position that at the hearing to determine subject matter jurisdiction that the government failed to prove beyond a reasonable doubt that in fact the government had subject matter jurisdiction was this a reasonable precedent back when the jurisdictional issue was before the jury as an element of the offense in which it relies on is the medina case and it says that the prior president is proof beyond a reasonable doubt to prove subject matter jurisdiction so it's our position that based on that and based on the panel's prior precedent that it's been it's beyond a reasonable doubt for subject managers to action in this particular case all we have is the testimony of petty officer ran and it's interesting that the government chose petty officer ram because petty officer threat wasn't the individual i was in charge of asking the boarding questions also petty officer ram doesn't speak spanish and in fact when he was asked by one of my co counsels in the case whether he had any command of the spanish language his answer was no so in in order for the government to go about proving subject matter jurisdiction they rely on officer the rams interpretations of what officer garcia who was the spanish speaking officer said in officer garcia's interactions with mr binney alim on in the other crewmembers however when you look at the record there is no record as far as what officer garcia's fluency is in spanish other than the fact that he was a spanish speaking officer office at the rams specifically says that he has an idea of what was said based on officer garcia's translation but he does not know exactly what was said and that he was just relying on officer garcia there was a lot going on and it wasn't his responsibility to be involved so we believe based on that that the government failed to prove jurisdiction beyond the reasonable doubt also i have to say it does seem like they ask in your case what is the nationality of this  well they do ask but whether it was correctly asked anish we don't know because we never had the spanish speaking office has the five and we don't as it was just based on hearsay and we don't know how good the spanish speaking officers translation was you know it could have familiar with a lot of th circuit cases reversing a conviction on the ground i'm just asking well you know what i did look at and i was trying to find some cases based on just hearsay because that to me this is based on hearsay in you know a question of whether this was properly translated so i pointed out to the court in my reply brief the garces versus u s attorney general case where the th circuit found that relying just on for miami beach arrest forms you know which is inadmissible hearsay without any corroboration was insufficient to meet the reason to believe standard so if something is insufficient to meet the reason to believe stand there i think that it clearly would meet the proof beyond a reasonable doubt standard  also assuming for purposes of this argument that the court finds that the government prove this beyond a reasonable doubt there was also a due process issue with the respect to actually contesting the subject matter jurisdiction on april th the government files outside of the motion deadline the government files a motion to determine pretrial jurisdiction on april th at one thirty four pm in the afternoon the court sets a hearing for the next day a little over twenty four dollars hours later at two pm on april  and during that hearing i specifically asked the court to continue the hearing to allow me to get lieutenant put koski and officer garcia so i can contest the government subject matter jurisdiction arguments and i pointed out i was introduced during the hearing was defense exhibit number one and it was part of it was an excerpt of an e mail from lieutenant  have a you know time to actually prepare the facts on this particular issue for mr binnie allium on because clearly either a claim of nationality had to be made or no claim of nationality added be made for this vassal and here we had conflicting conflicting evidence and what the government says a bill that is is you lose either way if the if no claim of nationality was was made then had an opportunity to challenge that statement because we're specifically which is the fact that mexico could not confirm or deny the nationality of the vessel and the reason is if you look at the fence exhibit number one it says forms were exchanged with mexico well we certainly didn't receive any forms in discovery so i wanted to challenge you know whether or not mexico actually gave  lieutenant koski the ability to actually go ahead and you know search jurisdiction over the vessel and here i mean at the end of the day we can't just assume would have come in and been credible without putting them to the tasks of cross examination that's why we have an adversarial system in the st place and why we have due process thank you consideration and the st one is you shoot of the minor role and i would argue that the court in this case did not analyze the minor role pursuant to the united states be quick quick shank th circuit a very recent levon circuit court case which basically indicated that the the court the district court should analyze each individual within the whole program of the whole the whole case in other words in this court in this case the district court as i have it is shown in the in the transcripts of the sentencing basically and this case was a little complicated because in both two different boats and what happened was mr bonior mr martinez medina and the captain were on one boat and there was a separate boat with five other individuals those five individuals what happened at trial one of those individuals was actually we believe was well he was a colombian individuals probably the one that was the guard for the drugs testified at the st and subsequently of the nd trial remind me how much time he got three minutes john i mean since the nd boat where an individual by amos elise testified during the trial basically that the whole the whole case on mr bunia mr martinez medina and the captain who was never brought to the united states for trial he was actually transported to mexico city had some some health issues so at that point basically the analysis by the district court should have been between mr medina yeah the captain although he was not very was indicted and the five individuals that subsequently the jury hung on and subsequently went to trial and were found not guilty in the nd trial but the core did not do that the court basically  said that they were all pretty much in the same boat you know we see so to speak sort of we see a lot of appeals of cynicism posed by judge moore and you know consistently he  always says well even if my god lying calculations are wrong i would have imposed the same sentence anyway doesn't that protect the sentence from his standpoint well under our precedent your honor it does he did say that in this case and he actually said it in the other case the other argument i have which is the one for the for the obstruction you know because of the material which short due to be brief that really had should have applied to my however there's four levels here and i think four levels is is quite a bit to just say you know no matter what i would have given the same sentence i think if we went back to re sentencing and we were talking about four different levels i think it would make a difference at that point your client good afternoon i'm going to do my best to tell you when the lighting system how banks you very much your honor we're glad to see you thank you glad to be here good afternoon your honor is may please the court dan matts going to be half of the united credibility choice between two permissible use of the evidence is the very essence of the clearly erroneous standard and that's essentially what the jurisdictional issue in this case boils down to here the district court had the benefit of live testimony pretrial from officer through but then at trial as well from officer garcia whose testimony in all material respects mirrored that of officer threaten so the district court contrary to what my from the other side said did have the benefit of the testimony of the individual who asked the questions who heard well sure there were no responses actually so the responses are actually irrelevant but you asked the questions in spanish who knew what was being asked and what was being said at the time and both of these officers testified to the same thing that the coast guard personnel asked the former occupants of the go fast vessel who the master of time on the high what if my boat had a name on the back like you know liberia and flag of liberia am i correct that i could  stopped you could not be stopped that isn't the situation in this case there are no visible and nationality that you know hypothetical i i don't want to i don't know the answer to that question i don't want to say something so so is this don't know we have a go fast vessel here and we have a vessel that apparently has no nationality markings right that's right and that is how the coast guard that triggers the coast guard's ability to stop this vessel and make it heaved to and make them and permit this vessel to be boarded there's i mean there's also the you know permission before i do that right exactly and you know right exactly and you know the coast guard personnel on the scene describe the you know any you know the actions that the vessel is taking anything it bases anything unusual anything suspicious and that and they go from there exactly the kind of credibility finding that just records make day in day out of this court affirms day in day out and the the one aspect in which this case is different from the usual case as judge martin martin pointed out is even under the defendant's own theory of the evidence your view of the evidence the government still wins because you know to the extent that the claim was made that exactly i'm saying i'm paraphrasing your honor i apologize  see you're right about it ten minutes now just to make things more interesting for you when you go back to the office this afternoon is your case stronger than mr cohen's case and if so why my case is different he's in the sense in the sense that here the coast guard did ask both for the identity of the master and for a claim of nationality for sounds a turning quickly to the continuance issue and i do think there's some overlap between that issue and the jurisdictional one you know i think that the strength of you know the primary factor of that test you know that the extent to which the continuance would benefit the party seeking it really is dispositive here because you know as i just argued even under the defendant's own construction of the evidence the government still wins and with respect to the timeline it actually begins on march st which was fully two weeks before the evidentiary hearing when the government said openly and explicitly in its response to the defend its motion to dismiss that no theoretically helpful and important to the defense the defense could have called them a trial too so really we have a period starting march st where the government filed its response going all the way through really may st when trial actually started which was two and a half weeks after  remind me how this supplemental jurisdictional inquiry was triggered how did it come it came about initially via a one of the defendants moved to dismiss in the other defendants joined in that motion and that motion was filed post wrong i'm sorry it with yeah it was filed the last week of march and before response was filed the district court set a hearing on that motion then on march thirty minutes later roughly a week later and you know as the sentencing issues in this case appear to be foreclosed i'm happy to take any questions but if your honour's have none i will rest on our briefs and ask that your honors affirm in all respects thank you for your presentation if your hon that i better be ready to contest the government subject matter jurisdiction that notice was issued on april th as your honor said minutes before the hearing and i just don't see how the government can lie see how the government sang we win no matter what because they always say that but in any event i don't see how the court can affirm that under due process it and any event i have reason to believe that there was a written exchange between our government and the mexican colombian government about the registration of the vessel i do in defense of the scene can you represent that you've seen that exchange have you seen those documents i haven't seen the documents and that's one of the reasons why the tenet koski should have been you know that i should have been given a continuance to subpoena lieutenant because or the government should have been ordered to produce him because what it says in defense exhibit number one is district the leaven which is the coast guard district exchange forms with government of m x mexico and mexico could not confirm nor deny mexican jurisdiction or nationality for the vessel number one which would of fact that the court's credibility determinations and number two i would have been able to impeach the tenet put caskey on whether or not mexico ever was called by the coast guard after a claim of nationality was made because under that scenario the defense prevails in the whole problem with this is i was never given an opportunity to defend mr binney alley mon and raise that point with the district court because i wasn't given time to actually bring in lieutenant caskey to say where are these forms did you really ever contact mexico and challenge his credibility so the ma could have made a credibility that terminations and that's what due process is all about a meaningful opportunity to be heard and i wasn't given a meaningful opportunity to be heard and i completely differ with the government that they win either way i think i could have