good morning welcome to this circuit day two of our three day sitting we have four cases to be argued this morning we'll hear two and then recess briefly before picking up the last  two we are somewhat insistent on the time when you read light comes on please stop in your argument certainly finish the answer your question and if we want to in the time we will let you know don't depend on gunner's this case involves several issues significant of which is the question of when do the laws of the united states criminalize actions which take place abroad in other words when is the extra territorial application of u s law  that this particular statute could not be applied in the next a territorial fashion it was considered by the court and the district rejected it was not framed as a challenge to the indictment or the challenge to  evidence and you're right thank you for that i see that the government also pointed that out it seems to me that the the challenge was that  can statute what could not be applied in an extra turtle application in rojas the court they're also considering it and there it said that because the defendant failed to challenge that issue objection specifically targeted the extraterritorial application of this i believe it was preserved honor the section of the statute isn't in context in the section is titled continuing criminal enterprise it is also in a section that is titled the death penalty and actually provides for the punishment it's punishable by death in determining whether or not there is an extra territorial application case law in courts of found that unless there is a clear indication of such extraterritorial application federal laws will be construed to have only a domestic application this was most recently set out in our joint of disco june two thousand and sixteen supreme court case in that case the court dealt with the  extraterritorial application of a rico statute and the court found there that there needs to be unmistakable congressional intent to apply extraterritoriality if there is not such intent then there is a two step process the first is to determine whether or not there is clear affirmative indication that applies abroad if not then the court goes on to examine the statutes focus to determine whether the case involves a domestic up occasion so there's been litigation on what that means judge with focus as far as the courts have said it out is if conduct relevant to the focus occurred in a foreign country then it involves an impermissible extraterritorial application know i understand our junior correctly that the supreme court says you can look not just at the specific charging statute but you can look at the underlying statutes dreams of the predicate acts  know i believe that the biscoe limited that application specifically to if each of the underlying predicates has that extraterritorial application then that the specific underlying predicate can be used to  justify that application of broad what mr vasquez was convicted on a more general drug conspiracies that may or may not include actions in this country or abroad although the underlying predicate for convicted under eight forty eight brett judge wright and eight forty eight if i recall incorporates by reference nine sixty which in turn records by reference nine fifty nine your honor but that's one specific it does also incorporate other other provisions and other criminal acts i believe our journey biscoe held the holds the rule that if you have to look at the specific predicate and very clearly look does that specific predi allow extra territorial application or only is the charge under that x or under that predicate if it involves other predicates judge that do not have that extra territorial application no matter that maybe one does i don't see how including all of the drug conspiracies which which my client was convicted of can support an extra territorial application of that provision you wanted the part of the problem here is when you look at that the focus of this statute i would argue that it does not have a clear affirmative indication that it applies abroad so the courts of the hell that you then look at the legislative history  procedural context in the statute itself to determine what the focus is it's pretty clear from my briefing in apparently from the government's briefing judge that this case this statute has not virtually never been appl for acts of killing which occurred in other countries the district court case found only one case which is the united states versus ma case which involved killings in canada i believe and in that case u versus ma found that it held that the actual killing occurred in the united states because there was significant planning in the united states so even though it wasn't it didn't need to look at the beyond the statutes focus at that point it went ahead and looked at the intent and there found that because of the nature of the crime it involved the next a territorial application will sense that judge are going to biscoe came in and further clarified what exactly you have to look at to determine those issues so there has been really no other reported cases in that's why this case is a little bit problematic to your honor because on the face of the statute itself i would argue that there is no indication a clear indication that arguably judge if it does not involve the explicit indication that applies extraterritoriality extraterritorial e then you look at the legislative history and the procedures as mention the procedure there's only one reported case the legislat history there's been some briefing in the in the briefs some both sides are on a regarding what that legislative history is but basically amounts to two things one there was an indication that they were concerned about killings against  enforcement and so those law enforcements were happen to be in mexico or any other country that was discussion that that actually be covered somehow the other discussion in the legislative history discussion of this is that  there was some concern that if there were is a killing or if there was a murder of a conviction possible in some countries that mate and there may be problems with the united states extraditing certain persons from countries which which  against the law in their country so that is the extent of the discussion of whether or not this applies outside the shores of the united states there's been there was no discussion as to what course of some policeman in coconspirator in mexico or in any of the country is murder that some of constitutes enough to have a potentially murder sentence for this statute here in the united states and that's really the crux of this provision this part judge these there's been no indication otherwise and the record reflects that all the alleged killings occurred in mexico there was no killings that occurred in that states the appellant was not a united states citizen  he was really no indication that there was any significant planning in the record in the united states these were wholly criminal acts alleged criminal acts which occurred in mexico so regarding the the provision of whether or not to protect law enforcement officials there's actually a section in twenty one u s seat forty eight which is a one beat that addresses killing of law enforcement officials during a drug conspiracy so there's really no other indication your honor here that both in the focus of the act which is the killing is the focus of the statute there's already criminalizing for the drug conspiracy your honor and that has other provisions that are being punished that the focus of the statute really is the killing and if the killing occurs in mexico there's simply not enough there's no affirmative indication in the statute that it applies to two acts in mexico and certainly looking at both the procedure and the legislative history and the statute itself there's no indication that applies to the killings in mexico during addition and that related to that there isn't a question whether what the substantive connection has to be between the killing and the drug charge and us versus the pond which is the fourth circuit case your honor also in the brief the court there is struck to the jury on of the stink type of homicide which is the homicide in this and further of this continuing criminal enterprise and said that the jury must find that the fan it was not only engaged in the continued communal enterprise but the killing occurred while he was so engaged and so in these in there the first prong of the statute talks about an organizer supervisor involving five or more persons and obtain suspensions substantial income there if a person commits a killing while engaged in continued criminal enterprise the reason this is so problematic the third prong is because it does not require a kingpin and it doesn't even require henchmen all requires a person engaging in this  drug conspiracy killing while engaged in such drug conspiracy so it doesn't require anything else and whatever engaging in means in that third prong and so the question remains what does engaging mean mean in that can mean the organizing supervisor with the five plus persons which obtain substantial income that's not how the government's charged and that's not how some cases i've read it it certainly doesn't mean in furtherance of so the question is what does  you a person in mexico can be liable for the death penalty in the united states if he in any way aids and abets this venture which results in the killing in the government itself for me statement that aiding and abetting kluge every person that picks up a weapon that stood guard that interrogated people that assisted in getting those people picked up that that they contain in the government giving out names of informants in mexico or whichever in the country and i know that's what that person is doing and i hand that person a pen that needs a pen to write that information down under the government's position in this statute than i am in mexico not a u s citizen ever been the united states because i gave that person the pen i'm aiding and abetting this criminal enterprise which results in a killing now i am subject to the death penalty in the united states i don't know that i don't believe that's the statute intend judge and i don't think that comport with with the constitutional law is that there has to be some connection between the act and the potential to receive the death penalty and with that i see that my time is up there on  please the court elizabeth there and her from the western district of texas on behalf of the united states first i just want to address that standard of review question that was raised by judge her this court's precedent suggests that a challenge to the extraterritor and the government raised that objection below i know we're still figuring out since the two thousand and fourteen amendments whether that's going to be waiver or clean air or different circuits have gone different way but at most it would be plain air and so even if this court were to review it it would be under the clean air standard and under the plane air standard or under any standard this case involves a permissible extraterritorial application eight forty eight b now forty eight of course is the briefing goes into in depth was an activist part of a broad drug legislation in the anti drug abuse act of one nine hundred eighty eight that was designed to prevent the manufacture and importation and distribution of illegal drugs in the united states so under a long line of supreme court precedent and fifth court precedent that's bowman baker lawrence dillon way of this court can infer that congress intended to apply the statute extraterritoriality based on the nature and purpose of the broad legislation now the defendant has has said that somehow our g r nabisco has changed this long wind going back to one nine hundred twenty s and legislation precedent about the broad reach of these drug smuggling statutes and  did it first of all it's not clear that our g r even applies in this context it was governing a private right of action in a civil context this was not broad criminal legislation we've already had a case a district court in the southern district of new york find that it doesn't even apply and i'll provided the court with that authority after this argument a case called buck but at and if we look to our jr and we look to bowman and just marion those two together bowman is really talking about this type of legislation bowman is  discussing criminal schemes of the right of the sovereign to protect itself and that's very different from our journalists go and we can kind of see from lawrence which is this court's opinion in two thousand and thirteen and from this court  more apt term is condition precedent offenses because it doesn't require a conviction of the statutes but they apply extraterritoriality and just a follow up on judge host question we all of that the charges that were  case the conspiracy charges apply extraterritorial so we have count for distribution for import which is nine fifty nine a rojas says that that applies extraterritoriality we have the import charge in counts three and seven hundred twenty one u s c nine fifty two prize herrera says that that applies extraterritorial we have possession with intent to distribute under twenty one u s c eight forty one a one that is counts to six and eight and ba just a note to that and interpret congressional intent there's a bit of in our jr about not interpret it to make congress do something where it's resulting in difficult line drawing or counterintuitive results so we're not going to texas and then as a result of that brady is some into mexico called on his us cell phone while he's in the united states and some in down to mexico to report in where he will eventually be brutally murdered and tortured and die a horrible death so and there so many of him there for a very important purpose the evidence in this case shows that they're using that border as a barrier they have paid off and made the mexican law enforcement and greste completely ineffectual so in effect to their calling the person that he recruited in the united states who in eagle pass texas and is asking her questions like is this the man did he tell you where the struggle is to he is he the one and having a u s citizen on the u s side confirm this information it makes no sense in this step in this way to to not apply this statute based on killing medicare's in mexico this is all about a violation of u s drug laws and the extreme violence that results as a result of this it follow the law and it complies with the statute it's consistent with both the statute and and precedent that's why it happened in our circuit i mean we're a border state i don't know how often this comes up but in western district we have we were to sixty feet from mexico and you go past i mean this is violence it's occurring sixty feet from the united states just on the other side of the rio grande this is a very real issue for  districts to have to deal with people who come into the united states and some in united states and recruit u s citizen teenagers from eagle pass high school to run their drugs and then use the border as a shield so it's hard to imagine that when kong and congress seem to very aware of this is all about the congressional intent and congress was aware of that u s law enforcement officers were being murdered in mexico they were of the global of violence that was occurring as a result of the byelection of u s drug laws with drugs that i mean we can't forget that these people are committing the one in violation and they're committing import regulations they're committing a desire and a conspiracy to pump drugs into the united states these are not creating free zones just beyond the border and that's what the result would be if we didn't apply forty eight extraterritorial now i know that the defense counsel raised some concerns expression in the context of the aiding and abetting instruction and i were somehow giving rise to these comedy concerns of you know applying the statute to people that really are have very little contact to the united states and and although that's not present in this case again the defendant was living in the united states his wife own property in the united states frequently seen across the border in the united states so that's not this case but and those comments concerns can be bent by other doctrines and laws such as form not convener constitutional challenges based on a lack of personal jurisdiction that's not what we're talking about here we're talking about did congress intend to apply the statute extraterritoriality not whether that should apply based on the if and then the has minimum contacts for some reason so  i don't know if the court if the court has any other concerns about this extraterritoriality i would just like to briefly address the jury instruction in this case first of all the court need not reach the issue of the jury instruction because even if everything the defendant says is true and the government probably agree there needs to be some sort of substantive connection between the statute and the killing i mean the joy the drug that the violation the drug on the killing i mean that's evident from the case law and that even if the courts instruction was overly broad even if the jury strayed beyond the ordinary instrument of instructing them that it must be the defendant must kill while engaged in the violation of the used underlying drug conspiracy yes this is not the case where it created a substantial prejudice affected the substantial rights of the defendant and all of these murders here were very much connected to the drug violations we have and all they were cooperators killed for giving information to us law enforcement poncho quiller was cooperating with us law enforcement and the result more upwards of three hundred people were killed including victor cruz and his entire family his young children who are handy only on a drug debt to the cartel he was forced to witness brutal murders by the defendant in order to extort him and his family to pay off the drug debt that he lost due on daily on also testified to four children who were murder because they were suspected of working for a rival cartel there was the murder of three mexican military people who were charged with investigating these crimes in mexico and presents one of the greatest threats to the zetas in piedras negras so all of these murders were very much substantively connected with this so under the defendant can't demonstrate any sort of prejudice from that jury instruction as far as a being in about thirteen liability the law is clearly established keeping and abetting liability does apply at eight forty eight it's taken into consideration when giving the death penalty or not of course this is not a death penalty case this was a twenty year minimum mandatory case but and just to know that the evidence overwhelmingly supported the government's theory that the defendant acted as a principal what he in fact was the killer in many of these murders the one putting the victim to the floor as you like to call it the brutally murdering people in front of other people so this is not really a case that raises the same concerns to this issue came up in that case of the fender and basically complained about the sufficiency and not did not complain about the extraterritorial application and there of the house found that because it was only complaining about th challenging the constitutional or the extraterritorial application of the statute carry some substantive rights on appeal i would also like to address again the issue of the predicates so i would like to clarify that you know our john to biscoe itself said this was a unique statute because in the rico situation you don't necessarily have a discreet act what you basically have is a is a concert of predicates and that those predicates come together  basis of the criminality so even in our going to biscoe the court found that that was a unique statute here just because i would argue your honor just because a one of the prongs of this conspiracy that they're alleging here happens to apply extraterritorial here itself the killing is the focus of the statute it's not like r g r nabisco where there is a conglomeration of these predicates there is an additional requirement of the killing so for that i would argue that that that does have to either be specifically applied abroad or somehow made clear through interpretation that's what it meant that the issue was why would the government charge this case and your honour's brought up a good point if i won him they have to raise that the person is an organizer and hear this five more people and he has significant income why would anybody charge that when you could simply get all that and more because they do allege in the trial they allege that my client was an organizer that you can get away with all that just big moral that and say hey if he's involved in a drug conspiracy and there's a martyr and it doesn't mean if he has to do it you know without going into all the details judge there was there was a dozen or more killings more killings alleged in the underlying trial my client did not have a hand in most of them that's that's an interesting way to put it judge but the allegations were that they were you know only a handful of alleged killings at the hands of my client so the majority of the culpability for count one where they have this long list of people that are accused of my client being involving killing the defendant for the aiding abetting must have purposely participate in the criminal venture so to participate he just engage in some affirmative conduct not the drug conspiracy some affirmative conduct designed to aid the venture or s engage in affirmative contra conduct to assist the principle of the crime so again your honor i go to the issue and address of the court i don't have much time but the issue with rosemont in the supreme court in those situations the supreme court said hey there has to be a connection if you're going in that particular case involving weapons charge if there's going to be a robbery or some kind of a felony with a weapons charge and if you're going to get somebody for aiding and abetting there should be evidence or a requirement that the person  about the weapon in this situation as i mentioned the way it's it's the way the government argues and the way with the jury was instructed regardless of what they specifically alleges my client what they're arguing as a policy matter i'm you know a nineteen year old kid in mexico and i call on the cell phone to give some indication of information that can result in a killing or i give it my pen the somebody taken down information about alleged victim under this scenario then i'm susceptible to have a capital i mean to have a death sentence penalty in the united states i don't believe that's what the statute intended i don't believe that united states versus the house which also talks about how the extra territorial application of these statutes have to mesh with international law i don't believe that the interpretation being taken by the government satisfies either of those thank you