very well you may proceed good morning to your clients the last of the mohicans here that's right your honour's and he is the last of the mohicans because this case is not about challenging the length of a sentence it's about a connection right he's back in the philippines your honor so he was he finished his sentence of sixty months and he went into immigration custody and was deported and voluntarily wanted to leave as well so he's back in the hole so owners this case there is and i would like to reserve  under the two seven seven eight is the arms export control act nine twenty his probation against importation weapons since united states without permission of the attorney general and the reason that there is an extra tauriel jurisdiction your honor says because there is a presumption against extraterritorial jurisdiction there is nothing in the could i ask joe drawn some apparently when the papers move it comes on to the microphone it's making so i clear no problem if you just push the microphone back the correct great thank you statute is actually importation into the united states or exporting from the united states that is the locus of the statutes prohibiting the entry of weapons into the united states or the exportation of weapons from the united states and there is a case that the boehm an exception which was decided back in one nine hundred twenty two and that allows for extra tour territorial class not logically dependent on their locality for the government's jurisdiction and the case to give several examples about what type of statutes are not dependent their locality for the government's jurisdiction and i would submit your honor that importation into the united states and exploiting from the united states is dependent on the locality of the statutes and therefore our issues and the court explained that the presumption against terror tory ality can be overcome by a clear indication of extraterritorial effect an indication that can be expressed or implied so why nature well the importation the effect is the effect in the united states or the effect of exporting from the united states what and congress had a chance to make it clear when when it passed the brokering men meant when it talked about in another section of the arm export control act it talked about how how with regard to registration it was only going to apply towards regulating persons who failed to register in the united states or u s citizens a bribe and if they failed to remedy or or to address the the whole regarding the application of extraterritoriality under the statute prohibiting the export or imports of weapons from the united states and congress clearly could have expressed itself congress knows how to express itself and want and i would like the court to  step back and look at what the implication is if we extend extraterritorial application of these statutes into foreign countries because this case is a perfect example of what happens we had an f b i sting operation where they targeted individuals with no criminal records in the philippines basically asked them to get them weapons my client no doubt introduced the undercover agent a customs official in the philippines he introduced them to a weapons seller they provided the weapons it is a crime in the philippines to do what they did they could have been prosecuting the philippines instead what happens is the government agents not only do they set them up and operation for three defendants with no prior criminal records then what they do is this because they don't trust the defendant they take every single step to import the weapons into the united states they get the import documents they get the export documents they get the shipping container they get the ship the weapons are heading into china the case it didn't then contacts with gotten china to make sure that the weapons arrive in the united states they arrive in the united states our clients are in here are caught my client did nothing other than introduce the case agent to the weapons supplier and to a customs official and the evidence of trouble was your honor as far as this customs official their own witness who was who did it customs investigation of mr ritter as of the customs official percy worked at the airport he didn't work at the port with that custom official determined your honour's when she testified she admitted that she investigated mr represent and he did nothing to facilitate the shipment into the united states and what i would say your honour's there's a case month seanie that talks about talks about when there were actions outside the united states and something where it could be like smuggling or whatever when they did that then did it intentionally conses intentionally causes the actual crime to occur in the united states that is not an extra territorial application of the statute but because of the jury instructions and this case because of the prosecutor argument what was allowed to happen at trial the jury never decided that question i would say your honor so that if our clients and my client had and there was pro evidence that he intended that shipment to come into the united states and it was presented through the jury instructions and that manner and it was argued by the prosecutor and that way then if they were convicted then we don't even get to the question of whether there's extraterritorial application of the statute it was because they intended as among seniors the case cited by the government cited by the court in a district court it which it was held in that case it was not an extra territorial application it was in fact because they intended to cause the crime to occur in the united states that it was not extraterritorial it was actually had had in effect is your honor set in the united states intended by the defendants therefore it was there was subject matter jurisdiction under staffed we didn't get to that question but that's not what happened here your hono as we presented in our briefs there was an extensive jury conference we proposed alternative jury instructions to to the court which was rejected by the court and those jury instructions asked because we have to look at look at the statute here ok there's a liability which is aiding and abetting there is to be liability willfully causing it's clear this case is not charged as our clients actually importing the weapons because there's no weapon there was no evidence of it too and this means aiding and abetting but you can't aid in the that an innocent person it was presented as a to be case willfully pozen ok but what happened at the jury instruction conference what happened to the prosecutor's argument this to be case was converted to a to a case well congress passed to him to be the mean different things to be means willfully pausing and the reason why it's willfully causes could you can't it mean something more than just aid in the bat but as we cited on our priests your honor basically the court instructed and a iding and abetting their e and rode out of the statute any requirement that our clients actually be proven to the jury are found by the jury to have intended to cause the weapons to be shipped into the united states so when you take the combination that's why the two critical issues in this case are that are the view extra ter tauriel application and we can see that if there was proof that our clients actually intended and there was proper instructions on that issue we don't even get to the question of extraterritoriality but what happened here your honor says that when the court instructed on aiding and abetting theory he rejected our alternative instruction that's in the record and what the prosecutor argued in closing is all you have to do these defendants to be found guilty they just have to help out a little bit weapon sales means that they were an indispensable part they aided and abetted and the prosecutor who continually used in their closing she did not use the language of the to be statute she used the language of the two a statute aiding and abetting aiding and abetting we they just helped out a little bit so what what happens here your honor says this is really important issue because if we allow this to occur then the united states can reach into any country in the world conduct a sting operation and then reach and then somehow by hook or crook get the thinness to come here and then prosecute him for what he was really in internal weapon sales in the philippines because the court improperly weapons got from the philippines to the united states solely by the direction of the agents to but there was no evidence that our clients in fact actually intended that the weapons come into united states and the jury was instructed that they didn't have to find that in fact the test all three defendants testified at trial and it was speeded that basically the agents basically represented too that we just need your help to get the weapons out of the philippines we don't care how and our clients didn't ask questions about exactly where the weapons were going there was an e mail to my client that was sent out one point saying the weapons may go to long beach and then t awana there was a dispute a trial but taking the evidence in favor of the government it showed knowledge but knowledge is not enough because if you are charged with willfully causing it under the statute you have to intend that the result the curves you have to want the result occurs and it was a relevant it was not  that i guess your argument would be who they don't really care all they care about is getting their money right but but i think that they do really care and i mean there's an argument you can take care of because you want satisfy the client because you want the business i mean you know i mean if you solve things and then sent them to england and they said i'm you know i'm i'm representing a mexican cartel in the united states a client's wanted that result or intended that result the jury instructions said that the defendants have to know or ate in the back and and we have jury affidavits which we submitted in fact yours were confused over the meaning of those instructions and they stated in declarations that they didn't know that they were required to find that the defendants knew that the weapons were coming in and states but under my theory your honor for extraterritorial application  the statute to create jurisdiction these defendants needed to ten that result because otherwise your honour's just did i mean you're basically asking us to construe it in a way this to the people because you said they could be punished in the philippines for select the countries punish them down but that sort of the elephant in the room is obviously the united states has an interest in keeping you know rocket launchers and you know what you know whatever  bushmasters and you know all of those things out and the only way that you can keep them out is going to countries where they're kind of corrupt and they have a system where they can get things through and and get them out when you're under be you know i mean i  think the united states is is pretty enter rusted in having that authority well your honor but you have to apply look at whether i would say your honor that the statutes  i just wondering if this is used all the time or is it that no one ever makes this challenge because it's so obvious that it would be extra territorial you know i don't know yet and if that it's sort of i thought well there's really why isn't there a case out there well there isn't your honors and because everyone else s will dock or set applies extraterritorial way or is it just that you got you finally articulated it been that finding so the only way around it is through the bowman exception in the bum an expressionless all these all these crimes that really the locus of the crime is a broader at the high seas like bribing the consular office so there's nothing really go exactly  point as to the statutes right so this is a novel issue but we're saying is i'm not saying that these defendants in a in a hypothetical situation could never be prosecuted under these statutes but they should be prosecuted when they commit conduct where they're intending that the weapons go to the united states it would have been a far different case i don't think i'd be able to argue to the to the court if the f b i was investing in a national trafficking and a weapons manufacturer trafficker when tim say hey i need to get these weapons into the united states to the mexican mafia you know we just wanted to help facilitate with a little bit of the paperwork but that's not what the case we have here and that's not slow siri was instructed to pretty close i think it's different your honor because if we if you find that there is either did your instructions were correct or there's extraterritorial application then i weapons manufacturer in the philippines or anywhere in the world could be prosecuted if they manufacture weapons sell him to undercover agent or sell him to someone else and that person then they have reason to know that the weapons may come tonight states they could be prosecuted thank you ron as i may please the corner john pelan terri from the department of justice on behalf of the united states i think there were three separate issues discussed this morning and i think that they were a little bit intertwined so i think it's helpful to address them separately there is the sufficiency of the evidence there are the jury instructions and then there's the extraterritorial effect of the statute we're going to address them in reverse order yes your honor now r first component is a matter of statutory interpretation did congress intend this statute to have extraterritorial effect and there's a presumption against extraterritorial a fact that has to be overcome in the context of the language or the context of the statute second if the court comes to the conclusion that congress did not intend the statute have extraterritorial with that the second component is well then you can still to the congress's focus in the statute to determine whether the application in this case was domestic and what you do is you look to congress is focused in the statute and ask was congress is focused on a domestic component of or something that occurred in the united states and we believe we prevail under either of these two analyses first the statutory interpretation permitted to consider that quote unquote territorial principle of international law recognized by our circuit that the united states may assert surest fiction when acts performed outside of its borders have detrimental effect just a general presumption that congress does not intend it generally does not intend statutes to have extraterritorial effect and that's what was discussed in our g r nabisco and morrison and then a second can is that we presume congress does not legislate in a manner that would violate international law and so those are kind of two canons that inform the question of congress's intent here both canons  or every statute has to be assessed on its own based on the language and the context i think it's likely in most cases that importation statutes will have extraterritorial effect based on congress's intent but i can't say categorically that every importation you because it will depend on the circumstances the larger statutory context and here you have the context is congress focusing on the flow of weapons into the united states and so when you have that context and if you look at we've cited the various other types of smuggling statute and importation statutes in our view that establishes congress intent that this statute applies extraterritorial but if you want to be even the second part of the r g r nabisco in our view this is a domestic application of the importation statute even though there's a portion of the conduct occurred extraterritorial because if you look at congress focus it's the flow of weapons into the united states that's conduct that's activity that occurs in the united states so that's congress's focus and the focus is domestic activity so even if you were to look at it through the prism of the second prong of the r g r nabisco rather than whether the statutory language in context overcomes the presumption and our view we prevail under either or what about your opponent's argument that the crime really hasn't matured until the moment the goods get into the united states that's the locus of the of the crime yes absolutely  honor and that's a domestic locus it's in importation is is firearms coming into the united states which is activity that occurs in the united states and is congress's focus regardless of whether other conduct other activity involved in the in the importation into the united states occurred outside the united states and that's the second question in the argentina biscoe or morris in inquiry the locus the focus of congress in acting the statute and we agree the focus is on weapons coming into the united states how do you get that into texas extraterritoriality excuse me on how do you get extraterritoriality over a domestic focus well focused and that means that the applicant and if caught statute has a domestic focus even though other activity in that's related to an involved in this criminal conduct occurred outside the united states it is a domestic application under in the second prong that's what so you look at congress's focus you ask is it domestic and then you and then you determine that and that the and then you under that inquiry if the congress is focus is domestic and the statutory then the application of the statute in the case is not an improper extraterritorial application and we don't want these type of weapons and the united states yes now but councils are telling us all of the activities and following his client took place in the philippines they started to mystic focus was not all of their activity they they sent they sent weapons into the united states they imported weapons into the united states most of their activity now they never step foot in the united states but congress is focus is on the importation of the weapons into the united states and importation doesn't only and this goes to the sufficiency question doesn't only embrace actually personally carrying in a weapon into the united states it's the at tiv involved in sending those weapons into united states so well let's say that well let's take the agent had sad i want to buy all this stuff don't worry about anything else just give him to me and i'll get him out is that just all case they would still be knowingly importing them into the united states because they're there they know well i guess what your honor is is omitting from that is the idea that they have a stake in them getting into the united states yet they just want to sell and have that drug dealer there and the drug dealers are going to worry about getting them home you know they want to get their money when i mean isn't that factual predicate a little bit different than the one we have here because they have you know they say well i haven't i've got a dirty customs person that can do this that and the other yes agent doesn't say hey just sell them to me don't worry about anything else i'll take care of that well i think you have to get into the the the the the requirements for each statute one is knowing importation and the other is willful importation and then the question of whether that kind of conduct is in compassed within the notion of importation who or whether that you would have to go through to be for causing importation now if there is so if it if the agent didn't say anything just said hey i want to buy these weapons then clearly that it's just but if the if the agent said i want to buy these weapons and the defense had no knowledge about whether going correct and then the agent later just sent them to the united states without the knowledge of the seller's correct there's no knowledge it's not knowing importation that my next hypothetical wasn't quite as strong as the facts in this case right i mean you know that i i think that's what counsel for the opponents sort of arguing the slipper release slippery slope at what point if they just want to make money and they just want to sell weapons and they don't they don't really want to be an importer they don't care you know well the fact that someone says i'm going to take them back there does that make them an importer them if they have no stake in the successful importation into the united states that would be a much closer case but here they knew intended wanted and had the purpose of those weapons getting into units i agree that to that that is a different case but then when i asked if the agent said you know this is who i said that had said i'm i'm i'm working for the cartel and i'm going to you know i need weapons for my my businesses in the united states or whatever just get i don't just give t me you don't need to worry about anything else but then you just told me when i said that said all well well they know they're going to be imported so they're still they're importing i think in that case that they would not fall under importation without a causation under to be but we do believe they would be liable under to be because they would have cause willfully cause the importation because they would have known and wanted the weapons to go into united states still because certainly they just they just happened to know it but they don't care where they go well i think that if if there was evidence that they were totally indifferent to these weapons getting into united states then there would be a closer question as to whether there was willful conduct there now i don't know but again just to make clear i'd like to just go back to the facts in this case which are far different here you had defense i know you know but then appellants counsel of course raise the parade of horribles and that's appropriate in this case and then you stepped right into it and said oh well gal anyone that sells and of the united states we've got her hug senate well i think that when you when you and then you're the parade of horribles on the other side while the sufficiency of the evidence doesn't pertain or depend on any prate of horribles the question is whether the evidence in this case was factual a full factual development of all of the conduct that goes to their mindset their mens rea their actus reus with out of all of that context it's hard to determine whether in any given case a defendant will have violated to the implications that you or of cause an unlawful importation and i think that in your hypothetical it would depend a little bit on the nuances of the facts in that case as to the mens rea and the actual conduct backing up a little but the let me ask you this do we need to apply the agency provision eighteen u s c section two be an order to affirm the appellant's conviction or are you suggesting that it's an alternative  were suggesting that the defendants both imported and caused the importation in our view importation is not limited to just personally carrying a weapon into the united states you need that to be conviction no we don't believe we do because importation doesn't isn't is not limited to just personally carrying it or bringing it in it extends to being part of a venture that sends their weapons into the united states  how can we say standing as they were in the philippines whatever they did in the philippines was importing into the united states they were part of a venture that the being partners together along with reverence of the customs agent and the undercover agent to collectively send those weapons into the united states and that qualifies that's where you need to be because they're causing well they're not doing  the active importation they are working with others to cause whenever someone imports something there's always typically someone else who actually transports a third party conveyor that transports the actual goods so for example if someone builds guns or build any kind of good in a foreign country for the purpose of sending them into the united states and then uses a third party to actually convey them and carry them and bring them that that manufacturer in our view imports those goods into the united states even though that manufacture does not personally carry them in and uses a third party transporter and in our view looked at cases that have also evaluated the term import and said it's not it's it's importing and playing a central role in the transportation of the goods and we agree that there's you can you could look at that through the prism of importation as the substantive offense or you could look at it through to be and the court can affirm on either grounds but to back up and look at two big there's a strong basis for arguing that in this case the defendant caused the importation of the firearms into the united states under to be someone causes by engaging in conduct that was the but for cause of the criminal act of the actus reus of the substance of offense here importation the defendants here purchased obtained and provided the weapons to the to the undercover agent for sending to the united states that satisfies the ac to be of causing and then the conduct has to be willful which means in this court's decision in berlin purposeful meaning they have to share the purpose of transporting those importing those weapons into the united states and here the evidence  they had a strong purpose for getting those weapons in the united states they knew from the get go that agent role was holding himself out as a broker who is who is located in the united states and who work for the mexican mafia which is a united states organization and then the mexican cartel a mexican drug cartel the mexican mafia is a i believe a gang that's located in california and he a prison gang and he was part and he he told them that he wanted these guns and to transport the united states he told them long beach there's e mails there's government exhibit seventy eight which is a an e mail from agents to you by all those saying it's very important that we get these goods we get them out through customs are going to be sent to long beach we're going to make a lot of money so there is the profit motive this was the defendants here envisioned the start of a show of a of a relationship of a business relationship of a profitable business relationship they had a strong stake they wanted those weapons to get cause the importation there is a but for cause and that they acted willfully that they share that purpose they share the purpose of importing those weapons into the united states just briefly to touch upon the jury instructions the jury instructions accurately convey language and that was appropriate here and with regard to the actus reus of causing importation being the but for cause that is exactly what the dream structures conveyed the standard that was conveyed and the defendant argued below that there should be something higher than before causation which is directing the agent and the disregard to not give those and i believe that they agree that the correct standard is but for causation have to find any intent on the part of the defendant no the district court instructed the jury first of all it instructed the jury of the such substantive requirements for a one twenty two  requirement in twenty seven seventy eight b so gave those instructions and then when it instructed under the causing standard under to be it said that the defendants had to willfully cause conduct that would have qualified as an importation offense had been committed by the defendants and if that's the case then they are liable as a principal so the instruction included the willfulness component  conduct which is in some cases the intent and purpose of purposeful have been had similar meanings if you are to the model penal code when they speak of purposeful that means you have to have the purpose the intent of of a certain object meaning in error standard and even if it's not a plane error standard your honor still you get back to the question in order to have i still would submit the statutes do not have an extra territorial effect respond to your opponent's argument what were did he go wrong go wrong he's wrong to the extent that he's saying that under our g r nabisco that somehow that there is extra territorial effect that can be implied through the mare operation of the statute i think if you read our jr nabisco carefully and i've submitted a rule twenty eight j response i filed it yesterday i'd ask the court to read it and i think we respond to his arguments on r g r nabisco i think it's very clear from more stand there has to be congressional intent that the statute extraterritorial effect and what we're saying is your honour's that if you look at this statute does it could be applied to defendants if they willfully cause in and basically i would ask the court to read the government's closing argument that dovetails with the missing structures by the court because what the government argued in closing is and this is a quote it's and the record pages eight ninety seven eight ninety eight this is what the prosecutor argued in closing quote it's for those crimes where people come together where everybody does a little part of it that's what being an aider and abettor means and that's what ninety eight she went back to that again why isn't she arguing willfully cause you can't even the bat an innocent agent the government's trying to write willful cause out of the jury instructions and which is also necessary for  extraterritorial factum what the government final point quote eight ninety eight of the record each played an important indispensable role in the crime no weapons no shipment no weapons dealer no weapons no shipment no getting them out of the philippines getting caught by customs in the philippines no getting them to the united states so she equated the bennetts conic with the philippines with guilt which dovetails with the court's jury instructions and therefore your honors the counts two through five