mr derrick jackson a member of the alleged conspiracy drove approximately fourteen hundred miles from miami to john f kennedy airport here in new york the other fact was that the a brought mr jackson after he was arrested into manhattan in order to place phone calls to other members of the alleged conspiracy still in florida based on those two facts they said that venue was proper here in the southern district of new york and i think that the lower court's holding was erroneous for a couple of reasons there were there was a little bit more than that i think it was the notion that don't you get a better price for narcotics in new york and that was the some some indications that jackson had did have some earlier contacts in new york your honor that was the argument that it was reasonably foreseeable that mr jackson would come to new york and the government argues here today that it is reasonably foreseeable  that mr jackson would come to sell in new york because of the greater price and judge i refer this i refer to this argument as the overly generous drug dealer argument and this is why if it were reasonably foreseeable that mr jackson would come to new york to sell at a greater price and the evidence the trial was the greater price was between forty and forty five thousand dollars per kilo of cocaine if that were the case if that were reasonably foreseeable then mr perla and mr jackson allegedly according to their one witness would not have sold to them at such a low price the price that he sold to them put into their one witness was twenty six thousand dollars per kilo that would allow mr jackson to profit approximately four hundred seventy five thousand dollars for his trip to new york if it were reasonably foreseeable that that would have been mr jackson's profit margin he they would have never sold to him at such a low price the overly generous drug dealer theory looking at let me ask client some superior as i understand it the only evidence of the market price differential came from the special agent who testified at trial is there any indication in the record that there was any information or any knowledge or any communication which conveyed that particular information to mr perea or anything that indicates that mr perea otherwise would have had information regarding the market profit price in his possession otherwise none none whatsoever there was there was in fact no communication between mr jackson and mr perea this mr thomas and i believe mr tang yuck with the go betweens mr period was never i don't i don't believe there had even ever met so and there was a knowledge attributed to mr period that did me the market price in new york was significantly higher mr korea and the entirety of this alleged conspiracy took place between st croix and miami florida every single both i guess made from manhattan after he made his sale in queens were enough to make venue in the southern district constitutionally correct  which was a first circuit case and the andrews first as united states which was the seventh circuits case making romney the seminal case here in the second circuit in each of those four cases that the romney remembers amalia the arrow in the andrews case each one of those cases the intendant the object of the conspiracy was to sell drugs in that venue each one of those cases said it was phone calls plus driving through the air space plus that was  my case where he drove the the agent flew a plane through the airspace of the southern different new york but he landed in westchester he landed in the southern district of new york romney was the dutch drug dealer who spoke to a dea agent by phone he his intent his objective was to sell drugs in new york core darrow was the drug dealer who spoke to the dea agent in puerto rico by phone his objective was to sell drugs in puerto rico let me ask you in terms of your view of the standard and you're implying a view of the standard right now so constitutionally we know that a defendant must be tried in a district where the crime was committed and or in a conspiracy context where it was foreseeable that an act would occur the question in a conspiracy context and here is the standard issue that i want you to focus on is whether or not the foreseeability must relate in terms of evidence preponderance of evidence to each and every defendant in other words for a venue for a venue determination in a conspiracy case must the jury have sufficient evidence as to foreseeability as to each defendant or is it sufficient that venue be appropriate as to one  that say that we attribute new tribute reasonable forsee ability to one and apply it to all you would need to find that it was foreseeable to perea himself yes and each and every member of the conspiracy and if one of them happened to have an overt use some of it now you want to answer the question i think we have we have distinguishing facts here as opposed to were mere is a minor and romney it was never the objective of the conspiracy to come to new york and it is undisputed in this case that nobody knew mr jackson was coming to new york and the other half of my question with regards to the price was i don't think mr jackson even knew were disappointed that he was coming to new york because why else would he sell to two  kilograms of cocaine according to their one witness to mr tang yuk for a profit of two thousand dollars when if he knew you were coming to new york he would profit by thirty eight thousand dollars according to their their witness it was never into spaded and i don't believe good morning your honor smith please the court my name is christopher can if i represent the appellant kirk tan you know and also represented him at the trial below and before judge nathan the place i'd like to start is is is kind of a summary of the way the trial unfold there because i think it's critical to this issue of venue you judge carney you're correct that the issue of the arizona bridge was very much front and center when the trial began in fact the jury charge initially focused on that aspect of venue in fact during the trial the government put on evidence of g p s tracking and the like including a map that showed m jackson going over the verizon a bridge the fact of the matter is that wasn't contested the issue at trial what what evidence is is there that that was forseeable to the defendants none your honor and that's really the other than the notion that you can get more money in new york that that's the key you're on it there was no evidence and in fact that your client no mr jackson and no use from the tri state area had contacts up here in a daughter's school in new jersey would ever i respectfully submit to your honor that that argument by the government is an exaggeration of what the actual record was of course the cooperator in the course of his testimony testified about his background including some of the information in there which is cited to the appendix but in fact as my colleague pointed out this was a conspiracy that involved the import of cocaine from st croix to miami florida my client as laid out in the brief is really a local drug dealer connected to this had he been to new york you never been to new york he never disputed during the course of the the trial that he received sold two kilograms of cocaine literally within blocks of receiving in miami florida moreover when you look at the consensual recordings he is he is on one of the phone calls he's called and jackson says i'm in new york i'd like to address that you're on a book but one question i had was is it enough to say i'm in new york because new york could include the other district well your honor that i think is central to to romney and that was a large discussion during the jury charge because it's not enough romy says very clearly a chance call by somebody from new york is not sufficient to establish venue and what was critical in rummy and which we argued to to judge nathan at the charge was that romney injected himself into the venue there's there's obviously no requirements and the drugs into new york and it was it was in one of his initial calls with the cooperative that the cooperated mention he was in the shadow of the world trade center and made very clear to romy i human men hatten drug dealers and romy took took up with that and continue making calls here when you look at the series of consensual recordings that were done in fact and it's noted in our brief the cooperative jackson actually tells my client when he asks him where are you it's none of your business where i am and in fact it was until the last call which i respectfully submit to your honor as the october fourth call your honor's was made with the sole purpose of having that cooperator announced to the to the other defendants there are several issues related to that but one question simply is is it enough for jackson to say i'm in new york to implicate the southern district of new york as opposed to the eastern district that that's one issue another issue was is that the agents told them to say new york and so if there's a case for a contrived venue i suppose this is the case where the issue is raised but then another issue then is is are there events within the district the southern district after the defendants are we're jackson is in new york or my client's perspective your honor there are not so there but there are conversations thomas as i understand it after your client has spoken to mr jackson on october fourth there are then subsequent conversations between thomas and mr jackson is there an inference which should be drawn in favor of the government but that the information then that was being conveyed to thomas was something that was being similarly conveyed to your client there was no evidence to that regard at the  trial i think it's very fair judge and i think you're hitting the nail on the head this is a case where the government caught somebody in court i see my time is up if i can just finish my thought this is a case where the government had a successful seizure in queens new york they seized twenty five kilograms of cocaine because an informant told them that jackson was coming they then went up on a wire and they manufactured a case that had nothing to do with this district except the fact that jackson unilaterally and i think it's clear from the record unilaterally chose to come to new york to sell his portion of the drugs and as i mentioned in my brief my client had no knowledge in fact was kept out of the  good morning make these a court behalf of gary thomas as my other counsel have argued the main focus of mr thomas argument is also the issue concerning venue and if i may start off with answering just a couple of questions that your honour's have already posed as it pertains to my client specifically with regards to the phone call and i think the question was posed whether that phone call was  which one i think thomas there's the october fourth and october twelfth so there's subsequent phone calls as well so the first phone called october fourth phone call which was made at the direction of the government that phone call in and of itself is not sufficient to establish foreseeability or venue for two reasons one is that romney was clear to the extent that i agree with the holding of romney romney was clear that the call in in furtherance of the conspiracy thomas want to give is that being sent to someone he knows is in the southern district of new york is the tax in and of itself is in further e of the conspiracy but not for purposes of venue because it was never established that mr thomas knew that there jackson was in new york in my brief i argue that when you look at the call itself as a call to mr thomas you can see it ended before it ended in new york exactly was not argued to the jury that was not argued to the jury specifically but it came out during trial it actually came out through the questions of the government's attorney when the government's attorney was questioning derek jackson about the call he even said i realize that this call ended abruptly and then there was a subsequent call within a few minutes and during that subsequent call subsequent call there is no discussion of new york isn't that that particular point about whether or not the word new york is in or out of that october fourth call something where the facts have to be strongly drawn in the government's favor on this kind of motion so don't we have to assume effectively on this appeal that new york is in in so far as the october fourth call is concerned and then go on if we don't think that october for is sufficient for venue is there anything else that follows october for i don't believe there is anything else that follows october fourth that's sufficient for venue and i say that because even when derek jackson placed the call to mr thomas and he placed a call to mr tanya he didn't say i'm in new york selling the cocaine he simply inform them that he was in new york he didn't explain why he was in new york he didn't explain that he was in new york to do when the jury have inferred that he was in new york to sell the twenty three kilos i don't think i don't think that the jury could have inferred that without there being further evidence but that additional evidence would not come into play for venue because the government seeks this stablish venue based on those calls and those communications with the october twelfth call as i understand it thomas calls  mr jackson and says you better get down here things are going to get ugly soon which is effectively collection a collection process on behalf of the conspiracy so it's in furtherance of the conspiracy and we know from case law doesn't matter what the directionality of the call is to from so if it's going into the state of new york then that call is certainly directed there in furtherance of does that mean that for thomas there is now a second touch with new york october for an october twelfth no because even if we were to draw the fact that or or  look at the facts regarding october fourth call in the government's favor to establish that somehow thomas knew that jackson was in new york thomas did not know whether jackson continued to be in new york after that october fourth date so he had no idea as to how long jackson was in new york and in any event he didn't know that he was in the southern district he did not know he was in the southern district is there anything in the record that you're aware of that indicates that there was any contact between any of the defendants that indicated it was southern district there's nothing in the record to indicate from jackson going to the to the defendants to indicate that he was specifically in the southern district of new york and with regards to foreseeability i have any case law on whether new york is sufficient to cover the southern district of new york none that i could find now with regards to the trial court's finding regarding forsee ability my response on behalf of mr thomas is the same as that of mr and mr perella which is that there nothing in the record to indicate that mr thomas had any knowledge of derrick jackson's history with new york such that it would make the factors that the court relied on foreseeable  evidence that jackson had sold drugs or that they knew that jackson had sold drugs previously in new york none and there is also no evidence that mr thomas himself the knew that the price of cocaine in new york was higher than the price of cocaine  one jury draw that inference that he must have known if he was in the drug trade well there was no outside of this one case and this one act where it's  assisted with packing a crate there was no evidence to show that there was any other history with regards to drugs or that mr thomas was particularly sophisticated or knowledgeable about the drug trade such that inference could be made thank you you r question is you know that the phone calls said i'm in new york is that enough to establish a presence in the southern district of new york it is judge chen and it's important to bear in mind that here this standard is not actual knowledge it's only reasonable foreseeability with the evidence presented in the light most favorable excuse me favorable to the government on appeal and it was reasonably putting aside that these defendants and others here is or a case that says saying that you know that someone is in new york is sufficient to give someone notice that that person is in the southern district of new york i think we you know we issued a decision on venue about a month ago when there was an issue about a seven one eight number and the government didn't rely on the seven one eight number because someone eight could include the bronx and so there was important whether it was new york or manhattan brooklyn but what the courts prior precedence in cases like davis show is that it's not necessary for the government approved the defendant's actual knowledge that that person was in the southern district of new york and by way of example this court has concluded i understand that forsee abilit is it enough to say is a foreseeable that someone will go into the southern district of new york if the person says i'm in new york yes it is i think new york is the most really the most reasonable interpretation of that is being in manhattan  and it was evidence in the record that cocaine it's ok for a jury to conclude from that that he would be in manhattan when he said i'm in new york it is reasonable for the jury to conclude that and i was also where the cocaine prices were the highest anywhere in the country and it's good for that for the cocaine price if your argument is that the cocaine price being the highest in new york in the country therefore with the big drug deal it's foreseeable that a dealer is likely to go to new york doesn't that mean that venue is always appropriate in new york for a big drug deal no matter where in the country the drug the drug man the drugs may enter we're not arguing that judge forrest and i think it's important to bear in mind what the context is here for this drug deal jackson took the twenty five kilos of cocaine on consignment from korea meaning that he didn't pay for them outright when he got them he owed perea hundreds of thousands of dollars in proceeds that he was going to use to pay p through his drug sales gary thomas was on the hook for jackson's so he had to pay perea and the event that thomas did not pay up and why that's important is all of these defendants had a vested interest in finding out where jackson was the purpose of this conspiracy at this point was to get paid and to get repaid through jackson and so wouldn't you think then that if they all had a an interest in finding jackson which is true that number one they would have no w y was or two they would have they would have been something that indicated that they knew where to look instead there is direct testimony from jackson that he didn't tell anybody where he was going and he didn't tell anybody who's going to be selling drugs in new york and coconspirators are saying where is jackson so you would think that that if all of your rationale is correct that they would have thought he's probably in new york well i think first of all it was foreseeable to them certainly that  someone in a jackson stature who was a drug dealer dealing in multi kilo gram loads of cocaine when he said he'd be on the road it was certainly foreseeable to them that he would end up in new york but there's also another point in the defendant's slice these calls in the light most favorable to themselves jackson pointedly told both tang and thomas in recorded calls that he was in new york during those specific calls both thomas entangle use those calls and further into the conspiracy just as was done in the romney case tang yok said do your thing then take your time gary thomas reiterated the fact that he had been paid by perea so he used the call to explain the current status of the conspiracy from his perspective even after that took place immediately after tang's was told specifically that thomas was in new york there is a call  perhaps within the southern district of new york in furtherance of the conspiracy there are several things first there during the words do your thing yes because that call is is a direction from immediately after that call with tang you hang up calls perea and the court is certainly in the jury certainly could infer from that call that at that point perea has knowledge that jackson is in new york and then there is  text message in which gary thomas says to thomas it's pay up it's about to get ugly and the reason for that was that thomas was on the hook for the cocaine and gary thomas was on the appropriate that certainly in and of itself was an act in furtherance of the conspiracy that was known to all of the coconspirators do you agree that as to each of the coconspirators the activity in new york had to be recently forseeable and no judge carney i think what the precedents and rami itself makes clear that at most the government needs show reasonable foreseeability and the jury instruction in at issue and romney didn't even include a reasonable perceive bill and i think on it here the instruction directed the jury to find that it was reasonably forseeable and asked to each the fenton as to the defendant you are considering yes and we've satisfied that here because that as of the time of jackson's calling the law doesn't require it but you showed forsee ability yes to each defendant infer from that phone call that at that moment perea had knowledge that jackson was in new york in addition there was a text message but it did anything happen at the point that he acquired knowledge did anything happen within the southern district in furtherance of the conspiracy yes because of their because in those phone calls with tatts hanging up and thomas both of those defendants to hang up in thomas used those calls to further the conspiracy but in addition this threat that was communicated shortly thereafter by text message from gary thomas was a threat that thomas needed to pay up i'm scuse me that jackson needed to pay up or or it was about to get ugly judge nathan concluded at sentencing that that was a threat that was communicated by korea through thomas and the jury was free to conclude that in finding venue that that that was a threat that came originally from korea through thomas into the southern district of new york and i think it's also important to bear in mind too that this conspiracy continued for months that there is not there is some question as to whether substantial contacts applies if it does apply what it what are the substantial contacts here between the conspiracy and the southern district of new york as an initial matter this this court has made clear that if the venue is established then the substantial contacts test is satisfied all three defendants that jackson would hit the road with at least based on again on the theory that you can get more money for the drugs and new york and it's not only that isn't he going to pittsburgh or the philadelphia or wherever some where out of florida so you would be arguing that that was foreseeable also so long as the price was higher no not necessarily judge carney i think the reason for that is jackson himself had it first of all had a connection to new don't do it while the jury had the evidence before the jury other defendants know that he had a connection to new york the other defendants and it is the proof established that the other defendants had  a relationship with jackson while there was no specific proof point that he said they knew of his connections to new york no no but it the point here is that this is a preponderance standard it's a foreseeability standard and the jury could credit the inference that they would have known based on their prior contacts with jackson that he had a connection with new york as i understood the record with regard to perugia and in fact all the defendants that the testimony from jackson when i was reading his direct in his cross examination was that he only met these people all of them in two thousand and ten he was in jail until two thousand and nine none of them were involved in the two thousand and three drug deal that involved other situations so he is only known to them as of two thousand and ten and rhea he has a very short interaction with down in san croix at the direction of thomas so where is the jury to speculate that this exchange of information regarding his background occurs and wasn't his daughter in any event as she was in college in new jersey not in new york so that contact is something that just only puts him in the northeast it doesn't put him in the district and the drug dealing was in two thousand and three that's true your honor but there are three independent bases here first of all you have in terms of the foreseeability you have not only the fact of the prior relationship between thomas and tang up with jackson secondly you have the point and this is consistent with this court's precedents and finding for example that when child porn is is advertised in kentucky it could end up anywhere in the country including in new york that if a that when someone trades in a security we're back to the argument that any time there's a substantial narcotics deal it is reasonably foreseeable that some of that will end up in new york in the continent's position in the context of this case because for two reasons first because  was the price was the highest here in new york and secondly because these defendants all knew that jackson was getting the cocaine on consignment and would have to sell a portion of their evidence in the record what is the evidence that the defendant knew that the price was substantially higher korea so his fifty three kilos in four days in florida right that's true and i think the point is that these were sophisticated defendants  that he could get a lot more money in new york well there were he certainly was sophisticated in so far as he used i think that the jury could credit the inference that he had used his own shipping company to ship the cocaine into transported from the virgin new york and that therefore jackson probably is going to go up to new york into the southern district of new york and to try to sell the drugs is certainly is foreseeable kulish it's not speculation it's foreseeable but separately all of the defendants as of conspiracy that romney told bashi one of the ecstasy imported into new york was the object of the conspiracy and they decided miami was the port of entry and they said no problem we can have our people from new york come down there that was the context for the whole undertaking that isn't the case here well judge carney i think that the point is is that what romney first of all jackson's crossing the verizon a bridge with the cocaine was an act in furtherance of the conspiracy that was before he was arrested but separately and apart from that  we're still talking about foreseeability to the other coconspirators but there's also the actual knowledge component of romney romney says first of all irrespective of whether the call was exchanged with a government informant or an undercover agent irrespective of the direction of the call so long as the call is used in furtherance of the conspiracy that alone is sufficient to establish a venue that was done at least three times by these coconspirators but i think your adversary would point out that the court found that sufficient in the context of the conspiracy that was oriented around contacting drug sales in new york and and therefore when you look at the holding is although the language may have been somewhat water it it's less of a stretch then we are confronting here isn't it as judge nathan concluded in denying the defendants rule twenty nine motions in a very thorough opinion what the of romney don't don't state that that is that that those facts are required in order to establish venue that they were simply specific is sufficient under the facts of that particular case but under the the operative language the rule of law articulated in ronnie clearly there were at least three calls exchanged in which the defendants are furthering the conspiracy when they have an actual knowledge that jackson is in new york they are using the phones with the southern new york if we are that agree with the government's position on foreseeability ass to the verizon bridge then all you have are the phone calls and those calls in the mention of new york are done specifically at the behest of the agents so it does look like this is a manufactured venue case it is not judged and the reason for that is it was jackson's own conduct in furtherance of the conspiracy that took him up to new york and secondly to the southern district of new york and you've yet seen you in a blur but i think it's it may be logical but but it seems to me we've got to observe the formality of the distinction between the southern and the eastern district of new york second only reason jackson is in the southern district of new york as he's arrested the agents ask him to make the phone calls and the agents ask him to say you are in new york right into new york but i think it's separate here too because there are any case like this who hear the again putting aside the foreseeability of the verizon hours bridge but where the only connection is is the agents bringing the person into the southern district in asking the person to call and ask them to person to mention new york but i think other cases like this i think it's even more tenuous in cases in which this court has found that that for example when someone trades in a security that he could be held into a venue in the southern district of new york even if that traitor has no idea that the trades would be different on those and those cases say it has to be foreseeable to the trainer that's true but i don't think there's six weeks ago and think but again i think it's important to bear in mind the context here that the object of the conspiracy at the time these consensual calls were being placed was to get paid to get back the money from jackson and this  after they all have actual knowledge from jackson that he's in new york they take steps for months to get their money back to file and jock's and so we've got ten you know coups got the october fourth call and just that call and then after that in terms of injecting himself or for seeing any contin anything in the conspiracy for ten york v z jackson directly it goes cold right that that's not does not true judge farce and the reason for that is that after the call tang takes a more enhanced role in the conspiracy and as he says in recorded calls he is working on the front line  on the same page with thomas and perea and it's not simply some amorphous you know participation in the conspiracy the purpose at that point is to get the money back from jackson to find out where he is and get it back and he exchanges a call with perea a wiretap to call in which he says thomas ate the food which means essentially thomas made off with the drugs and hasn't page you so again this is an act in furtherance of the conspiracy wants to hang up has actual knowledge that jackson is in new york than in subsequent call in november of two thousand and twelve reus says to tang york your friend and i've forgotten the wording is playing hide and seek which suggests contrary to what you're arguing that he did not know or have actual knowledge as to the location of jackson and no judge forrest i think the most in the context given the tang up had actual knowledge from jackson before that  call was take take that call was placed the most reasonable interpretation of that argument is simply that jackson even though they knew he was in new york he was ducking perea and he was ducking thomas not simply that they didn't know where he was but simply that he was being evasive and was not paying the money back unless the court has any further questions the government will rest on its submission the judgment of the district court should be affirmed in all respects thank you we'll hear the rebutt as a guy from the aisle and i must take issue with the government's assertion that new york only means manhattan it cannot only be manhattan you workers of very big state buffaloes in new york all but he's in new york maggie falls in new york that is not enough information to rely on judge one of the cases that the government cites government says it's just a matter of foreseeability by a preponderance and that a jury could find them when you say i'm in new york that that means that probably more likely than not you're in manhattan i don't think there's any evidence of that judge and haven't seen in the case that that support that notion and i would submit to the court that that was that is is it is erroneous i'm from new york and i'm not from that i'm living proof that that's not that is not so judge one of the other points that if that were that was in my brief and it was touched upon by by the government or the threats  it was alleged that my client in a conversation with mr tang yuck made threats against mr thomas and mr jackson and the government sentence assessment additional to offense level points on that judge those  threats in the car in the entirety of the context of the conversation of first and foremost the conversation was never conveyed to either mr thomas or mr jackson there was no evidence of that second the very i just wanted to point the court quote out to  the very last line of this conversation was mr pearl is saying i wash my hands of that he said that the the the entirety of the conversation was if i say if i see him on the side of the road i would run over his mother expletives or what was the other part of it in town york said i don't know how he can live like that and in response he said he might die like that and then his last words were i washed my hands of it judge i thought i think that conversation was pure hyperbole it was in the but isn't that exactly the kind of thing from which different reasonable inferences may be drawn you draw one the sentencing judge through the other and it's only you've raised it now in this portion of the argument in the context of the sentencing proceeding it's only by a preponderance and judge when he says i wash my hands of that heat he remained he negated everything he had said previously i don't think i don't  inference it's an inference you're drawing yeah i mean it's a common expression that we all use i wash my hands of that since the time of caesar we have used this expression judge you know i don't think that that by a preponderance by a preponderance standard should  as i just want to come back briefly i'm not even sure i'll need all my time to this issue of a venue and a few of the points that the government has made i think to judge chin's point about the the issue of the southern district versus eastern district of new york it's worth noting even if you assume all this knowledge that the government wants to build into the defendant's awareness of where the cooperator was going to sell those drugs he went to queens he went to the eastern district of new york and he was arrested in the eastern district of new york so even if you play out the government's theory you wind up across the river in the eastern district of new  york and so i don't think it's established the driving across the verizon and that narrows bridge is within the an act within the southern district isn't it absolutely your honor we never contested that issue the issue for us on that point was the reasonable foreseeability to any of the defendants that he actually did that my only point is if you're going to instill all of this knowledge into the defendant's about their familiarity with mr jackson one would assume they would have known he was going to queen's not have to sell those drugs second i think to the point one of your honor's made during the course about the breath of of the government's theory and what this could mean i mean if you look at page thirty three of their own brief as they describe the sheer size of the drug shipment and the commonsense components of it they say at the end accordingly it was foreseeable to the defendants that jackson planned to sell cocaine elsewhere exposing them to prosecution at that location essentially creating a national venue for drug trafficking  that really fair a national venue it just doesn't limit it it's wherever he ended up getting caught selling the drugs that they would be vulnerable potentially if they if they excepted it knew that he was entitled and planned to go out of state someplace that he really care where songs they paint him i think that i think the laws different that they that each defendant needs to reasonably for see where that location you're saying because it was he could have gone anywhere they should have foreseen that he could have gone anywhere and they were then subject to venue and where do you respond to the government's argument that it need only prove that one codefendant reasonably or saw or should have reasonably foreseen that the activity would would reach into the southern district that's in that's inconsistent with the in devoted individualize nature of the charge a jury was specifically told to consider each defendant separately on the counts of the conspiracy as well as venue law requires a lot requires foreseeability for a defendant in order to see to to establish venue now it could be foreseeable that another defendant is going to assert himself into into the district it doesn't have to be that individual but it has to be something more than unknowing participation by a by a third party and you're saying it has to be foreseeable as to each of them and it has to be forseeable testing each defendant thank honour's i would also agree that the foreseeable the first the ability must be individualized it's a constitutional right that attaches to a specific defendant so too and particularly in this case where the only foreseeability was with jackson himself to import jackson's knowledge of his own life history to the other three defendants i think would violate their constitutional right to to be tried in in a jurisdiction where venue is proper now with regards to the there are some additional facts i believe supports mr thomas argument one thing that i think the court must bear in mind is that mr jackson did not have a new york cell phone mr jackson cell phone was a florida cell phone the area code for a cell phone number was for florida and i say that because this isn't the case like rami or some of the other cases in the circuit where the defendant was calling new york specifically what the he was calling someone with the new york cell phone whether he was calling someone at a pay phone that was in new york the defendants are contacting a florida number two an individual who they know lives in florida so even when derrick jackson contacted mr thomas his correct and that's where he lived with his wife and that's and they drove from florida to new york so i also think that those facts important was also important that this investigation didn't begin with any of these the pendants it didn't even begin with jackson it began with a new york drug dealer named fulton who was the other individual that was in queens  taking the drugs from mr jackson for distribution this was a new york investigation of a new york drug dealer that then connected to jackson this was not an investigation involving any of these three defendants and one thing that hasn't been mentioned which may or may not be significant is that these three defendants were from the virgin islands they were from st croix so when there are statements being made by the government to the effect that well new york would mean manhattan it would not mean grown up in st croix who went to high school in st croix when you when you mention new york i would venture to say that most people think of brooklyn because they think of the west indian day parade so the culture of the virgin islands and these offenders would have a link to brooklyn then it would have to manhattan and that's what they would associate new york with they were new york with their culture which you know plays out in brooklyn with mr jackson prior drug involvement in brooklyn i don't know i don't know and i don't i don't think it's in a record so so with regards to even viewing the facts in the light most favorable to the government what the facts do bear out is none of these defendants and including mr thomas had any knowledge of mr jackson's personal history in any associations he may have had with the east coast in new york it was never even suggested by the government at trial that any of these defendants including mr thomas knew that the price of drugs was higher in new york than it was in florida i'm sorry  in conclusion i think when you look at the totality of all of the circumstances that were raised in the briefs in the oral arguments today the court should overturn the the findings of the lower court and vacate the judgment