i'm just trying to sort out what it really means more i understand your concerns you are the reason i'm making this argument is that the most damning evidence in the entire case against mr harrison came with the the reflection video that came in through count one where there was basically allegedly reflection of him and some diplomas in the back so this is what basically sealed the case for the government but they didn't have any of the sky chats that in the district court did you argue that under what we're calling now sort of your jurisdictional theory i want to come back to that that the relief would extend beyond vacating count fourteen i did i did argue that count one was affected by or yes ok so i guess i'm not really understanding why this is a jurisdictional question i thought we have cases saying that personal jurisdiction in a criminal case is established by the presence of the defendant in the court during the criminal proceedings itself i thought this was more a question about whether we can just sort of the the scope of this statute and why there it applies extra territorially but if i'm wrong explain that to me please justice expert so perhaps i misread them yes i think a judge this was the government's argument basically using care for his p doctoring is what they were referring to this of course is an extradition doctrine dealing with the fact that if someone is extradited  s international lines that the illegality basically of the arrest does not affect the personal jurisdiction in the new country but that's an entirely different issue the question here is congress has in  specifically stated that the military has encroached on and jurisdiction over actions occurring overseas in for example a military installation as here in japan and that the civilian court does not every one of the prosecution but congress in the us i understand your statutory argument i just thought that the question it was answering was does this statute apply extra territorially to a military base in japan in your answer was no it doesn't because or at least not as to active duty military personnel because they are more appropriately handled through the military code of justice but i think i'm still struggling with how a district court doesn't have in persona jurisdiction over someone sitting in its courtroom let me try to make it may not amount it may not make a difference whether we think of it as a question about the scope of the offense or jurisdiction but i'm just struggling with how can there not be jurisdiction is sitting right there sure i think th also your honor in answer your question there are two different issues here i know it's confusing and i think the government got them confused in their brief there is a marked difference between the extraterritorial breach of a criminal statute  jurisdiction when there is a a reach it goes outside the domestic boundaries of the united states but that's a different question of whether the court consult has in persona and jurisdiction over a defendant i know those are confusing issues but there are critical in this particular case and then with the several minutes i have remaining i wanted to just discuss the other argument principal a i'm sorry i have just one quick question when was the  and then lastly i'd just like to address briefly the argument that was made by the government that section seventy three could apply to polish the section seventy nine he says statutory construction question  government's argument fails on two canons of statutory construction number one is that the more specific statute should control over the more general i think there's no dispute that the general language of section seventy three which talks about lands acquired for the use of the united states is much more general than the language of section seventy nine dollars which speaks in terms of military missions or entities in in foreign states and secondly the other candidates just for construction that goes to our position is that the more recent statute should control over the earlier clearly here are section seventy three dates all the way back to the founding of this sorry i'm so sorry i just want to go because you get you and you have totally persuaded that it's critical that i understand the difference between the jurisdiction question and the extraterritorial question so i'm remembering now what i found confusing the under th dollars i assume the language that you think of as jurisdictional is the thing about no prosecution may be commenced right but that says it you can't commence a prosecution under this section and he's not being prosecuted under section  thirty to sixty one right he's been prosecuted under the separate statute so that's why i got confused ok so let me try to clarify ok your honor so he was prosecuted under section seven so if you look at count fourteen  states in that particular section that this does not apply to an individual that is refight you know i follow all of that but what how is any of that jurisdictional rather than just a question of what is the that extra it's it seems like it just says you can't be prosecuted under this section a says no prosecution may be commenced against a member of the armed forces subject to chapter forty seven  title ten which is the u c i j unless he ceases to be subject to the chapter or indictment or information charges that the member committed the offense or other defendants at least one of whom is not subject to the chapters doesn't say under this section it's possible i have like the wrong year or something i thought it said subsection d right yes it's thirty to sixty one that's correct you're all right so it says no prosecution may be commenced dot dot dot under this section unless the indictment or information charges that the other person was involved but he's not being charged under this section that's a bit well if you look at the language of his section eighteen u s c section seventy nine dollars ok which is what he was charged under at the at the end of that it says this does not apply to an individual and it says this paragraph does not apply with respect to an offen mr harrison's particular position from being prosecuted for an offense in the special maritime and territorial jurisdiction there for a candidate in persona jurisdiction from a civilian court in favor of a court martial i'm but after noon your honors may please the court and the government's view of the most straightforward way to resolve this case is to conclude that what happened here was a domestic application of the statute of conviction it was domestic because the victim was here the entire time and it was domestic because the defendant was here for a portion of his wrongdoing and if the court views the case that way it need not reach out to grapple with section seventy nine or section three thousand two hundred and sixty one at all to resolve the case effectively satisfying r g r nabisco step one it's a textual indication that in some circumstances congress intended this statute to apply overseas but here the government has even relied on nabisco step one we've relied on general grant of subject matter jurisdiction in thirty to thirty one to hear from an ok it is not that's the st disagreement we have the nd disagreement is he seems to assert that if a prosecution hinges on section seven and you're talking about subject matter jurisdiction another disagreement between the parties your honor judge baca i think that with a defendant is arrested and appears in front of an article three court there is personal jurisdiction full s am where and just just at that thing that goes to what judge harris was talking about so what's what is this support that i need to look to for that certainly and we cite a number of cases for that proposition your honor in when the case came up to appeal before just what the defendant said wait the elizabeth river is not in the special maritime jurisdiction of the united states therefore you don't satisfy section seven therefore the prosecution is back and w then it says exactly what what he's arguing so what's your response to that i have several jobs that are the st filled good the section that leads into that is now gosh twenty dollars fift and fifteen says that the attorney general and the secretary of defense have a memorandum of understanding about concurrent jurisdiction cases and that while the general rule is that when an active duty service member commits a crime that can be prosecuted by both authorities there can be exceptions in cases where such circumstances render it appropriate our argument would be this is such a case now the defendant could challenge that he could bring a couple different kinds of claims right you could bring an equal protection class of one claim it could say you're prosecuting me in civilian court and other people in courts martial and then we could leave it at that point or you could bring santiago is a case from the southern district of new york that my friend sides of both his opening and his reply that too much time had a lot between the conduct on the military base and the article three prosecution but the justice we know does not confer any right on the defendant as to venue and the rules for courts martial judge checker make that plain they sa before the act that we're talking about here so judge that i have about twenty five years so that puts your question in dialog with judge harris i want to get to the statute clearly own pay so this is my point language judge harris that you quoted subsection d says that the limitation there only applies to a prosecution commits under that section of course this case was not commenced under that section so so let's make that real right so we cite in our brief green from the th circuit which is a classic thirty dollars to sixty one dollars case it's a case where eight soldier goes off base and murders iraqi civilians so it's outside the united states that's no practice differs in britain itself i pulled the docket in that case to the last line of the charges that were issue were in violation of the title eighteen substantive provision and in violation of three thousand two hundred and sixty one dollars but the point is the same if domestically in the united states why isn't that least that subset of the even you know we can i'm sure you take the position the pope would apply but certainly the commission a part of the offense in the united states would seem to resolve the issue and so we don't have to worry about whether or not the not any of these other statutes apply what was in that the answer to this question is a perfectly i full answer to the question i agree well but your opponent says that that's not correct because that all the cases that deal with that are cases that deal with venue and not jurisdiction so what's what's your response to that a few different sponsorship of the st is contrary to my friend on the other side i disagree if there's anything wrong with looking at the venue cases in this context in the reason why you read it i'm sorry but he also says that the you had a choice in the way you framed this indictment you could just charge separately you charged you know two separate offenses and you have to live and die with the consequences of that some curious exactly what those consequences are because it seems to me that i don't see any but maybe i'm missing something ok i want to get t and asking to the same question for purposes of jurisdiction in extraterritoriality an example that i would give your honor is a few weeks ago this court decided kids called i on pluto about venue in one thousand three hundred and twenty six prosecutions in doing that it cited cases about the statute of limitations why did it do that because both the statute of limitations cases and the venue cases ask where is this offense occurring and when so there's nothing problematic with doctrines talking to each other and that's true  here my friend also said that there's a body of law suggesting that if the court lacks jurisdiction it i've won but is seized of jurisdiction of time to it lack jurisdiction forever i read my friend's cases i'm not sure which body of law he's refer because it's a continuing course of conduct involving the same claims we address this in our belief when we describe how the court would handle a gates alternative theory and let me unpack that for a nd if the court were to conclude th step judge he has as you suggested and resolve the case on what he's in the united states for part of the time then you might ask yourselves what do we do if part of the count is based on a legally valid theory and part of the count is based d on a legally invalid  and my submission to the panel is i think that's just a gates alternative theory by which i see this comes up all the time so like in jefferson for example there was a fraud counts that was arguably bad after skilling and so then the question you have to ask is took the fact that the defendant is in the united states for some but not all of his conduct combined that with the fact that the victims in the united states and said all of that means that this is a domestic application of the of this statute they didn't say i understand another way to look at it would be to say even if the fact that the defendant is in the united states for some of the conduct doesn't make it a domestic application maybe then we can have this yates question about can we divide out maybe we can but i'm not sure you have to get there it seems to me that you can take account of the fact that the defendant was in the united states for part of the conduct in deciding that this is a domestic application of the statute period the whole thing it's a domestic application of the statute and that seems to be i don't have the cases in front of me but the way at least maybe it was the d c circuit handle back question that's right that's that's what exactly correct which are ok let me put it in a single sentence they are two roads  i'm this question about the implications of the charging decision and maybe i should ask your colleague this too but i'm not even understanding the indictment says that this is in violation of section two  seven in this indictment is doing two things simultaneously it is telling you which congressional power we're relying on right so we're relying on both the power to regulate interstate commerce and the power to regulate conduct rate and it's a little bit for extra terrio tauriel application in our old case the ergo serve whatever yes ok but it seems to me like we should all be able to agree that the one thing it can't be is a criminal charge because that's not a criminal offense that's right that's what you can respond to this the there at least had to be a requirement that the defendant was in the united states when he committed part of the offense not necessarily that he committed all of the offense from overseas so which one is it i mean no he does not have to be  was in the united states for part of the time contributed to a finding that the entire indictment is a domestic application that that factor is in just like the victim's presence in the united states and so you don't have to do the the yates theory where you're saying well maybe it's not a domestic application but maybe we can count on the fact that the jury only convicted based on the time spent that the defendant spent in the united states i think a defendant who was in the united states who was doing drug trafficking activities and europe and so when the d c circuit said that and applied our jr nabisco step to it did it in that context but we cite in our which is a nd circuit case that involved a hacker helper seize who hacked into american computers here in the united states and the court applied the exact same r j are nabisco step to reason that you can't see it in other words what i'm saying is it's bi directional you could do the r j r nabisco analysis because he's partially here even if he's doing things abroad but you could just as easily do with the nd circuit did and say under our jr nabisco step to the conduct that is the focus of the statute happened here because on our view the conduct that is the focus of the statute is coercing this young woman into producing child pornography for this defendant judge that are you asked about we wouldn't have personal jurisdiction over a totally overseas defendant that's right we'd have to be extradited and when he was successfully extradited and he had again focus on him from an article prejudge we would have personal jurisdiction this defendant stood before an article three judge we have personal terms i thank you missy i thank you very much as mr becker you've got some the important distinctions in this case between the extraterritorial reach of a criminal statute and a question of in persona jurisdiction the government talk repeatedly about subject matter jurisdiction this case has nothing to do conduct occurred overseas in the special maritime and territorial jurisdiction of the united states whether the civilian court had in persona jurisdiction or whether a court martial had in persona jurisdiction that's but that's not accurate the conduct did occur soley within the confines of an overseas location as occurred in part there but also occurred in part domestically so that does not change the analysis i don't think it does change and also is because i think if part of the indictment certain decision as to how they drafted the claim and it would be by analogy the government that all why what is a civil case have to do with the criminal prosecution of him well the nothing other than the fact that it was the government's choice here harris with this kind of conduct yet they did it together to get a tactical advantage and now they should not be able to benefit from the way that they charged it because so they could have us suppose that would have been subject to some claim that perhaps the counts  multiplicity but having combined them in one count as they have the facts don't change right whether they start them separately or as one what's the significance of charging them separately well if they if they charged them separately then we wouldn't have the same argument that the entire account is nolan voided our position is that because the district court lackey can push on them jurisdiction with respect to the conduct occurring overseas that therefore the entire county is void the district judge here basically said i understand there's a problem you know possibly in light of meijers an act meant the enactment of section seventy nine of title eighteen but he said i'm still to assume that i have jurisdiction but he was you know i think intellectually honest enough to mention that these were venue cases he was relying on not in persona cases that's that's what's lacking here and so it's our position that the continuing nature of the offense is a venue question and it does not a remedy the defect in a lack of in persona jurisdiction so if the so i'm sorry say you think that  i mean i can find i guess it's there in the government's brief on piece lemon and there are all these cases where the th circuit has said what gives a court in persona jurisdiction and a criminal case is the physical presence of the defendant in custody  courtroom and i just i'm not understanding it so but in your view if the defendant is sitting in the courtroom the district court has in persona him jurisdiction as to his conduct in the united states but not in persona he doesn't have jurisdiction over that person with respect to some stuff he did before in another country even though the person himself is right there that's correct because in this particular case with the pass congress explicitly removed in for signing jurisdiction from a civilian court in ok where is the language that says that is where is the language that says a civilian court no longer has in persona jurisdiction a certain criminal defendant sitting in the military courts say it and the legislative history says there the government has not cited any authority in support of their position for this there is no in person and jurisdiction over mr harris for his conduct in our argument is if the district court la the government that a court can be reinvested out of thin air within persona jurisdiction where it lacked it for the genesis of the county just no case law individually we obviously cannot do that here today but want to thank you again for your advocacy in front of the court and wish you well and that you remain safe thank you very much thank you for your time