argument was not addressed by the government in its brief my concern is that application of the th circuit's sufficient nexus stand that there must be a sufficient nexus between the defendants conduct and the united states so the prosecution would not be fundamentally unfair has resulted in any connection being enough the standard which has been adopted by this court recognizes that some applications of extraterritorial statutes to foreign conduct may be arbitrary and unfair and thus violate due process we urge the court that this is such a case the conduct prosecuted here was not done for the purpose of harming the u s u s citizens or u s interests factors that in the past have justified application of u s laws to foreign conduct the government highlights the sending of the material in the payments in return but those actions are the bare minimum to even get us before the u s court there is no crime here without the sexual abuse and the filming of the sexual abuse by a ukrainian citizen of another ukrainian citizen in the ukraine but no question  the due process argument which i've made in point two of my brief which is that even where there is or maybe an appropriate extraterritorial application of a criminal statute there may be circumstances under which it would be arbitrary and fundamentally unfair to apply it to the foreign fonda and that's what the the th circuit sustainable again which has been adopted  by this circuit says that even where there is a conduct that would permit the that in some circumstances would permit application of the u s statutes the justification for the for denying the due process claim in those cases involving any importation of narcotics had to do with the fact that that conduct sending large amounts of narcotics to the united states was designed for and with and the purpose is to cause harm to u s citizens and u s interests in the united states by bringing something that's going to be sold within the united states to people in the united states is going to cause harm here that is not what we have here this was this was the sexual abuse of this child in the ukraine was sent to a single individual right but that's not the only harm that is behind the stacks of armies about a market or child pornography that gets lost and then this video already video is once in the united states could go anyplace in the united that addresses that and that was not charged here there's no allegation that that ever happened in that fact there's no evidence that it ever happened it was paid for by an individual and sent to that individual and never went beyond that individual so the harm mean yes the harm could be broader but the the harm that underlies these statutes is the sexual exploitation and sexual abuse of the child and all of that occurred in the ukraine again by ukrainian citizen upon a ukrainian citizen in the ukraine and that is why we arguing that they're under the facts of this case and the broader circumstances under which mr challenged angle was acting the pressure that she had both financially in her country and being brought by a person here and all of those things we see just does not provide a sufficient nexus to provide to avoid this being fundamentally unfair to prosecute miss  united states this should be in our appropriately charged in the ukraine and the ukrainian government has weighed in on that and and has expressed in a communique to the u s government that did this several years ago that they they believe that they are the proper authorities to prosecute this conduct so again the fact that there is some connection to the united states a minute certainly can't and would not argue that there is no connection to the united states obviously there is or we wouldn't be here but the the th circuit's sufficient nexus standard doesn't suggest that any cond is is simply makes it sufficient to avoid the due process problem if we were to do that there's no need for the standard and i suggest this court that the existence of the standard and the amplification of the standard what we look to is the what is the conduct what is is there d a particular harm to the u s citizen to a u s citizen u s interest that overrides it that makes an appropriate for the u s government to and would urge the court to reverse the convictions dismiss these charges and return this fellow try to go to the ukraine where ukrainian authorities determine how best to address for congo thank you give my hair a will hear from the government may it please the court my name is alan bodie i'm an assistant united states attorney in eastern district of new york it's not necessary for the court to decide here the scope of the extra territorial reach of the conspiracy to sexually exploited child and transportation charges because there was ample evidence of territorial jurisdiction here i'll be very brief since council really did not argue this  point was not charged with sexual abuse in the ukraine she was charged with conspiring with the united states coconspirator here in the eastern district as part of that conspiracy she engaged in numerous communications to and from the united states she received directions as to chopper narvi to produce she requested payments for the chopper now graphy she sent and she received approximately forty eight dollars wire payments totaling over twelve thousand dollars in exchange for her work she produced approximately forty seven dollars videos over a seven month period in two thousand and twelve which she then transported into the united states to her coconspirator this is not conduct occurring quote wholly beyond the borders of the united states as this core talked about in weingarten when considering the extra territorial reach of another statute related statute so turning act where this conduct was st criminalized congress specifically said that photographs and films that the legislation was attempting to cover were in fact produced abroad and at that time it was common for photographs and films made in the united states to be sent to foreign countries to be reproduced and then returned to the united states in order to quote give the impression of foreign origin so from the outset this is conduct the congress was trying to capture  distribute this agreement agreed there's no evidence that he did distribute it was found in his collection but the what counsel was arguing is that it didn't feed the market and it certainly feeds the market because he now has a well it's valuable to him your honor and he paid twelve thousand dollars over a variety of of over seven months to college and go for that child pornography and she sent it here to the united states and the fact that someone who has a say actual interest in children territorial application and as i understand it there's a presumption against but here you've got language in the two provisions that you know say that using or affecting foreign commerce but then that's not  you then look to legislative history to i think this is what you're getting at ascertain congress's intent whether it was to reach for an activity yes is that i'm just trying to make sure my analysis here's your yes that's that's exactly right our st position is obviously that you don't even need to get to that presumption because this is territorial but if you do get there and the plain language of the statute is not enough then you would go to the legislative hi example which this was a conspiracy there is a jurisdictional hook where things that are that where it's actually sent to the united states which it was here but you could conceive of a situation where there child abuse in the ukraine by someone in the ukraine with no intent to send to the united states and that is not the case here there's direction here but it is a case in which the area basically outsources production right exactly and he gave her scripts that to follow she followed the script she requested payments but i could see counsel might have an argument where this a case where she never intended to send this material to the united states but she knew from the outset that that was the purpose was to send the united states and i submit it would implicate narcotics statutes wire frauds and all sorts of statutes which target foreign behavior that affects united states citizens and the  application yes i don't think the court needs to reach extraterritorial questions here weingarten the case that we cite in our brief where the court was looking at transportation of a miner's of a minor in  in for the purpose of sexual act was moving but from one country outside the united states to another country outside the united states in the court was deciding if that was you know enough here we don't you know it's not a question like that there's constant found it was not an abuse of discretion to deny you still a judge is he is so you don't tell him i said that so you know here i was not asserting any legal innocence argument a stint substantial amount of time elapsed three years in the government would be stanch will substantially prejudiced by the withdrawal of the plea although i'm sure they could be recalled all the agents except one of retired  and the harder it would have to be reexamined at this point your honor because the forensic examiner has retired and all his files are are not current you'd have to load the drives again and reexamine them so it would cause example the government and in the case there is no legal innocence argument where it's an extra territorial statutory argument we submit that that would not be appropriate unless your honour's have any questions for me i rest on my brief this point