for conduct that occurred abroad and that is under what lawful authority was i brought here and placed in this country's jails and that requires analysis of both due process and the stat the jurisdictional language in the statute starting with due process this court held in new south and el castor that to prosecute a foreign national for conduct that occurred outside of the united states there must be some nexus between the conduct and the united states this is necessary to avoid arbitrary and fundamentally unfair application of our laws to the defendant and it's also about the location is it fair to prosecute that person here and this country that has no nexus to the conduct  it's similar in some ways to the work that due process does in the personal jurisdiction analysis in a civil case the question is not is it fair to commence the civil lawsuit rather it's is it fair to bring the defendant into this jurisdiction and commence the stood against them here and in that context courts look at minimum contacts and fairplay substantial justice here this court set and use of an outcast or you have to look to whether there's a nexus there is no competent evidence and the record establishing a between the conduct at issue and the united states fair to say that the question here is whether that argument applies as to a stateless vessel your honor i think that's a question and i think it does apply and in the event there's no compton evidence that this was a stateless vessel this court's language asked the nexus requirement has been categorical it doesn't provide room for an exception nor should it because the arbitrariness in the unfairness o bringing someone who lacks any nexus to this country here applies no matter what kind of vessel they were on they were outside of our borders they did not come here and submit to our laws they are not a national of this nation and so i think that it is consistent and the necessary application of this court rules in any event there's no competent evidence that this was a stateless vessel and i want to make clear the parties below in the court below we all assume and this is not a problem just making clear the assumption that to analyze whether it's a stateless vessel to prove the negative we apply the framework that exists in the statute there's no authority that that's the framework you apply for the constitutional question if statelessness is in fact assuming argument that it's to mean that it's relevant which we don't the claimed country tonight nationality your honor that's a very interesting question there are two steps to analysis first there has to be evidence of a claimed country and then there is a denial there's no compet evidence that same fence in the granite dns or any country was claimed so under seven zero five two d which again we're using just as a framework for statelessness under the due process question it's not there's no authority saying that's how we do this and he didn't claim a country that stateless that's true your honor but the government again would need to prove provide competent evidence that there was a lack of claim that is somebody would need to come from the coast guard you know when you arrest someone on the street the arresting officer needs to be prepared to in and testify you arrest someone on the high seas you would need to bring in a coast guard to provide competent evidence that there was no assertion of nationality here the government says there is an assertion of nationality but the only evidence provided of that is in an affidavit it's not just out of court testimonial hearsay but it's also someone who has no firsthand knowledge it's a random person we don't know on what basis he knows this we know that in the coast guard paperwork there are lots of mistakes in accuracy which is unsurprising but that's why the sixth amendment provides a confrontation right to ask questions a medley on the act that we're talking about i think requires that the coast guard has the person who holds below that it's beyond a reasonable doubt the first circuit has said that it's a preponderance standard but the government bears the burden of presenting competent evidence of that necessary first step both for purposes of the statutory jurisdiction the subject matter jurisdiction language and the medley of but also for the due process nexus requirement and both cases the government failed to present and we asked for a hearing we asked for a hearing first on the nexus the government said the assertion of a nexus with the united states or statelessness is that your position that state looseness is an element of the offense or goes to subject matter jurisdiction your honor we believe that it it appears from the statute i think judge front of  opinion for the d c circuit and miranda is very clear analysis of this it appears from the statute that it's a matter of subject matter jurisdiction now there is some question that when you have a factual finding in the to necessary prerequisite for the establishment of guilt in the judgment of conviction a criminal case under the supreme court's precedent and eileen versus the united states that's an ingredient of the offense and it has to be submitted to the jury we asked but the important point i would make yours we ask for a one way or another to challenge this and the government's position is it's neither this subject matter jurisdiction you don't get a hearing before the court nor is an element of the offense but your honor i do believe the judge front of ass and persuasively explained why as well as the fifth and the eleventh circuit of the first circuit has ruled to the contrary but that this is subject matter jurisdiction it's non wave a ball and the got in the court has a responsibility to to assure itself that the jurisdiction is proper so for example if you brought someone in here from the high seas and non us national and charged them pursuant to the medley and say they want to just go pro se and immediately enter a plea the court still has to satisfy itself that has subject matter jurisdiction when a civil case is commenced if the parties come in very quickly and they say we have a settlement we'd like the court to retain jurisdiction to enforce the settlement the court still has to satisfy itself that it has subject matter jurisdiction is there complete diversity vacated and i think that when the government bring in the you when you compare it to is there a federal cause of that action i would have thought that's not subject matter jurisdiction and that this is more analogous to is there any cause of action then with the i understand what you're saying and it's true under eighteen u s c thirty two twenty one it says that the courts of the united states have subject matter jurisdiction over all federal claims but here it that's been modified and the medley as it says that the jurisdiction of the court exists when you have a vessel subject to the united states subject to the jurisdiction of the united states and that includes a vessel without nationality but you still have to offer competent evidence that the vessel is without nationality and there was no evidence offered here of that so there was no subject matter jurist there was no basis for the court the confrontation clause applause to that question absolutely all of the cases on which the comp the competition clause and six amendment do not talk about a trial right to talk about a criminal case and the cases where the confrontation clause has not been applied involve matters that are not dispositive to the outcome of a criminal case so for example whether certain evidence should be suppressed or not admitted whether certain evidence should be deemed to fall within the hearsay exception none of that is dispositive but a factual determination that is dispositive to the entry of a judgment of conviction and in this case a twenty five year prison sentence i believe that absolutely the confrontation clause applies and we should be able to ask questions and i think that it's clear from this record that just a small number of questions could have opened up a lot of issues that might have suggested that the government even if it had tried to prove put tried to offer good morning may please the court i'm amanda waller an assistant united states attorney in the southern district of new york i represent the united states on appeal and i represented the united states before the district court you think statelessness is a question of an element of the offen e goes to subject matter jurisdiction no your honor but congress has determined that the question over jurisdiction over the vessel is not an element of the offense but it's within congress's or excuse me it would subject matter jurisdiction it no your honor just because a determination is not an element of the offense does not automatically rounder it an issue of subject matter jurisdiction this court in use if made clear that the inquiry about subject matter jurisdiction is has has correctly articulated that there were essentially two facts that the district court was looking to find first that there was a claim of registry and then what the response from the foreign nation was here the  district court relied on to up to factual foundations for the claim of registry first the government's proffer that a witness would testify at trial that saint vincent in the granite the ins was the nation where the votes the vessel  registered but second in the record your honor at a ninety six there's a report from the coast guard word expressly says that the master of the vessel invoked same benson on the ground indians as the registered nation for the vessel and then as to the question as to what the response of the foreign nation was that's proved conclusively by the certificate and that's determined by the statute so there was in fact competent evidence your honor below council says it when he pled guilty the confrontation clause is plainly a trial right and the supreme court held in class that that is waived by a guilty plea but even if this court were to address the merits of the confrontation clause claim it should be denied because the here the defendant is the competition clause has not been applied to pretrial determinations which is what was decided here co you your honor i'd like to start then by addressing judge newman's point as to whether or not due process requires a nexus here at every circuit you have addressed this question has found that in the case of stateless vessels due process does not require a nexus and indeed this court held that and henriques defense has referenced yousif and sar but that's not the relevant precedent here he has started with the first principle that when addressing extraterritorial conduct congress must act within the confines of due process and yet he has still decided that a nexus is not required for stateless vessels enriquez specifically rejected  due process claim relying on the precedent in the eleventh circuit there's nothing fundamentally unfair or arbitrary about prosecuting stateless vessels on the high seas and that makes sense in line with this cour reasoning in abscam that when you engage in conduct that is self evidently criminal there is no due process concern about notice to you because you are engaging in conduct that you understand to be criminal and indeed the defendant here conceded that his guilty plea that he understood that his conduct was wrong and unlawful can we go back a second to my question about subject matter jurisdiction yes or are you said that the statelessness does not go to subject matter jurisdiction could you explain that to me i'm having a hard time understanding that yes your honor and if i could turn to this court's decision in greer what it where it specifically addressed that inquiry under the statute as to whether the vessel is subject to the jurisdiction of the united states and this court held that that question is not one that relates to individual defendants but is intended to be a courtesy extended to foreign nations the language in greer is that it's a courtesy extended to foreign nations and not one to drug smugglers here the question about whether or not the vessel is subject to the jurisdiction of the united states is a question of international relations it doesn't relate deciding whether a statute has extraterritorial if yes your honor in use if this court held that under the supreme court's precedent in marson the question of the extraterritorial reach of a statute is not a question of subject matter jurisdiction it's not an element of the offense either it's not your honor what is it it's a question that congress has decided should be made at a pretrial phase by the district court and there's no reason that that question should be submitted to the jury because again under this court's reasoning in greer that inquiry relates to the rights of foreign governments not the rights of individual defendants so if the judge has decided pretrial it's sort of looks and feels like subject matter jurisdiction doesn't it there are lots of questions that judges address pretrial that don't relate to subject matter jurisdiction such as suppression of evidence feels to me like subject  to be subject matter jurisdiction it would have to relate to whether or not the court has authority to even hear the case over that offense but here it doesn't because the as this court held in use if the question about whether or not the court has authority is simply whether a federal offense has been alleged here or there a federal offense as plainly been alleged that's a separate question from whether or not the united states has jurisdiction to prosecute that conduct a federal offense is bound up with the concept of statelessness so it's no federal offense to the government can claim and prove statelessness and this court and use of expressly held that questions that relate to the underlying facts of whether or not the government has proved that as alleged still do not relate to subject matter jurisdiction so there may be a claim that the united states doesn't in fact have jurisdiction over the vessel but that doesn't jibe asked the court of jurisdiction over this case i just know your honor as well that defense counsel indicated that that there was no opportunity here to contest whether or not the united states had jurisdiction over the vessel and that's simply not true there was an opportunity they made a motion in advance of trial in the court decides to determine that motion in accordance with the statute in advance of trial and i'd note as well your honor that the defense has the defendant never contested the underlying facts from the certification as it's relevant to the question here the certification only proves conclusively the response of the foreign nation everything that the defense has highlighted in terms of a factual dispute relates to whether or not the vessel was registered but that's not the relevant inquiry under the statute the question under the statute is what was the response of the foreign nation that's what's proved conclusively by the certification and that makes sense because it's a question that relates to international diplomatic relations between the united states and foreign nations unless the court has any other questions of the government otherwise rests on its admission thank you we have two minutes for about  certificate according to the statute there's no evidence of that claim being made and this will point to page ninety six of the appendix which is coast guard paperwork i want to point out precisely why we should have a hearing and confrontation pa seventy four of the appendix is the exact same paperwork the coast guard check boxes the say that mr vander and was not interrogated and did not provide statements after the arrest and the middle of his plea allocution we found out that he was interrogated and that he provided statements after his arrest these are critical issues in a criminal case and we found out because judge sullivan asked the government some questions and if we could ask questions about other things in this paperwork i have no confidence that it will pan out that things are entirely accurate as written down here that's why this is not competent evidence if the issue is is not real subject matter jurisdiction why doesn't his guilty plea answer the argument you just made because the government's contention is that state s also does away with the next requirement the supreme court and mena and blackledge and most recently in class have said that that is not waive all mr vander and made clear at the plea that he was not waiving it that he would bring that up on appeal there is no evidence in the that's if if there is a nexus requirement or well that's true your honor but even if there is not if you join the circuits that have said there's not then we don't need to take on that question even in that case your honor there's no evidence showing state s which would which is what the government would need to do and so the government and why if that's not an element of the offense why does why does the government need to take them because the requirement i understand your honor what i meant to say was if you if the way the government overcomes that hurdle is by saying statelessness there's an exception then they still need to demonstrate through competent evidence statelessness they didn't do that here i understand that it's hard to prove a negative but if you apply the framework provided for that proof and seven zero five zero two they didn't meet that put them to their per is approved by saying i'm standing trial and i think you have to prove he didn't do that he said i'm guilty well the government's position is not an element of the offense he said that i did have the cocaine he never admitted to anything that would establish statelessness for an excess and he said i won't get a hearing here i'm going to raise the lack of proof on appeal he asked the government to present the proof he asked for a hearing to test the proof he was denied that and he said i'm pleading guilty subject to my ability to contest this and the supreme court has said and class most recently that that's absolutely not waived by entry of a guilty plea and i believe under archer this court's precedent says the government should not have an opportunity on remand to present evidence when the burden was clear before the burden here was clear and so we respectfully  request that the case be remanded with instructions to dismiss the indictment because there is no evidence proving either a nexus or statelessness thank you thank you both who reserved decision