good morning your honour's says i'm all for ryan canfield the first issue i would like to address is the courts the district courts refusal to give a venue instruction it was requested and it was explicitly denied and the exception was noted and there was more than was actually requested i mean the was you know there was a pretrial motion i'm venue there were rule twenty nine arguments about venue the implication is i read it was that the court denied a request for an instruction and instead said that would be covered in the jury verdict and that means what was subsequently done which is to mention implicit out a minimum implicitly request that and and i yes your honor and i don't i know it's the jury asked to decide instruction that the jury would have to find then you know by a preponderance of the evidence there was nothing like that here in town or no there was no and no instruction and as i said the judge said  denied and then having said it will be covered in the jury verdict form the northern district of new york was mentioned in connection with count one and then there was no reference to the northern district in new not it was argued in the rule twenty nine motion at the end of the government's case by defense counsel and that he specifically said conspiracy with respect to count one that conspiracy is the same conspiracy charged in counts two through nine so a venue had been insufficient for cow one it would also be insufficient for count two through nine so it was a material difference that he asked only for rule twenty in making a rule twenty nine motion for dismissal on the conspiracy count but say that we agree with you the they were based on texts that solely had to do with where and when the corner of this at what time nothing about what would be discussed when she got there and i'm talking about domino who was the government's agent there was also a undercover agent who accompanied her she had taxed canfield a number of times a while a while earlier there were two there were two cajuns when they planned to meet she did text him before the first several times he ignored it they planned to meet in those conversations there were more than just where and when i think there was a mention of money that she owed him and wanted to give him that was called off  fell through she called it off months two months go by he also ignores texts from her and i think also phone calls and finally responds and they that's when these sufficiency a venue as it was presented to the jury it's never held in the contest so many of those cases that it didn't need to go to the jury so it would be new law if this disputed when she engaged in these texas well it was disputed in the sense that there was no evidence from the text themselves that she was in the northern district of new york well there was testimony there was no evidence that these texts were used of a communications facility in furtherance of a conspiracy or a distribution there certainly was no venue for a distribution in the northern district of new york which occurred subsequently without any planning our conversations planning it during the tax and distribution is a single act offense that occurred solely in connecticut and your hours i see that my time is up and if there's any other questions i'd be car please the court judge for the united states mr canfield has raised numerous claims on appeal at the outset it bears emphasis that many of those claims were never raised below and and either should be found or been waived or at the very least must be reviewed for plain error rather than spending my time repeating those waiver arguments for each claim i didn't intend if that was the court's indulgence to focus on the merits of those claims pointed out noted that the conspiracy was located in the northern district of new york or that it touched the northern district of new york the phone counts at the court ever make a finding that there is  because my understanding is that there might have been either an objection or a request but there was no the jury was never asked to find venue there's no finding and you it's gin mentioned so we fact that she was there now if foreseeability is a question as well i think there's ample evidence also that mr cantor would have known with a high likelihood that he was was in albany at the time she and him had a longstanding relationship he had projected the conspiracy into the northern district of new york by asking her to pick up packages also and a couple points and the references are supplemental appendix three ninety six and three ninety eight let him know that she was texting from home and for those reasons i think that just our whole conversation and i think for the reasons we explained that is that cannot be the unit of prosecution and it's not unreasonable to think that when you're using a tax a tax device it's very much like  a telegraph which is not included in the statute if people are having a conversation through a telegraph machine i think there is no doubt that each use of the telegraph each use of the transmission facility  use and that was the theory of the government went with i think it's it's a reasonable why that's all you know back and forth in the course of one conversation if it were a telephone call right you would call it one transmission  right why is the stuffing i mean if you are now you know if it's a series of texts back and forth why why what's the rationale for treating each time you assign as a separate transmission i think because it's an intentionally use of the facility each time when you are there the statute itself says that each separate use of the cylinder is a separate crime it makes that clear now the question is what is a separate use with a phone call the line of communication is clearly open it's continuous neither party has to do anything to keep it open with a text message each time you compose a text you have to hit send that is another use another initiation of the transmission what counts is the use i think the statute would contemplate that it would change depending on the the type of technology involved i don't think that renders the counts two and three three a simply ok right i itself who knows what it means so you have to look at it in context with the ten count it would seem to me would make sense for that to be one one i think in addition it could be charged as one congress indeed you did that with some of the counts you got forty eight months and all the counts ran concurrently so there is no extra punishment for each additional phone count i see my time is about to expire if there is any other questions i be having answer that  deliver proceeds and purchased drugs i submit there's nothing in the history of the texts themselves or in the t that shows that he knew or text first for a period of time during some conversation that they have and don't recall of to text or a facebook conversation he says i think you're up to no good it is what he's doing when he greaser me with her he wants to eyeball her he wants to find out what she's up to and it kaante together because they acted together did not know that the substance was in illegal drug domino had been arrested her boyfriend with the drug she wasn't charged conduct efforts to conceal putting the method in a beer hidden compartment why do that and wasn't the second question the jury entitled to view those efforts to conceal as evidence in support of their mens rea or their knowledge they were certainly evidence that mr canfield no can't be there were certainly evidence of mr canfield i guess it is me to turn it off i sincerely apologize that hasn't happened before there was all of your i know we haven't you're mentioning is evidence that he knew but there was affirmative evidence that they did not know dominant domino and conti and finally there was the government argued a certain conversation between mr chin in china and i believe it was in china and mr canfield we argued in the brief that various conversations were buyer seller conversations not conspiracy conversations i did not address in the brief this particular conversation there were many conversations i didn't address but when the government raised this particular conversation i addressed it in reply it wasn't i submit wave down appeal and it was simply a buyer seller conversation it doesn't show a cum conspiracy between them thank you but you want to go back to venue which is for sure if we agree with the government disagree with you on on the significance of the texts and conclude that indeed the evidence was the she was in the northern district what happens in terms of your venue argument i mean is indeed you have to show prejudice from the failure to put the issue to the jury or order your thoughts on that well prejudice is that the jury could reasonably have concluded that there was no venue she was a government agent we disagree with that said it is an element and an issue of constitutional dimension then regardless of the court's view of the sufficiency of evidence and venue it would be in error for the court not to before the jury and decided by the cherry and we've never held that but you're asking us to hold that now i gather well i your honour's have have looked at cases where i take it back we have all cases that really were one thousand nine hundred four i can remember the case that said if it squarely rains it should be put to the jury that's before the case of saying it's not an element and show it doesn't have to certainly be proven by beyond a reason you know it doesn't have to be proven beyond a reasonable doubt and when i say element i suppose it's more properly termed jurisdictional and if there was no jurisdiction in the northern district