good morning in may it please the court handy for corey from the federal public defender's office for mr ahmadi and i would also like to reserve two minutes ahmadi was paid seven hundred dollars to assist into drug sales in afghanistan this mistake resulted in him being flown seven thousand miles from kabul to san francisco to stand trial in this country a place he never stepped foot in before the district  required to make a pretrial determination that there was a sufficient nexus between mr ahmadi in the united states to ensure that the prosecution didn't violate his right to due process can i ask you why don't you think the statute that he was charged with why doesn't it wh already have as an element the required nexus in other words doesn't require your client have to admit that he did intend that the drugs would ultimately come into the country so the statute so there's a couple different pieces of this of the elements of the offense the elements of the so mr ahmadi was convicted of a conspiracy to import heroin intending knowing or having reasonable cause to believe that it will be unlawful imported into the united states so our position is the conspiracy statute requires intent and nothing else and the nexus require an intent to do would intend the intent to import heroin so into the united states ok if if one has the intent to import heroin into the united states would that and if it jury found that that occurred without establishing sufficient nexus for due process purposes our position is no why why not because what this court has said and it said it i think most explicitly and con which is cited in the briefs and con this court said that in order to satisfy the nexus requirement there has to be a showing that there is a likely effect in the united states and what we and what con said is they gave two examples they said either there's an attempted transaction that is aimed at causing a criminal act in the united states or there's a ship the most of these cases are m d l e eight cases but the principle still apply the alternative way is that a ship with drugs is bound ultimately for the united states and as we've laid out in our briefs almost all of the cases dealing with this these sorts of issues involve significant quantities of drugs actually and the route to the united states side for a second if the government created this crime that's not an issue in front of us because your client waived any of those any of those kinds of defenses let's assume for a second that there's no government agents involved at all somebody  needed states gets on the phone with his friend in afghanistan and says i want you to ship me some drugs and the guy says ok i will do so and make preparation to do so and the government san francisco and gets arrested wouldn't that's what one would have to find to convict you why wouldn't that satisfy the next record again in our view your honor the next requirement requires a likely effect in the united states and that is not a requirement of the statute i think maybe as wait a minute what the likely importation of drugs a likely effect in the united states because this is the as the title twenty one offense the element is simply the specific intent to commit the crime title twenty one drug conspiracy offenses do not require an overt to act and that makes it distinguishable from a section three seventy one conspiracy for example which doesn't require an overt act and it's that difference that is at issue here in our view so the nexus requirement i think maybe one way to think about it is the nexus requirement adds a sort of adds an overt act like that element to the to the to the case that would otherwise not exist so if you had t defendants soli in the united states and they reach an agreement to sell drugs that's a completed crime of conspiracy to distribute drugs when you're dealing with a foreign national in a foreign country where there has to be a nexus to the united states and what this court has said likely effect in the united states our view is there has to be something more than just the simple fact of the intent and the intent may be enough to satisfy the title twenty one elements of the crime but it requires something more to show a nexus to the united states and that's why this court has routinely said number one a defendant nexus to the united states has to be assessed based on their own contacts with the forum and not just their contacts with the codefendant or the co defendants contacts with the form this why that's why this court is also again most of the cases involve situations where there are significant quantities of drugs that are actually destined to the well once you try the case but as defense counsel says it depends on the facts and i let's try the case we'll hear the facts and and then if you want to make a motion at the end of the case that's ok with i have two trials let's have one you can always come back to me at the end of the trial and say the facts are insufficient to to prove the crime so so i'll deal with the what the district court did and then i'll deal with the guilty plea issues so as to what the district court  problem was that again this court has repeatedly said that the nexus requirement is a preliminary determination for the judge it is not an element of the crime so it would i would imagine you know and we have said that but have we said the judge must make the determination pretrial or have we said the judge can make that determination after the government puts on its evidence it's never said the latter it has tended to say it should be decided pretrial and again all the cases indicate that the district courts in those cases had extensive evidentiary hearings on the issue pretrial and i think the problem with requiring mr ahmadi to go to trial was again the whole point of the nexus requirement if you analogize it to personal jurisdiction in the civil context is there shouldn't even be a trial to begin with if there is no nexus shown and so it does so that's a problem and it also impermissibl puts the burden on mr ahmadi to disprove the existence of jurisdiction when that burden is supposed i don't see how it shifts the burden the government puts on its case and you stand up at the end of it you so your honor they haven't government's burden to show the jurisdiction requirement they haven't proved and i moved to dismiss what i think one of the problems with i would imagine again and we're talking about hypothetical so we don't really know what would have happened but had let's say mr hammadi had gone to trial if he had attempted to present evidence on the issue or  tried to cross examine a government witness about well there was no actual drugs in route to the united states the informants were never going to turn drugs over to the united states or any of those like that line of questioning i would imagine the u s attorney would object as irrelevant and would likely get  s sustained because those are not elements of the title twenty one offense they only speak to the nexus and what are the sorts of additional facts that you think the government would have been required to prove up at this pretrial evidentiary hearing in order to sustain jurisdiction in view they would have had to show that there was what we what we argued was there needed to be an actual plan with concrete steps to show a likely effect in the united states or there needed to be some showing of a connection independence from the crime itself so there needed to be you know if he had come to the united states to have a meeting perhaps that would have been sufficient had he sent the sent drugs to the united states that probably would have been sufficient but here all of the actions madea's doing apart from communicating with his codefendant on telephone is all done abroad i want to i want to save my time for a but i do anticipate we'll talk about the plea issue later but i'm happy to answer questions  that he knowingly and intentionally intended to because it possible to satisfy the terms of the statute with respect to conspiracy to violate this and nonetheless have an end sufficient connection to the united states no your honor why not because the element of the offense is that the defendant has to agree to import drugs into the united states knowing and intending that the drugs will be important  states because everybody he was dealing with was a government agent assumed that to be true for a moment that there was no possibility in the world that this particular catch of drugs would come into the united states because the impossible from its outset correct or it's a pretty because it's the it's the intent to have an effect on the united states that is sufficient so if somebody in afghanistan thinks bad thoughts about what he might like to the united states that's sufficient to be a crime under united states criminal law to be prosecuted in the united states your honor i don't believe that is a crime under united his constitutional laws and i'm asking a different question could there be can see if that were a crime thinking having bad intentions i don't believe that we can criminalize having bad in some instances let me cut off your scapegoat here what if we made it a crime to buy heroin in afghanistan with the possible thought that later i might ship it into the united states would that would that satisfy the nexus requirement is the possible thought that it might be i have an intent to ship it there but if somebody else comes to me first with a better offer i'll take it does that to satisfy the nexus requirement if there if element of the offense is the intent to ship into united states then yes because an intent to cause harm in the i'm say we have a crime that's not protected by the first amendment which is saying buying heroin with the intent to distribute my intent is to distribute it anywhere that anybody will buy it then we have to say that satisfy the nexus requirement we have to have a states we could also show that you had contacts with a coconspirator in the united states that the conspiracy was arranged in the united states that you that there were overt acts informants of the conspiracy that occurred in the united states all of these things could be shown however in this case we didn't have to show any of them because it was an element of the offense and in fact this court shouldn't even be hearing th ok i know you want to get to that but so what i hear you saying though is that even if the defendant in this case had had any contact with anyone in the united states and merely conspired with another non government agent in afghanistan both of them very you know that that is a under a conspiracy statute if the intent was to ship the drug to the united states and it turned out not to be actual real drugs then yes i do believe that we could still we could prosecute the agreement so so we've got a we've got two people in afghanistan conspiring to what turns out to be powdered sugar but they thought it was your honor they have to have some contact with the united states or some intent to do harm in the united states so if you need something more you need more than the intent to satisfy the nexus requirement you need some contact with united no you and fact this court has repeatedly said that nexus that nexus may be shown simply by a conspiracy intending to import drugs in the united states that conspiracy a bunch of bad guys so let's make it easy a bunch of bad guys get together in afghanistan and they make incredibly detailed plans to ship something into the united states but they never contact anybody here and the plans don't come to fruition because they're caught before they do is there then a sufficient nexus with the united states yes your honor however that is so far from the facts of this case well but but but it seems to me that if you have to show you put it differently that would be enough to satisfy the statute statutory requirement for a conviction would it not yes or ok and you're saying it would also satisfy the nexus requirement even absent all the extra stuff we have in this case correct however i would point out there's a lot of extra stuff that we haven't but his point is his point is the extra stuff is more than what the statute requires and therefore you have to have a separate hearing about it and so i think you my question is if you need the extra stuff don't you need here no your honor because first we don't need the extra stuff but tell you what it's in my first question is yes it doesn't matter that they never talk to anybody in the united states correct or out but i would also point out that the district court did look at other things and made a preliminary finding although he was not required to but he did make a preliminary finding that there was sufficient evidence of nexus for it to go to trial i didn't have  exhibits including recordings translations of recordings and the defendant's post arrest confession in which he admitted that he no knew and intended that the drugs were and were coming to the united states so the district court considered all of that and found looking at that evidence it was clear that the defendant knew the drugs were coming to the united states and in fact and the defense doesn't contest any of that defense doesn't say it wasn't him on the recordings the defense doesn't contest the translations of the recordings the only thing th us is the legal conclusion that the district court drew that it was a sufficient nexus and you do not need to have an evidentiary hearing under those circumstances number of your argument is that the judge did have a pretrial hearing did find this sufficient nexus and that the other side is titled to put on its own evidence correct or because you're only a litle entitled to an evidentiary hearing where there is a significant factual dispute their dispute isn't with the facts their dispute is with the legal conclusion regardless the gist of it was also correct that because it is an element of the statute it was a question for the jury to decide not a question for the court to decide and so the court appropriately deferred until deferred it's its ruling and made a ruling without prejudice saying that the defense certainly could raise it again but that this really was a question for the jury to decide i see that i am out of time however i wouldn't urge the court you don't even need to get here because because it is an element of the offense the defense cannot raise this claim without contradicting the factual statements he made in his guilty plea and under class and under this court's ruling and garcia that means that this court that he is barred from raising this claim on appeal and but it is an inquiry for the court not the jury it is not an element of the crime so i didn't say to be fair that case did not involve a case in which one of the elements of the crime was intent to import something into the united states correct that that was the yes i believe so that's so here that was a case was dead was a case in which we had something like burglary or robbery and the question was why does and everything to do with the united require some lots of very confusing maritime law and my time is up but if i could just answer the question thank you involves maritime law and to make a long story short it does require a by statute a finding about the the statelessness of the vessel the important point about clematis yes your honor is in that case there was a likely effect because there was twenty four thousand pounds of cocaine that were on a boat sailing to the united states  government referenced peterson as another case finding nexus that case involved twelve tons of marijuana on a ship that left thailand to go to the united states and the ship was seized by the u s government in alaska those are all cases that show a likely effect on the plea issue  because in our view the nexus requirement requires more than just intent the plea doesn't preclude the appeal because the police say we don't contest intent but if you have to find something more which we believe the court does then it falls precisely within the types of claims that this court has had a plea does not bar because it speaks both to the right to be hailed into court at all and the power to the ability of a trial to take place and as