the st of these points is that the government the government ignores riverside versus mclaughlin which i have to confess i found strange since it's the case i most rely on for the due process violation that occurred in this case they claim that there is no supreme court case on point to establish plain air but riverside vs mclaughlin in fact unanimously held that forty eight hours is the outer limit for an initial probable cause hearing that case also holds that is the it's the government's burden affirmative burden to explain any undue delay so when they say perhaps this happened perhaps that happened that is a failure to meet their burden it's up to them that's on page fifty seven of the opinion by the way five hundred u s fifty seven it's up to them to explain why my client was held in a brig for seven months for seven weeks instead of being promptly brought before a federal judicial officer they don't and they don't deny that form shopping is in a court of justice politicizes the federal courts by having the executive branch take the position that some federal courts are better for them than other federal courts that is an assault on the neutrality of the judiciary and this court should not countenance that the remedy is very simple this case should be tried under the law of the th circuit as it would have been if they had followed the constitution the nd issue that i want to address is the booker problem the government does not ever say that they can win under united states versus booker their argument in cases like this is always to know what controls and not booker but that is a violation of equal protection every american citizen is entitled to the benefit of the constitution as an interpreted by the united states supreme court and for a court to give its own precedent effect without considering whether it can be reconciled with supreme court seeks to prosecute when the government fails to follow these requirements the end provides courts no jurisdiction over prosecutions under its terms because the government failed to meet all of the m t l e a s jurisdictional requirements we very kate the defendants convictions and sentences for lack of jurisdiction that was not just a few a few weeks ago and that's the united states case judge martin part pointed out nobody else to they only asked are you the master of the vessel that's all that was asked in that case right yes and she points out they didn't ask are you the individual in charge but she also points out that nobody says does anyone claim a nationality that's another thing she mentioned dishrag and where the problem and i want you to address this and this case i agree with you they didn't say is anybody in charge but they did it is anybody a master and twice they said does anyone claim a nationality they ask a trice we are not proceeding under any error of the coastguards questioning to get those responses ok what i'm going with is the general principle that judge martin talked about strict requirements must be followed of the end d l a for there to be jurisdiction and the requirement which was not followed in this case was the government not getting a state department certification because the government in this case  trial number two because we had trial number one it was a mistrial trial number two the government in its response to the motion to dismiss for trial number two i thought if if nobody claimed a nationality the story i know they did go to the state department they did what he a but they said they didn't have to so help me with that yes yes judge st of all the st documents filed in the docket in this case from the government was the criminal complaint the criminal complaint was a sworn statement from the government that there was a claim of ecuadorian nationality the government once we filed the motion to dismiss for trial number two the government never went forward with trying to prove any particular basis for jurisdiction and so what happened then i see my time's getting running out so what happened then that the trial testimony of the coast guard officer during trial number two basically confirm that the government was proceeding under the claim of nationality and so if you look at because the questions were asked by the her double what it was actually coastguardsman miller and he actually stated and i'll go right to his testimony real quick if i could just have a couple more seconds you're going to find his said once i pass the information then i wait on an s f statement of no objection to complete the full law enforcement boarding because we have to go through ecuador so i pass the information and goes on to  say that they did wait twelve hours something like twelve hours to get ecuador's response and yes still for twelve hours they did it yes and the reason why they were required to do it is because of what's in that st document in this case now the last thing i would say is that the when you look at the need for certification it says the foreign nation may respond by radio cable and so forth that's may respond combination your honor which is responding to the motion to dismiss by citing the the one that talks about a claim of nationality that the foreign nation neither confirm nor deny has and the actual testimony of officer miller who's the only  thought they also argued we didn't have to do anything in the district court because there was never a claim the nationality they never made that argument to the district court they may filed a filed the motion to dismiss for trial number two the response was they were proceeding under the one about a claim that's neither confirm nor deny and then when miller testified in trial number two he talked about going to circuit and it was well before the amendments that took place in the guidelines and two thousand and fifteen this case as in united states versus cruickshank and united states versus press and do the court relied on only one factor in determining whether mr karr bases montano and the other defendants are entitled to minor role he determined and i'm going to quote him there are a lot of people involved in this industry but certainly one of the critical roles that has been performed is the transportation is to be held accountable for the conspiracy for which he has been charged and his particular role in that conspiracy not some larger conspiracy that involved the manufacturers or just tribute or distribute i can't say it somewhere else and fifteen that's guideline was amended and amendment seven hundred and ninety four dollars as now set forth in common three of the minor roll guidelines says there's a there's a bunch of factors the court should consider the degree to which the defendant understood the scope and structure of the criminal activity that agreed to which the defendant participated in the planning or the organization of the activity that agreed to which the defendant exercise discretion make a decision making authority and the nature and extent of the defendant's participation in the commission of the activity and that goes on to say most importantly for example a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for adjustments under those guidelines and then it goes on and says the fact that the defendant performs an essential role or an indispensable role in the criminal activity is not determinative this was the only factor that judge moore looked at when determining that mister and the other defendants for that matter did not qualify for a minor role in this case there was sufficient circumstantial evidence of mr kobe says montana played a minor role you lived in a shack in colombia on the on the pacific coast with his wife and four children they had no running water they saw he was a fisherman his family for two generations had been fisherman or their sole cause there's certainly no evidence in this record that mr cobb ace's had an ownership interest in the drugs in anything other than transporting these drugs from one place to another or even had any control of the ultimate destination nor was there any evidence that he was to be paid a huge amount of money how many no three says a defendant who does not have a proprietary interest in the criminal activity and who is being paid should be considered and i repeat should be considered for an adjustment the court clearly erred in failing to take into account mr six hundred and fourteen dollars pilosa but the court didn't look individually as required in a wide three thousand five hundred and fifty three at the nature and circumstances of the defendant again my client had an extreme life of poverty he had no prior convictions the court never once discussed the history or the nature of any of the defendants in this case and i think this case the sentence should be vacated and the case going to be half of the united states with new counsel tables he found rodriguez shocked one of the prosecutors who tried the case in district court a combination of the record in this case this court's binding precedence and the political standards of review for close all of the many claims that have been race here and we ask that your honour's affirm in all respects unless your honour's prefer otherwise i'll begin with jurisdiction and this cases or this court's recent decision in medina is squarely on which doesn't appear to have any explanation whatsoever and i mean by that reasoning could they take a ten year delay i mean how long of a delay would be allowed and what is the rule that you are advocating for that should apply especially in light of the supreme court opinion sure and this case is a perfect example of why this court routinely declines to entertain issues raised for the st time on appeal that are highly fact intensive if there is one proposition of law that can be gleaned from the cases applying rule five a one moment we don't we don't necessarily refuse to entertain them we entertain them under a plan and error standard right so i mean it seems kind of problematic that it's seven weeks and no explanation sure and so if there's one proposition of law that can be gleaned from the cases applying federal criminal procedure five a one b whether it be discrete this court's decision and purpose the th circuit's decision is a car off or just martin's concurrence in the studio that proposition is the length of the delay in and of itself is not dispositive what matters is the purpose of the delay and what happened during that delay we don't have any of that information rex and the reason we don't have the answer to those questions is that the defendants never raise this issue below and so on certainly on planar review the defendants bear the burden to establish error that is plain and again there is no cat there is no categorical rule in any of the cases that a certain amount of time is violative of of rule five a one b and so the defendants cannot establish error that was plain i'd like to i'm saying let's see ten years had gone by i mean it's something what is the rule that you would apply you are relying solely on the plane or status of this is that correct well we're relying on the fact that this is big because this issue was never raised below the defendants can't establish air anywhere but what we're relying on is this court's decision in purpose which says which takes for granted the fact that the reasons for the delay are what matters and the court has said it has said as much and here we just don't have those reasons had the issue been raised and flushed out below the government would have been able to put on evidence explaining the and after all why should they when they can have the best of both worlds they can not only didn't go to trial i'm sorry and less and less we unless we establish to rule from this right i mean then you know if we want to head and we established a rule that this is what's required that the government has to you know demonstrate these things i mean it seems to me that it's inherent upon the government to explain if it's going to have a delay of seven weeks i mean that just seems kind of excessive agree well i mean again i mean you know this is a motion that defendants do bring and they routinely bring in cases of lengthy delays and you know another issue in this case is that the defendants would not be able to establish prejudice i mean most often as i'm sure your honour's know these cases arise in situations where for instance the government extracts a confession out of the defendants during the delay or is the i'm sorry that's ok so their argument is as i understand it the prejudices that had the government proceeded to bring these defendants directly to proceedings in the united states it would have brought them to a place that was within the th circuit right maybe that's not a recognized basis of prejudice i mean maybe that's what the answer is that you wind up with one jurisdiction versus right now other but but counsel for the defendants is saying well that's kind of a bad rule for us to establish because then it allows the government to form shop and that violates sort of the you know the judiciary's independence sure and i'm glad you raised that because i'd like to push back on the premise that totally unsupported premise that there was form shopping the defendants argue essentially that you know the government avoids the th circuit like the plague in these cases because the law is so bad compared to the th circuit that's just not true i mean we don't routinely bring all of these cases in the th circuit i mean in the last year and a half to two years alone we've seen published opinions on and the cases from the st circuit nd circuit the d c circuit and maybe most critically of all a cursory westlaw search of district court opinion shows that multiple prosecutions under the m d l e a were brought in the last four to five years roughly around the time that this case was prosecuted so you know to the extent that the government is trying to avoid the th circuit tactically it's done a remarkably bad job of it what about mr bass mrs argument that the supreme court has previously established it there that it defend it must be brought within forty eight hours barring some good reason why not sure so i respond to that in two ways st of all well i guess my principal response is that city of riverside does not establish forty eight hours as a constitutional ciena quando under a constitutional end all be all what it says consistent with purpose is that the government should have the opportunity to explain what happened in case arose under the th amendment and the th amendment doesn't apply to arrest civilians overseas so maybe but we have said that there must be reasonable suspicion to go onboard a ship  international waters have we said that yes your honor as you have doesn't that come from the th amendment that does come from the th amendment i don't know whether that argument was made in that case but right so it seems like we have applied the th amendment in international waters ok i mean you know taking that for you know except that certainly for the sake of argument again we come back to my st point which is that the two lines of precedent are not irreconcilable in both of those cases that no neither case sets out a firm end all be all forty eight hours or nothing in all of those cases the government had the opportunity to put on evidence to explain the reasons for the delay in here because the issue wasn't raised in district court wasn't fleshed out the government didn't have the opportunity to do that can i ask you a question about something else you're so just of course i think rivera binds us to conclude that primmer and a silence can be used as substantive evidence of guilt but it seems like that that holding is wrong obviously we are bound by the prior precedent and all but i was just interested in your views on the correctness of rivera sure  so you know we certainly stand by the holding in rivera and you know to the extent that counsel you know today argues that the supreme court that the pipette panel president will somehow unconstitutional or somehow you know where for whatever reason should be abandoned by this court i don't know i mean i'm happy to speak on that i don't know that your honor it's not i'm not suggesting that we wouldn't follow the prior precedent rule but it seems to me that our holding in is based on sort of a flawed interpretation of supreme court precedent and in the case relied on that involved use of silence primmer into silence for impeachment not for substantive evidence of guilt and it seems like that's a significant difference i john didn't know if you want to address that specific legal issue it's up to you but i think it's concerning me and i you know judge jordan i think is previously written on th it depends on the case but sometimes it might be this almost dispositive right in that we don't raise the issue of this case correct that's exactly that's exactly right very very carefully that whole part of the drive and never was raised that would raise the braves right right that's exactly right and i don't think that it that it does come into play in this particular case can i turn our attention to the arguments of your colleague regarding the minor role i just knew or did you want to address that her argument is basically that look the guidelines were amended after we issued you for own right now require consideration of several specific factors and only one of those several factors was addressed do we need to send this back to the district court to address those other factors on this particular guideline and if not why not share your honors and the short answer is you do not for several reasons st of all we would submit that this particular argument that we're hearing today and that we saw in the reply brief wasn't squarely raised in the initial brief the way i mean at least the way i read that brief in the way i responded to that brief or the argument that i responded to was that the district court erred in impermissibly concluding her focusing on the charge conspiracy as opposed to some wider broader conspiracy involving other unnamed and charged individuals that's the argument that i glean from the initial briefing that i responded to in the reply in the reply brief we're getting this argument as i see it for the st time and therefore in our view it's been waived but putting that aside i would colloquy denying minor role appears i think at the bottom of twenty one top of twenty two but for roughly eleven or twelve pages before that there was an extensive colloquy back and forth between the district court and defense counsel where a number know the district court referred to the fact that you know the you know that that the defendant would have made a lot of money or at least a lot relative to the put you know the poverty the impoverished place where he came from and so you know in this scenario we believe that the district court did sufficiently take the factors into account and it's worth noting too that the men in seventy four didn't overrule amendment seventy four is merely clarifying rather than substantive which explains why it applies retro briefly the government didn't push back on the form shopping in their brief they're pushing back on it for the st time now that i can i os questions because mr mask in his is asserting that the reason we shouldn't consider the seven weeks a problem is because it was never raised before and that even under city of riverside the court can see in those cases of course the court was considering arguments that the government had raised i mean in the in that case wanted even less time they wanted immediately upon being processed and what the case says it was doesn't it say it's the outer limit if there's not an explanation the old know it says absent extraordinary circumstances not an explanation and that's kind of the same i mean yes stationeries circumstances would have to be an explanation that would satisfy extraordinary circus there's a whole list of things that do not attack nickeled tactical delays does not receive a probable cause determination within forty eight hours the burden shifts to the government regardless of whether it's raised or not they know when they have somebody in custody to demonstrate the existence of a bona fide a emergency or other extraordinary circumstance that is the law they're aware of it they never discuss it in their brief they try to ignore it and they rely on purvis which michael often over rules so they cannot wait this is the law two other quick things there was did write about pre miranda silencers a case by justice stevens called united states versus hayes i don't remember the cite but i provided to the court where the supreme court held that under supervisory powers not the constitution so this doesn't apply to states which is why the heaviest cases come out differently pre premer and a silence is insoluble ambiguous and not admissible in federal court for any purpose thank you to ninety one if you go to the next page page ninety two docket entry one hundred and seventy two the testimony of officer miller he says so i'm quoting now from line twenty so if we don't get a claim of nationality or a master to take the claim from we take the last port of call as the nationality of the vessel and when you ask the last port of call what happened answer sillies told me they left from man to ecuador so except that in that case i mean here the problem is that no i mean they were pointing at each others who the master has right so and part of b requires it's the master who explains what the what the particular port of call is really guess what the the flag country is right true but the government acted in a way that the government accepted the nationality was ecuadorian and they also accepted it punish the government for maybe being on the safe side as an asking ecuador as opposed to just you know because in this case it wasn't there was at that time it was there was it was not clear who the master of the vessel was i think if we look at the facts in the case the facts are with you the st entry in the case which was the sworn statement of the d e a s official saying that there was a claim of nationally made you put it together with what the routine practice was to use the last port of call as the nationality and then all of the bureaucratic things the government went through to try to confirm with ecuador as the claim of nationality country then they were in c which in their response to the motion to dismiss the government talked about c at the rule two hundred and ninety actually at the hearing with judge snow on the motion to dismiss the prosecutor talked about she had just come back from the th circuit for oral argument and she was talking about the certification and how the defendants were trying to go behind the certification so the government at the motion to dismiss hearing with judge snow was fully aware of the sort of certification requirement and in its response had talked about that subdivision and was mentioning the certification there so i think all of the evidence in let me just say this judge rosen you know bondo which is  case that the government relies on the obama case there is a quote it says the court of appeals should not act as fact finder in the st instance the government is asking this court to act as fact finder in the st instance instance and try and find facts that support its position that it's proceeding under no claim of nationality was made when the facts show that there was a claim of nationality in court didn't the district court in adopting the government's motion to find jurisdiction make facts make factual findings consistent with what the government's position is here on appeal i believe your honor is referring to documentary twenty nine which was the st trial which was in this trial and i did not find in the record were judge moore ever adopted the or ruled on the government's motion regarding documentary twenty nine so we had the trial there was no ruling that i could find from the court and that in mistrial and we went into the next phase which was trial number two and that's where i filed the motion to dismiss the government never filed a response well the government  response to the motion to dismiss but they never had they never argued to judge snow or or even judge moore that they were proceeding under that subsection b where there was no claim of nationality after being asked so i would ask the court to strictly follow as judge morton opined in garo that this is a sweeping statute and for that reason strict compliance must be must be followed and there was no strict compliance with the certification here which was required under everything i just mentioned the reason i'll finish real quick the reason why i filed the rd supplemental notice of this court's decision in forever a two hundred and seventy five sorry let me ask you straight out mr mascon says well you know you all waived the issue of balance about the amendment to the guidelines and that those other consideration should have been made by the district court because you didn't really argue it into the reply brief did you have a response that you wanted to be heard as your honor my issue to i specifically says state that the fact that i go through the five factors set forth in and ninety four and i said the fact that and i put focused upon the fact that the defendant perform an essential or indispensable role of criminal activity is not determinative with emphasis added which is what the court determined here