to the court of the that the government had to rely upon the dreaded it's in order to make the conviction against oral comes in sand and the gravitas we submit to the court in this case was number one was highly prejudicial the primary witness there would have been no way for the government to even got the case to the jury so there was no way for the defendant at trial three bucks evidence this was this is evidence that the shipments were twenty five and then you had this overwhelming amount of of for be evidence that comes into the case that combination of those two clearly suggests that it should not have been allowed to come in that this is a person was never in any way connected to testify about coded language and they put very specific testimony about coded language that there was there was no foundation for them to be testifying because they were later witnesses they weren't noticed as expert thing that in that have the opportunity to challenge that has money to bring in another expert to provide a counter view of what these people sec and this court has made it clear in williams that if you're testifying about something that is not from clearly expressed congressional intent u s laws don't apply overseas the principle going to come from both of those cases is that when a statute provides for some extra territorial application the presumption against extraterritor nine five nine b offenses into two separate categories one five nine b one is manufacturing or distribution of a controlled substance and b two is possessing a controlled substance with intent to distribute  because those are not actually and b are they meant to you does the word acts of it stand manufacture distribute or do they near all or do they really not do any work i don't think they question either harmless or plain review what about the proposition the syrian government position is not after territorial  to task for not objecting to a specific jury instruction but i don't think it was necessary in this case but even so harmless or question right even if you're  right i think if the government could show that the case was overwhelming i think is it which i don't think the line is one should think that's true in this case i mean what about the evidence goes specifically to possession as opposed to distribution of drugs like were issue at issue here would that be a sufficient over act to support a conspiracy for distribution of visitation will argument that with him out here was large enough to support distribution good morning your honour's image please the court michael rucker from the terms of justice on behalf of the united states let me pick up with the extraterritorial arguments and then i'll turn to the injury issues at the back end in this case judge jackson conducted a thorough correctly in our view that the presumption against extraterritoriality terror territoriality have been rebutted for both statutes and we think those who lose are both correct let me start with the nine fifty nine of the judge children your honor was asking about even the fact that the second that circuits have both found that provision to be extraterritorial and we think their reasoning is fundamentally sound if you just look at the actual text of the statute leaves you in that conclusion there are numerous indicators of an extraterritorial intent judge millette you are asking about the words act acts of in our view that broadens in response to your question that runs the bases because although the explicit extraterritoriality causes acts of manufacture or distribution by no well unless the statute uses the magic word possession then it doesn't apply actual territory but the supreme court has told us in our jr and five other circuits that have considered usual which are all cited in her brief have made clear this is not a clear statement test they don't have to be like you did something of the sort of surprising for the justice department very you didn't mention the second part portion of the new statute which provides that you can be tried in a district to distribute is solely domestic conduct right would it be reasonable for congress to say that it has to be like you tried the venue for that will be the district of columbia even if someone's down in texas arizona i'm you prosecute in the district of columbia no that's not it's not it's also there's also what you're saying is unconstitutional no i'm not saying it's unconstitutional i'm just saying that there's another bill should be read in a different way that avoids any of those concerns but i think i mean congress  to the district of columbia that's a domestic crime committed in alaska away i'm sorry why would congress have i don't i don't know that wouldn't make a whole lot of sense but what i would say your honor is that we probably will resort you've got to do ninety two was really domestic i don't think the government will resort to that s nexus language in ninety nine b s prefatory clause which applies to be one and b to write it specifically requires either citizenship really use of the u s registered aircraft and as the second circuit pointed out in abscam it's awfully difficult to understand what as i certainly agree your honor that for the reasons you eloquently identified this would be harmless error i think all of the evidence went to distribution and i think if the jury has been properly instructed on the two objects and if the if the supposedly invalid object had not been submitted the result here would be instructions excuses a defendant from reason a new objection just because they made a pretrial motion but i think the more practical point you should garland is this if the defense had raised their objection and apprised the court and the government or they were continuing to maintain that position doesn't apply actually territorially it might alert the parties mcchord that this may be a situation where one has a special verdict and that couldn't something that we could discuss instead of the general verdict that led us into this new type situation so i it's not structural error but skilling was a harmless error case i'm talking about planar and whether or not they had to object to the jury instructions so it's there's no i don't think there's any dispute among the parties or i take it from the courts questions that prejudice are you applies the only question issue but i would say again we can preach amid all these issues and simply decide this case on the harms that are around because look the government's case at trial here was bill around five cooperating witnesses all who testified about the inner workings of this conspiracy about mr thompson's role on his own conversations and if you look at the record judge jackson with these issues serviced judge jackson sort of allowed with this is to testify heard the basis for the proffer and she made a finding that they were testifying be some firsthand knowledge she did also it struck a jury that if they found that this wasn't firearm yes so you you don't think it's like that well i mean on one hand you have that many cases then you also have the old feel the case which i think was assault on a federal officer and you do have to prove that the defendant knew that the individual who he assaulted was in fact it was a wish line is more appropriate i the constitutionality of reaching those people and you know interstate commerce case as the defendant have to know and traveled interstate commerce for example or anything like that i don't believe so but in this case again we're not we were are the basis for the jurisdiction will be the u s who here was the u s richard aircraft there was plenty of evidence that the defense specifically knew that they were just seeking any old aircraft that they wanted the ones that were rigged up maybe i'm knowledge has knowledge of being x or y the fact that they met twenty five years ago is not a state of being so that they had knowledge of each other  and if the government allows you said evidence and the only way to rebut it is for the for the defendant take the stand i would submit that burden shifting and so the that it should be able to rebut and challenge as evidence without having to specific then charge for these this specific event alleged whether it's four four b or did you want to get into that specific offense to show that this person did not commit that is that simply basing it on a credit o territorial unless there's some other factor i don't know that i would take a risk respect we disagree with i think i'll leave the who was in the humility and i realize they also look at the chart that's the issue