colombia to australia that involved neither americans nor touched american interests either the statute the maritime drug law enforcement act nor the constitution permits this exercise of additional authority are you familiar with or elemental and but it isn't disputed that mr sanchez was not on board the vessel indeed he never left colombia i submit to the court the statutes language is best understood as imposing a limit as does the defin punish clause in this case based on the location of the defendant now either as i understand prado the statutory language on board is jurisdictional as the  concurrence suggested in prado as your honor is well aware or it is elemental i submit in either case in either case that requirement for prosecuting this or sanchez was not met here i also note crimes on the high seas are of course particularly regulated by the constitution which repeats the locational language it requires or it permits congress to define and punish down committed on the high seas i submit that whether it is understood analytically as jurisdictional or elemental there are very good reasons for such limitations in forcible in a court of law and not left nearly to the executive in the exercise of comedy in international affairs i grant as part of that there is a significant element for the exam in this nonetheless it has always been a lot of the circuit and indeed the supreme court that the courts also have a role in limiting the contours of extraterritorial jurisdiction so all the executive has a role to play with government's position that would extend the reach of the maritime drug law enforcement act through the invocation of conspiracy and the pinkerton doctrine is a backdoor to unlimited war on as the cases discussed it universal jurisdiction that would violate the defined and punish clause analytic error that and as i note conspiracy is used in that way it is a back door to universal jurisdiction which has long been limited only to a very very select set of crimes it has never been the law that the narcotics laws may be enforced anywhere at any time upon any party but i'm trying to understand why that should be our ruling t and there is that introductory paragraph probation while me i want to graduate vassal i'm an individual may not knowingly or intentionally write a controlled substance on board right that's the language to which i point  it tells us that you may not knowingly or intentionally manufacture distributor possess a controlled substance on board that the statute gives the government ample authority to prosecute all those people found on board the vessel whether they are have direct liability or accomplice liability and that's the role of the accomplice section in the statute on using gauged in selling drugs here in new york in the on us soil the person who sold them the drugs in another location with that intent with the collusive intent to be sold in new york is subject to u s jurisdiction on the hypothetical that was traded that in the main run of in the minor on of cases there is jurisdiction and it is probably that this case presents a very narrow and particular question of whether a foreign national who never left be prosecuted for a crime that has no connection to the united states on that was a drug deal or a drug transaction going from colombia to australia so my briefings really dedicated to the broader constitutional issue because in the product case although that was basically as a as and as applied analysis the prado case recognizes that there is against piracy and human trafficking also under the night and under the international criminal court issues of genocide and crimes against humanity can also be a charge of centrally by anyone any and any nation that you can see that this was crimes and for interest in actions against other foreigners and other foreign governments on the high seas in a state where ever the individuals on the boat are not stateless and the problem is those persons are being charged in the in the united states for violation of american laws so the issues that are argument basically destroys the concept of universal jurisdiction over state crimes committed the argument that we made is that although the actual the boat itself is stateless does not belong to a particular country is not claimed by a particular country and the persons on board are not verifiably foreign nationals they are the issue the fact that these persons who are foreign foreigners committing crimes on international waters are being charged in the united states so if you look at some of the cases of this of the supreme court they analyze whether or not laws of congress are essentially exceed the authority given to them by the constitution boat and those who are on land or do you treat them each i treat them each the same the same so it doesn't make a difference to you if they're on the boat with the drug and with the drug crime is taking place as long as there are foreign nationals engaged in crimes against foreigners and or foreign nations i'm not really the issue missing something here but the logical conclusion of your argument that the united states can only define piracy as committed by  your i thought i understood you to be making a constitutional argument that there was no constitutional authority to legislate this far under the terms of the statute anyone onboard a covered vessel is prohibited from engaging in in the prescribe conduct and that's the issue but i think one thing congress you just told us that you're not trying a distinction between people on land and people on the on the ship i'm just trying to understand a it's not an international drug trafficking is not an offense against the law of nations on the high seas as defined by the in the congress can can prosecute persons involved in piracy human trafficking on the high seas as can anyone else any other nation the argument is that congress cannot prosecute those involved in international drug trafficking on the high seas in stateless ve thank you to have reserved no time for a bottle thank you here from the government good morning your honour's and may it please the court my name is jason swirled and i'm insisting united states attorney in the southern district of new york i represent the government on appeal and i represented the government before the district court i want to start by just addressing a couple of the issues that were raised in sanchez's counsel st of all just to correct a factual issue this is not a case that did not involve any americans there was actually an american citizen coconspirator in new york making a payment to a confidential informant in furtherance of the conspiracy that's an undisputed fact in this case and i think it's important that the purchase passports that was to purchase the passports from an individual who is also arranging for the ship one of the ultimate ships that they would use that they would use in response to the court's questions about why the conspiracy provision does not also apply extraterritoriality if the substantive offense under seven three applies extraterritoriality i heard mr al consensus his counsel to argue that the language of the statute limits it to individuals on board vessel subject to the jurisdiction of the united states first i think that you have to read seventy thousand five hundred and three which is the substantive offense and seventy thousand five hundred and six the conspiracy provision together and when you read those provisions together it's clear that congress is intent was that both provisions would apply extraterritorial even though seventy thousand five hundred and six doesn't contain the extraterritorial language to do so would have been to include that language would have just been redundant it wouldn't have served really any purpose for conspiracy to only apply to the individuals on the boat with themselves or also in almost all circumstances guilty of the substantive offense i would also note that there are other statutes where the conspiracy provision no there is no extra torah to extraterritorial language in the conspiracy provision there is no limitation to being on board the plane in the conspiracy provision but in the united states versus eps camp this court upheld united states jurisdiction over such conduct for foreign nationals operating wholly in a foreign country organizing a shipment of drugs from one foreign country to the other with no connection to the united states other than the the plane they were using was registered in the united states which is similar to a vessel subject to the jurisdiction of the united states we think also i want to just point out that united states versus lee which is the piracy case from the d c circuit which coterminous whether accomplice liability and conspiracy liability are also extraterritorial if the substantive offenses mr weinstein argue that ali stand for the proposition that there are limits but there's a was piracy is certainly extraterritorial we have to decide though whether under three hundred and seventy one dollars we can apply conspiracy extraterritoriality and we have to to the definition of piracy as it exists in international law and under the uniform of the united nations convention on the law of the sea piracy was defined to not include conspiracy and so therefore the court said well under three hundred and seventy one then which is a general conspiracy provision we cannot extend it to piracy that's not the case here offense is a valid grant of constitutional is a valid grant under congress's constitutional authority to define and punish felonies on the high seas it makes perfect sense under both congress's authority to criminalize conspiracies a there is case law in i believe the th circuit which talk where there was a question of whether or not there are different is a different analysis for individuals who are on land versus individuals who are on or sorry individuals who are the is the conspiracy provision and at least under the version of the statute that's excerpted in in the statue tory framework it may have changed since since the briefing but the conceit it's the conspiracy provision that says that a person attempting or conspiring to violate seventy thousand five hundred and three is subject to the same penalties that's the same way that it's written in for example nine hundred and three dollars saying that a person who conspires to violate a subsection of title twenty one subject to the same penalties that is how congress chose to punish conspiracies for individuals who violate the n d l e a your argument that therefore it's clear that congress intended for seven conspiracy stab us jurisdiction yes it is your honor that is for two reasons one if you just read the two provisions together which is one that says that a violation of the m d l e a for the individuals on the boat is to apply conspiracy applies to the individuals on the boat because there prosecutions that have been upheld and in all courts time and again that the individuals on the boat conspired to distribute the drugs while on board a vessel so clearly there have to be extra territorial application of the conspiracy provision in order to prosecute somebody for conspiracy on the high seas it follows by extension that it can also apply to people who do not get on the boat both by reading the statute together and looking at congress intent through the legislative history and what i would point to here are two things st i would note that in the senate report this is cited in our brief congress was talking about in the cont a predecessor statute the fact that there was a loophole that was created by the difficulty in obtaining evidence about whether or not the drugs were destined for the united states and in the senate report the court noted the need for a law to prosecute quote the crew or others involved in the smuggling operation and then the senate report also noted that under the current version of the law there was a lack of deterrence on the crews or the trafficking organizations that language makes clear that congress saw that there were two distinct classes of individuals that they were looking to capture their conduct in this statute but the people didn't make it into the statute right it didn't make it into the statute but that's because it's clear that for  conspiracy the actions of coconspirators is attributable to others if it's reasonably foreseeable here these defendants coordinated a shipment knowing that it was going to be going on a boat on to the high seas they had it was headed toward australia was that that's correct but it was getting there by boat that's the point what is the nexus with the united the nexus with the united states your honor is there are several st i would just point out that because it was a stateless vessel there should not be there should not be  finishes thank you on the nexus in the united states here there are several st if you just look at congress's findings in seventy thousand five hundred and one which talks about the in the global instability that affects the united states from large scale drug trafficking on the high seas disrupting large scale shipments is one way to reduce the impact of those organizations here in the united states here however there's even more of a specific nexus and that is as i mentioned at the outset that there was a co spirator who was a u s citizen who was in the united states who was taking steps in furtherance of the conspiracy in the united states both paying the confidential informant and having phone calls with other coconspirators back in colombia regarding what needed to there where everything took place outside of the united states the court noted that there was a nexus because the one of the undercover officer agents had flown to miami to look into picking up an airplane that they could use and the court said that was that would have been enough for an excess so certainly we have it here may i ask one question i just want you to deal with our decision last year and hoskins you cite it with  noting with approval the rule of other circuits that a conspiracy statute applies extraterritorial e where the underlying substantive crime do but in fact hoskin said that the presumption against extraterritorial ality bars the government from using conspiracy in complicity statute or the foreign corrupt practices act because of the statute territorial limitations now if i understand your adversaries argument they want us to construe that opening line of the m t l e a about parsons on the vessel  being a territorial limitation on the statute and so my question is why why doesn't hoskins at least give pause as to whether we can apply it to anyone other than a person on board a covered vessel your honor i don't think that the language regarding on board is a territorial limiting understand that how does how do you distinguish hoskins which because it only applied to agents and  certain persons involved with the united states securities we held couldn't be couldn't be extended to persons who conspired with them because here your honor i think congress's intent which is borne out from the reason why they passed the statute even if hoskins gives pause the fact that the congress clearly intended to reach individuals who were committing conduct on the high seas were ever they are is enough to overcome the pause that hoskins would create because the practical limitation here the practical effect your honor is that if congress meant congress clearly saw drug trafficking on the high seas as a critical problem and sought to punish those individuals involved but doing so in the way that the defendants suggest in reading that is a territorial limitation on through the m d l e eight people on the boat with inoculate from liability the more called the most culpable people who are involved in these drug transactions the people who coordinate the shipments who stand to profit from it and would only then allow congress to prosecute what essentially turns out to be impoverished fishermen to get on the boat  with respect to a covered vessel well that why would have emphasized the on board aspect your honor for the same reason so in the version of the statute that was in place at the time the language is actually a little bit different that no person may knowingly manufacture distribute possess on board a vessel subject to the jurisdiction of the united states that is virtually identical to the way in which congress passed the law with respect to nine  plane that is a u s registered plane that limitation is still not it's not a limitation on whether the person has to actually be on the boat it's just describing that the conduct that's taking place part of the conspiracy c ial conduct has to be on a boat otherwise there has to intend that that's what's going to happen otherwise that's what we get at the sort of back door consider the back door universal jurisdiction over drug trafficking that mr weinstein was talking about congress is not seeking to go into foreign countries and prosecute people for drug trafficking in all circumstances it's only when they meet very specific tests here where they use or intend to use vessel subject to the jurisdiction of the united states in nine  correct yes your honor there were photographs and there was a video taken while the coast guard members were out conducting the interview action but they were all the photographs in the video were not your honor and if there's another i can follow up on that or if there's another question i'm well i am curious your brief but it's an argument now i don't think that i know i'm curious as to what the record shows as to why all the photographic evidence was not provided  not set forth the particular types of information that need to be provided to a foreign country here through the valid exchange of forms between the united states coast guard and ecuadorian authorities the coast guard and judge bar judge guard out and its pages eighty eight and eighty nine of the appendix the coast guard provided a wealth of information to ecuadorian authorities to determine to allow ecuador to determine whether or not the vessels master's claim of for the request for photos came during the exchange of forms so the st the st form goes out from the united states with all of the information the raw stock response comes back and says we will answer within thirty minutes the next form then a khan we need photographs there are no photographs that are sent at the time and ecuador respond that they cannot affirmatively confirm or deny which is all that is required under the m d a and to the extent to the extent that what the defendants are arguing is that the government is that the coast guard actually violated a bilateral treaty between the united states and ecuador concerning the exchange of forms that is not an argument that is available to them under the m d l e s plain language and the general well established principle that individual defendants cannot step into the shoes of another country to assert violations of international law and international treaties the point i would make here your honor and i think this flow it's right but the point but the point is is that it's ecuador's decision whether to comply whether to respond to the forms when they made when they responded with the final form because the status are the social so whether futile for they had to go had the coast guard provided it there was no additional information that would have been in a photograph picture right that there's no but the picture there's no additional information that would have been captured in that photograph that was not already provided to ecuador in the exchange of information again that set forth in the record in judge garnett these findings the n p l e a requires that when there is a claim of registry the coast guard has to follow up with that country the country then makes a decision whether to respond ecuador saying we need more information otherwise we can affirm or deny that it's our vessel is not an affirmative and unequivocal assertion do you not suggested it at a minimum you have to evacuate that and say ecuador's comes back and says darned if we know that would not be enough to eb acted in good faith here would it that your honor that hypothetical does not seem like good faith but that is not what happened  understand that but in trying to piece together what your obligations were do you least have to make a good faith thing worry of the of the far end and now your argument is that given everything else you gave them knocking them pictures was not a a demonstration of bad faith your honor i can't i can't say whether there is an whether there is a limitation  over what is required in the statute all i can say is that with respect to this case which is before the court the court need not reach the question of whether or not there is some additional good faith requirement because here the coast guard provided ample information that allowed ecuador to make a determination and if ecuador did not believe it had sufficient information it could have refused to comply and it could have asserted that through diplomatic channels both at the  permission it just asked whether there were photographs because there were other vessels named the elva khan but the confirmation that was already provided showed everything that would have been in the photographs what the the color of the vessel what was on them what was on the whole what the homeport was the length of it the names of the people on it where they were from what their registration numbers were were all of the information that would have been on the boat and this is not a case for example in prado there was concern that while there were red there were potentially registration numbers that were not that were not provided to colombia and the boat was sunk here there was no claim there were registration numbers and in fact there were none  that's not for us to question i think i think we also set forth that position in the brief two and we raised and we raised that argument in the district court which is again yes ecuador asked for photographs the coast guard was not able to provide photographs but they provided all of the information all of the other information that they had and all of the information that would have why do you think i was not able was not able to  chance you're previously they didn't provide all the photographs now they did not they did not provide the photographs and the they have not provided the photograph and the video that was taken in real time while they were on while they were on the vessel that is correct but the information that would have been captured and that was provided through the exchange of forms that satisfy the end for purposes of proving that this vess vessel a board which the master makes a claim of registry and for which the claims nation does not affirmatively and unequivocal assert that the vessel is of its nationality it seems to be a definition that but how do you deal with the statutory definition if i understand your honest question this is a different case from follow because indeed in this case the government authorities did ask and there was an affirmative and so there was back and forth on that question with respect to the language of what has to come back again we're dealing with the statutory definition we're not dealing with what you know we we might like to see here the that an inquiry having been made in the response being that they were looking for rather specific additional information which it seems from the record the government possessed that on these facts it would be appropriate  y that the record would be considerably weaker for me on this point i'm trying to understand where we're going here with your argument if the ecuadorian response it been we can't tell registered in our state for i will say on the facts of this case where there was readily available information of the type sought that being photographic evidence for the authorities to simply ignore that and go ahead and clearly state was what it made a difference i mean they didn't ask they couldn't put forward the proof this is a failure of proof it seems to me that although my record is weaker it is still a record on which i can submit to the court that while there was more evidence  fact it would have turned out that the vessel was obviously registered in ecuador how would you address the government's argument that even if this was an error it's an argument that only ecuador can race thank you thank you while i appreciate the point that the government makes and there are aspects of this argument about international comedy that the defendant may not raise and that is a well established principle again i'm going to rely upon prado the proposition case does represent a significant extension of the use of the maritime drug law enforcement act the government makes it seem as if using conspiracy to stand its reach is a rather ordinary matter i submit to the court that at least in