non sentencing issues because of likely but i believe that lately does have an issue before this court as even the nonsense in issues and the two issues that we do have to  but i don't think that that changes the authority here in the ninth circuit that you need that nexus i believe it is a due process pure fifth amendment due process argument regardless of whether it's a commerce contacts our argument effect on interstate or foreign commerce here jurisdiction is conferred when the foreign government says you have our permission to go aboard and apply your law ship that's a statutory jurisdiction what i'm referring to is a constitutional jurisdiction that this circuit has found to be requiring a nexus that it is coming to the united states or it's going to have an effect on in this case the same analogy to congress can just write out something that is constitutionally mandated that violates the constitution otherwise they if you took it to the extreme they could just say and punish piracies and other felonies on the high seas right and they're still going to even though it's not a commerce analysis if you go with a piracy analysis it's still is an issue that goes to blanche to the congress to pass whatever they'd like in that regard i would have to agree to that that extreme example however i believe the constitution still overlays even though they're relying on the piracy power  rather than commerce power and so in that case what the court is that is not presently and then reaffirmed in blakely is that these and in fact i mean also saying that these elements of the offense have to go to the to the jury but didn't issue that's required on this and it's an important issue because even for public policy when i mention this case that they were seen as five hundred miles off acapulco everybody says to me why well and so it is a public policy reason i think it's a very important circuit decision here despite a disagreement with other circuits and and if we're going to happen type of jurisdictional requirement then this is certainly the type of case factually that failed the next task i mean you had an all russian crew you had expert testimony that said that it could very easily and probably were going to vladivostok because they could get more money for the drugs you have the crew you had t fuel you had all the bases navigational equipment to be able to do it so if that nexus means something then it is important that this case factually falls within that briefly as to the suppression of the statement i will make one point on that that that is in my brief but i think it's the most important point i understand the contours of the cases about the  we're in a modern age now where i don't think there's any excuse for them not getting a probable cause determination by detached magistrate from a chef because they have plenty of communications devices but what they did was bring this defendant back to port and your honor may please the court my name is david wiener i'm appearing on behalf of the united states of america your honor there are three issues in this case first whether the district court properly determine that the government adequately established the existence  a is an issue for the district courts to determine before trial and need not be submitted to the jury for determination of proof beyond a reasonable doubt in fact as recently as two thousand and three in the united states where she's been in reality this court once again we affirm that principle legislature was essentially transferring elements of the criminal code and placing it into the sentencing system that's not what you have with respect to the next issue indeed there's references to whether or not congress can simply write out of the blakely your honor with respect to the validity of nine hundred three f and what impact that has here i think a couple points or are important to keep in mind first is that when this court initially decided how to treat the next requirement incl anything that congress said but he did so applying clear and consistent supreme court precedent in particular the cases united states versus gathering and united states versus wells moreover your honor just recently in two thousand and two the eleventh circuit in the united states versus there was a gallon challenge brought to the prosecution with respect to the impact of ninety three and the eleventh circuit specifically rejected that challenge and i think its language is quite useful because what the court of appeal said in that case is that the mere fact factual issues have to be determined by the jury is not talismanic with respect to whether or not congress can specify that that particular fact is not an element of the offense and i think that applies even more so here where congress did not truth to the district courts determination that the government carried its factual burden of demonstrating by a preponderance of an end of the evidence that the offense conduct in the particular case was likely to have the facts in the united states  practical question right that's correct your honor that's how this is that's how this court has repeatedly treated the nexus determination so for example in the united states versus measure the district court held extensive hearings to determine where the code where i think it was how she was headed in that case that was brought from pakistan in a very complex conspiracy and the district court found that although the drugs were not directly destined for the united nexus had been established because largely because of the geographical nature of the drug trade and in particular the district court found that those drugs would would be likely to have the facts in the united states moreover to be proven through time which guilt has no actually you're on i sort of disagree with that characterization of the next requirement and i think that's something that sort of distinguishes it from the nexus requirement that exists for example in the hobbs act under the  seas that's and causing harm in the united states and that's exactly what congress did under the n d l yang and for that reason your honor that's why we think that the next requirement in this context is once distinguishable from the next requirement that exists under statutes like the hobbs act or with respect to to banks federal prosecution for bankruptcy your honor your honor i want to turn quickly to the motion to suppress and there are two issues with respect to the motion to suppress one is the fourth amendment argument brought under county of riverside and the second is the argument brought under federal rule of criminal procedure five say whether or not the defendant received an initial appearance in front of a federal magistrate without unnecessary delay as we explained in our that it was somehow in permissible for the government to question mr sakharov upon arrival in sr to go and there was something on ford perhaps about the fact that the coast guard did not question any of the crew members of the on board the coast guard cutter active i think it's very important to keep in mind your honour's the structure of the coast guard and how it operates on the high seas although the coast guard is operating in sort of a law enforcement capacity when it's doing these sorts never to interrogate any suspects that are brought on board ships to ensure that those individuals constitutional rights are violated now in this case your honor as the district court determined the fourth amendment with was  existed in view gorky as itself and supreme court did not seem to be especially troubled by it by that disjunction and i think the same thing applies exactly here your honor the fact is that for the reasons stated by the supreme court and who do the work he does when the defendant was brought to see in the a girl and presumably the riverside clock would have kicked in at that time it's important to keep in mind that the defendant before being questioned received his miranda rights he h knowing intelligent and as the district court determined and indeed that determination is adequately supported by the record moreover your honor i think that the manner in which he was questioned fully comports with this court's decisions regarding the fourth amendment rights accorded nationals and whether and under what circumstances they can waive their rights so for these reasons your honor the government would submit that the district court promptly resolved all three of the issues presently on appeal and the conviction ought to be affirm last point first there is no of no exception the riverside rule that says when you land brought here by law enforcement on u s soil that the forty eight hours begin to run he was five days held before there was that any evidence and then hour rule i understand yes and two issues as to that one is that they had totally available means to be able to communicate to get a probable cause determination and the second thing is that bothers me the most i believe is that when they did lan but these were clearly erroneous if you look at the difference in the experts if you look at the facts that were put out and in fact this was the same government expert that testified in the kind of easy as case saying opinion that she ha given in every single case that came down where the da has the complete control over this expertise we were able to have an ascii testify and to contradict this expert based on even broader information but if you are wrong in your blakeley argument then the district court could sit as the finder of fact as it does at the suppression and make an adverse