venue is that they are primarily relying on the nd circuit's decision and continue no and a few other out of certain cases that rely on kids you know all those cases involved defend arrested in the united states and could see no itself makes very clear that there are two different rules if a defendant is arrested outside of the united states and brought into the united states clear that for those defendants who are brought into the united states while in custody the site where they are st broad determines the site of arrest for venue purposes and when is it court mr coleman yeah argument is that a pretrial motion should have been filed in this case the rule in this circuit is that a pretrial motion only needs to be filed when the venue defect is clear clear from the face of the indictment in this case the defense filed free trial a motion for bill of particulars asking for the connection of the offense to the central district of california the government opposed the motion said nothing about th district that's where venue is the st time the government mentioned three thousand two hundred and thirty eight was shortly before the trial after the motions deadline so the defense could not file a pretrial motion and the government asked for the court to take regarding venue and for the st time cited three thousand two hundred and thirty eight the defense immediately objected so we are disputing venue the government they then jury instructions were submitted venue was hotly disputed the government realize time that the defense had waived the argument this is exactly what the defendant did in the recent marang garcia case that this court recently decided back a few months ago he filed a thirty file the rule twenty nine motion it's not made a time motion the argument is thoroughly preserved that the count now three didn't stand you know that it happened in california why wasn't that clear to counsel that there might be any other united states court but they get the indictment wasn't clear when there's a conspiracy charge the the government typically proceeds based on the fact that an overt act occurs in the district judicial notice we're disputing venue in the government knew that venue was going to be just viewed all along i think really the point is that the government not be sandbagged and they clearly were not sam about they knew that venue was hotly disputed there was during structure's going back and forth were with vigorous debate about what the appropriate jury instructions should be but then you say anything specific about your objections in the context of the jury instructions that is as i understand it you have at least instructions and this is another thing about the lack of notice the government was changing the jury instructions constantly and in the defense said objected on numerous grounds both in writing and orally at the rule thirty conference to the government's venue instructions saying that they were creating this broad sort of rule that were ever a defendant can be detained is as an off and then the government actually after the rule thirty conference all the objections have been ruled on again language they just said whether wherever you were detained in connection with the offense so in this was hotly disputed it was objected to repeatedly there's just no waiver here you know this is frankly one of the more thoroughly preserved venue claims of obscene you know both a very specific rule twenty nine motion objecting before trial on the basis to the government's judicial notice request jury instructions objected to both in writing and orally at the will thirty counsel in terms of what you would like to get if you got there for your greet with your general argument here what was the result be they would simply retry him back in what the eastern district of new york you know i do think that's an important question and i want to preface my answer by saying i want to court i think the courts well aware if this count reversed mr gone pled guilty accepted responsibility to several counts he's not going to walk out of prison he still looking at many years in custody on the other counts if the government decides that they want to go forward again on this particular count then yes i believe the proper venue is in the eastern district of new york now under this court's precedent there is no double jeopardy bar they do to the relief is that the count is dismissed and then they can retry in the appropriate for might my suggestion is that the court should not comment on whether the dismissal is with or without prejudice because that should be up to the eastern district of new york and the nd circuit under their rules because that's where the case would go back to so the relief would be dismissal of the counts and then if the government elects to retry the count again he can get a the at the heart of the jurisdictional claim is really this background constitutional question which i think is a very important and debatable constitutional question which is whether a congress can enact an offense that really has no commercial connection to the united states but the and the sole basis for extraterritorial jurisdiction is that a united states citizen was involved but i do think the court can avoid that question by construing the statute in two ways so i am going to says that it applies to conduct prohibited in subsection eg now here we have a conspiracy offense and the conspiracy offense is located in subsection c so our st position is that the court can construe the statute that only applies extra territorially to the substantive offenses that are contained in subsection essay and that is in accordance with the general principles of that the supreme court has established that you interpret extra territorial provisions narrow pretty familiar were it not king's i have seen the office or a case i haven't looked at in the while my my recollection is that there was there was a jurisdictional contention in that case but it wasn't based on the argument that i'm making which focuses on and i could be wrong about that your honor because i don't think that was cited by the government but my my my contention is based on that st introduction really introductory clause to subsection b and i don't think that dot was the argument that was here we have a subsection c kids it's a conspiracy q it's so that the plain language of the statute does not apply extra territorially to conspiracies and and one of the things i'm confident the nd circuit get an address and the government didn't conduct prohibited by subsection a applies actually territorial they did something very different in this statute they put the conspiracy in subsection c and when congress does something like that i think the court is supposed to construe that as an intentional i think it's somewhat similar to an argument that i saw that this panel addressed earlier in the week earlier in the week the government i think was arguing to your honor's that you can you should construe in and as an or  this case this statute lists five different subsection b the jury the extraterritorial jurisdiction provision lists five separate subcarrier graphs the last one between paragraphs four and five is connected by and or however there is nothing that connects the other subcarrier grabs and there's no conjunction in because of the significant constitutional question that's raised here it's our position that the court should construe the st subsection which requires that the offense occur in or affect interstate or foreign commerce that that should be a required element of all the extra territorial provisions so  motion to dismiss for lack of jurisdiction it's it's are was it just because you base it on his extraterritorial conspiracy are they did not use the statutory construction argument that i am arguing but they did argue that there was no of the plane or a test the government concedes they don't even argue those so you're talking about whether there was error and whether it was plain and or organise are based on the plain statutory text i mean when you look at that conduct prohibited by subsection a that's question the the defense filed a pretrial motion to dismiss for lack of jurisdiction they said that jurisdiction in this case was unconstitutional did they did they argue that the specifics of a foreign commerce clause  should not be interpreted so broadly so as to simply apply to any u s citizen who commits a crime abroad i don't know that those that that issue was fully briefed but i do think that the pretrial motion to dismiss was sufficient to clause is that there is no case that the government has cited that has held that the simple fact that a u s citizen commits a crime abroad that that means that in a fancy occurs is sufficiently connected to the foreign commerce clause to  allow extraterritorial jurisdiction no cases ever said that the the provision in the constitution itself says it requires commerce with a foreign nation there was no commerce with a foreign nation here that was good morning hours may it please the court alexander robbins on behalf of the united states i suppose most court once in a start somewhere else i'll pick up where my colleague mr coleman left off on this exit territoriality issue and i want to say at the outset that it's not just an academic or a cosmetic issue i think his use of the incorrect to label jurisdiction throughout his argument is the basis for among other things his claim that plain er doesn't apply to this because he raised a jurisdictional argument before trial and that's just that's legally a mistake the supreme court has made clear and we cited in our brief in the morrison vs australia bank case that the question of exit territoriality is a merits question a question of ex territoriality is going statute prohibit something does that prohibit apply only in the united states or does it apply outside of the united states it also goes to said this doesn't apply to a member of the u s military or anyone who possesses or uses an anti aircraft missile as part of their duties with the us government that would restrict the scope that you it would be nonsensical to claim that that sort of restriction in the statute would apply to subsume of violations but not conspiracies or attempts or aiding abetting that's simply not a reasonable reading of the statute and my colleague is also mistaken when he says statutory scheme that places subs no violations in the same place the statute as conspiracies in the same places that you as attempts and in this case all of those things are in subsection c and this is the is just a command from congress the crime is defined in subsection c and it includes subs no violations right next to conspiracies it would be entirely unreasonable and contrary to the statutory structure to read the thatch of the way of my colleague wants to read it the somehow exclude conspiracies plus contrary to the default rule in fact the territoriality questions which we cited this court case in hon moul that which was a was a drug case an eight  position as we had in the and or case that you have that you are one of the two of you referred to well sometimes congress writes silly stuff ok we'll take that let me ask you if i can take you a you have this guy and custody in athens you landed him in new york you landed for whatever reason isn't it true that under your argument at that point you could have gotten a flight to boise or a little rock or louisville and then indicted him on chalte three in one of those places and tried him there is there any technical showstopper or are you just saying well we wouldn't do that and he hasn't been charged with the missile count then and we're at the we're back in the same place the st brought provision doesn't come into play because he's not being st brought in custody in connection with any offense is a separate group of offenses so i think that's one distinction if you're if your underlying concern is the concern that the district court in d c had in the vote case that this allows the government to essentially choose choose its venue my response to that would be to some extent it does but so does the st brought provision which my colleague appears to except the i think as a as a matter of just background the entire reason  having this discussion that we have thirty to thirty eight is we're not dealing with where the crime was committed but the principle of venue that's in article three section two of the constitution is about and in the declaration of independence for that matter is about trying people other than where the crime was committed what we have here is that the fault rule when we don't have anywhere to try the person because there is no district agrees where we supposed to have this trial the extent of their concerns about people coming in in commercial in a usual kind of way and the government doesn't usually forum shop in advance your principle allows you forum shopping largely mutually exclusive and i just to take a step back this is a statute that has existed in more or less the same form sense seven hundred and ninety s so we're talking about you know before air travel someone's captured on the high seas what do you do with that person w you have venue where in the port presumably where the persons st brought or the person shows up not in custody and then we catch them right so instead of catching the pirate in the high seas because the pirate wandering around   part of the basis that that he was allegedly at least at liberty until he got to the district where the government didn't arrest him but here you know you had him in custody and you're a pirate you're granted the government a complete showstopper but it at least has a it has the same language that the constitution has about a district which shall have been determined in advance it isn't exactly the same but it puts some constraint on the government doesn't i think you're i don't want to point actually that's the your runners referring to the th amendment which is the vicinity requirement for jurors which technically has a different carbon have two or the jurors come from i think if i'm not mistaken but in in all events the background assumption here is that the person is in custody so under the st proper vision by definition of persons in custody under the arrested for vision the person becomes in custody and so in all of bands the government has custody over this person i don't think that the two provisions need to be interpreted differently because of any background concern about forum shopping given that in both cases the person is in custody decision but in all of then it's a claim that you should be prosecuted somewhere else is something that should be raised before your trial starts and my colleague when he was up here said that he thinks that the venue issue was raised before trial maybe seven to ten days before trial in fact it was seventeen days before a trial was on october th and the trial started on october th but in all of bans even if it was after the court's discretionary motions deadline it was before trial and kno what temp was made to move this case to the eastern district of new york in fact it wasn't even clear that the fence theory was he should be tried in these new six new york until the post trial motion and that's why the district court found with all the argument objects to that and says the government's asking the court to take additional notice to alleviate their burden to prove venue in this case so the statutory language and the defense knowledge that this is a venue issue occurred in early october about a month not quite a month for trial this was this was not something that and this is something that came up pretrial and again if the defendant wanted to be tried somewhere else that was his opportunity to say so well this is you are required to object why this is not a not a normal venue case the way this proceeding was argued the district court found during the trial and i think this is an unusual that just a court found and this is that you are forty nine that the defense was attempting to mislead the jury planning to argue that then you should have been in greece so i think what the defense did here was was sort of stay as non committal nature of venue as possible although realizing it was an issue never mention of new york until after trial and then at the end of the trial when crafting the jury instructions reveal that they are going to try to argue that venue couldn't be anywhere and i think that's the magic difference between the government's consistent position here and the defense position the defense position was that essentially venue is nowhere and the government's attempt the route this trial and all the different procedural stages we're talking about was to venue was correct here with minimal prejudice to the defendant so for example we asked for a judicial notice instruction instead of putting in the records which would have told the jury that this defendant was dangerous and the flight risk and in custody for a year and a half before he was tried we tried to get this done through judicial records and notice because it was undisputed that the defendant was in the m d c here in the center of a state of california and we needed to prevent i also should point out earlier little to the indictment itself a normal indictment says a crime was committed in this district but that's the basis for venue being clear from the indictment this count didn't say that and that's makes this a very different case than ran garcia to the contrary i would like to correct my colleague this is not at all like morning garcia ring garcia in correctly alleged that venue was in the sun was in southern california when in fact it's not at all clear where the defendants were st brought it was a factual issue and the indictment alleges that the crime occurred in a district and that wasn't true and then the governor had to fall back on the thirty to thirty eight he was indicted the defense brings up in that brief sort of nuances on that will maybe we needed to allege that he was summoned to appear before the court or some sort of judicial process in addition to being detained here could he know in warton don't get into that level of specificity but it's certainly true and also reasonably inferrable that somebody who is detained in the central district and located in the center district was st restrained of his liberty in connection with that count in the waived because yes if you're trying to say that my trial shouldn't be here it should be at least since some other district right not in greece but some other digital district united states that claim has to be clearly raised right and this is a rule twelve not  issue as we point out in our brief and nd if the court is going to get into the legal rule here venue is always evaluated count by count charged by charge offense by offense and the entire thrust of the defense argument based only on the d c just a court case is a departure from the role in every circuit that the dress this issue which is when you're valuing venue and thirty dollars to thirty eight dollars you look at the particular count charged i think if the court were to follow the defense argument on the merits it would end up with some very anomalous results i'm sure the court can think of more but i can think of two of them if the thirty to thirty eight count holds other counts into that district then you end up potentially violating the constitution in some cases like here where you have counts that actually occurred somewhere in the united states pulling them to another district and thirty to thirty eight it also would make for a bail determination dispositive for venue purposes so for example if the defendant here had been at liberty on bail in the center district and was then rearrested and brought in an initial appearance before a magistrate judge well then he under the defense argument think would have been physically arrested in the district but because he was in custody the nova knew that that doesn't make sense either so i think that's probably i guess because of the fact that no circuit has adopted the rule that the defendant is asking this court to adopt can i ask you a question on testimony that's correct your honor they were not given any benefits and the and the prosecutor represented to the court below on the record when discussing this you shoe that they were not given any benefits i agree that that's an end the question because as this court said in  the extent that they believe subjectively that this was a with this was a risk sure that would be relevant but if you look look at this court's model four point nine or the next will or this court case law there still has to be some foundation for the instruction and these these mercenaries are cross examined for hours the defense had ample opportunity to develop some foundation that maybe they thought they were getting some benefit from the u s government but testifying as opposed to just being there as a result of georg issue i think the government really mischaracterizes our argument and also the authority were a line on where relying on the same cases that these cited like it's you know this court's decision in liang and the government hasn't cited any case to support their position that if a defendant is taken into custody abroad that you can then rely on the arrested provision in thirty to thirty you can see you know liang all these cases make clear if the defendant is taken in custody abroad the st brought provision applause and that fixes where venue occurs that's what those cases said you know i know the governor doesn't like that war but they haven't cited any authority any case that says when a defendant is taken in custody abroad and brought to the united states that you can try him wherever you file the charge that's just not the rule so that's the subs and you rule now on the waiver issue i think the government just kind of you know glance government did not say in its procedural history government says no we're not going to give you any information in the in the district court denies the motion about a year and a half later for the st time the government says it's seventeen days before trial i said it's and i don't remember but i'll credit the seventeen did as it went through this whole analysis to explain that the defendant was not in custody when he was brought to the united states and because he was not in custody the government could then rely on the arrested provision but what could he know says is if he had been in custody and that's why they went through all of that analysis that defendant too would have had to have been brought in the eastern district of new york presumably at j f k because that's where he would have been st brought but they said because he wasn't in custody at that time  where you were st brought in had kids you know been in custody abroad he would have had to have been prosecuted in eastern district of new york but because he was not in custody they could prosecute him in the senate in the southern district of new and that's the same thing that happened in landed in new york and he was not in custody exactly and they waited until it landed at dulles and then they arrested him precisely your honor that's precisely the point we're asking you to follow erdos follow continue no the government just wants to ignore the entire those decisions they have not cited a single case to support their position on the waiver issue even at that late date after the motions deadline had expired or even at that late date the government still didn't say we're not proceeding under  this defense objected in any event the government was well aware that the defense objected to their three thousand two hundred and thirty eight dollars theory they were well aware of that and then at the rule twenty nine he made this precise arguing he was not arrested in the central district he was arrested