of the statute as well as how it was applied in this kid including whether the issue of jurisdiction or the jurisdictional element should have been presented to the jury and proven beyond a reasonable doubt district court err in the way that the district court handled the case the district court divided the issue and made a court ruling on both the factual issue with the well whether the location  things first of all reading renos and it's the same as it was a declaration from her role that states that the coast guard asked for my nationality i told the coast guard not you're within the customs waters ok and i can answer that first question that the court asked first which is what does this mean and then i'll get to whether that's a question that the judge should decide or andersen and whether that should have gone to the jury the main hearing pretrial and trial initially to show that there was a concession by the colombian government to united states jurisdiction the problem with that and in my supplemental excerpt of record i also have provided the court with a log sheet indicating that the colombian government navy was attempting to rendezvous with the u s s the work and the fireball and the other ship to try to made i think by the appellants to show nationality the boat under the statute but the government says that it's controlled by nineteen zero three c street and there is only three ways that the claim of nationality and register would be included and the one that seems to fit if this works or france is that the verbal claim of nationality or registry by the master a person in charge of the vessel and here we don't have that seem to have that evidence because neither of reno or maria all claim to male just fine male can hear me and we can hear everything in the courtroom well i can hear you now well i guess he turned it up about me oh you're great now ok the jurisdiction of the court is left to determination of the jury well thank robbery cases for example the element the jurisdictional element of being federally insured must be proven beyond a reasonable doubt there are many instances where those jurisdictional elements must be proven in united states  comments made by government counsel during the rebuttal portion of the government counsel's closing argument and i will be referring to the excerpt of record filed by mr murray leo typically volume two presumption of innocence the presumption of innocence that these men have all been cloaked with for the last year last year while we litigated motions you've heard about all the motions that haven't helped for here and that's why it's taken so long to get here that presumption when you go back into that room right behind you is going to vanish when you start deliberating and that's when the presumption of guilt is going to take over at that moment there were a blizzard of objections for i think what are obvious reasons the government has since in its brief seated are this objection and these objections were met with the following response from the district court and this is found at page three fifty three judge just commenting on a prosecutor's closing argument or scripting the jury during the course of the trial in a way that would undermine the competency of the jury's verdict because it affects the framework of the trial as a full so that the the judge the judge did not make that instruction now and then to charge judge give some curative instructions and instructions to the jury after that comment the court instruct that the presumption of innocence does not vanish upon entering the jury room and the court after hearing this argument decided that it would not instruct at all i thought time there was a curative instruction given seventy two pages later into the transcript when the court of prior to constructing the jury on the actual jury instructions at the close of the government's rebuttal argument after having a series of break and that of course is an essential bedrock concept for for a person to be given a fair trial the jury cannot misunderstand something as basic and fundamental cure the part of the comment that related to the presumption of guilt the court never informed the jury that the presumption of innocence vanishes upon the start of their deliberations and therein  the arguments that we felt to first of all that the harm is one invited i think are are just meritless that there was no commerce by defense counsel that invited the prosecutor to basically of this rate the whole concept of well ok thank you very much focused on the larger boat rather than the small boat i was going to cover that briefly which is that during the initial argument by the prosecution there was the claim that there was a confident there were confidential informants or information from confidential toral and the response from the prosecutor was we have produced everything and none of it is for all for being based on that i assume that the government is going to offer nothing other crime nothing outside the arrest or of september tenth and september eleventh of two thousand show knowledge lo and behold however during the trial the logbook was admitted and i did not object to the admission of that logbook similarly this court had  worst case like this in a case called organized in which there were leisure votes there was no exaction to the actual admission of the ledger books because they were seized but it was the contents once it was clear that the government was going to get into the contents of the log books i and that was inadmissible for a couple of reasons firstly there was no authentication of whether or not these were done by mr sloan least in fact there is no evidence but my client musea literate regardless of that there was nothing seen the grand toro but it was a rust bucket and a half but assuming there was someone who was going to talk about business records there was nothing to show that these were admissible as business records so it is first they're custodian of the records bring it in and there was no custodian let's talk about that the only thing that we had was it's on the it's on the ship and now it seems to but for a business record to come in you have to have the person who was actually responsible for maintaining those were mustered at the fantail and maintained that position by armed guards who were permitted to leave that location to go to the bathroom and or the galley for meals only with an armed escort and they were detained in this fashion for nine hours on the first occasion on the second occasion for something in excess of an entire day the government says the decision to bring them to san diego was decided on the twelfth actually the testimony was that it was on the thirteenth but in any event we have a massive detention here with the show of force which the government is trying to equal of to a traffic stop that who headed up the letter team on september the eleventh specifically stated that they asked the questions because they wanted to know whether mr marquez the engineer was going to tell them the truth they already knew the answers so to say th  operation this would have been all right if that's what had been limited to in this case but here commander matthews was permitted over timely objection to a lot farther than that to characterize the therefore he died and he's not entitled under problem number three war he's lying about freddie and therefore he's not entitled to it under problem number five both of which i did already ruled upon by the court harden the comments were made a closing argument and particularly the argument that was made by defense counsel for mr relative to the presumption of guilt argument before i start however i would like to thank the court for moving this oral argument date which allowed us to have this it was a gallo present here today otherwise we would not be able to be here longer in reference to the presumption of guilt statement that was made during closing argument i judge but it should not have been made mr galloway has never done that before neither he nor any anyone say that i know of will ever do that again but it wasn't deliberate and that's why the judge on two different occasions made a finding that it was improper but it was not  saying something deliberately but let's let's look at the background this just for one second mr cross was attorney mr barnett said for the second time that his client who didn't testified was happy the cocaine was off the street clearly improper comment that was linked something presumption in guilt which is never been weak before by him or anybody else should have been blanks moved away from it as soon as the objections were made and before this jury started to deliberate the jury had correct curative instruction from the court in the jury had a correct closing instruction given with the regular closing instructions i also know that mr gallant on two separate occasions and one occasion all in this argument reminded the that the government had the burden of proof to prove this case beyond a reasonable doubt now what's important about all this is for two reasons one is separate something that was improper something that was error and something that was a mistake from something it was misconduct he galloway stepped back into it after the judge said that it's ok go ahead and said it again then it would have been too late on ring the bell well or it would have places the case if the judge left the comment where that's all right go ahead and you  the judicial incommodities but that's not what happened before this jury ever started deliberating they have correct curative instruction and they also had the correct instructions given by him and by the jury and that's when the ninth circuit case was very point on th ultimately was correctly instructed welcome to the judges closing instructions and also with the judge's curative instructions so that's different in this case is somewhat similar to cox cox we have the government argue that depends council had to convince  is clearly wasn't given the state of the evidence what is the jury going to think when this jury specifically instructed by the jury by the judge you just heard something about presumption of guilt i'm sure you all know this but i'm telling you again there's no such thing as a presumption  in that room to start deliberating there was no jury confusion on what was the presumption of innocence and there was no jury confusion on the government's obligation to prove something beyond a reasonable doubt although that would be the government position i'll be happy to answer any girl or questions but we make no we apologize for what we did it was a mistake it wasn't deliberate and we're not suggesting just because the government got hot that that's ok to launch into it if mr gallo had intentionally done defense were not prejudiced by what happened in the district court judges took care of it with a s logistical supply that's all and that part of this expert opinion was based on the fact that they had confidential information that that area of the pacific is where boats met up and that they had were involved in what was going on so yes i agree with you on or did you did a mistake in overstate the extent of the evidence but it simply didn't go to the sixty four thousand dollar question which was knowledge and which wasn't you know which was intent was what was the purpose  help in reference to the closing arguments which was plenty of responsibility for me talking about presumption of guilt but mr galloway be addressing that it's a question on your honor's any more questions relative to the closing argument comments thank you very much me anywhere and gets me into trouble that when i find myself when i allow myself to get hot under the collar and get angry and caught up in the heat of the moment i think nate during the closing argument various parts of the record because if that then the next question they have is this if it's a disputed issue of fact is it part of a jurisdictional determination has to be determined beyond a reasonable doubt by the jury i got the stand your nothing more than that's where the boat may have come from or does not mean that the boat was registered or a nationality to that country boats come from oh i counsel i want to stop there because here's where i got a confusion it's true that both declarations say the coast guard officers ask my nationality but if you read the transcript the transcript by admission of the coast guard officer he said i asked them their nationality and the registry or the nationality of the boat so that government scene did not indicate any coast guard officer that there was a nationality of this vessel at that time which at that time made its they first the declaration that was provided by two of the defendants ran a real number provided much later on i read director of the district judge number one did not mention that sentence relative our vote from columbia and then i want to have you tie into that last part of my question you raise if age forty one you've read the fact that under the  is the fact that no one on one of the benefits from the small vote to go fast vote indicated that they were the captain or the master of that muscle no one and only that person under the law may make the claim of step clear ations or statements relative to both can be considered i believe that that's the state of the law and that's the state of the law in other circuits as well but those are of those three factors and only those three factors may be considered by the court determining until you have someone who is ready to step up to the plate and say i'm the captain and i'm going to take the sponsibility for this crew and this vessel that we're on and make that claim of nationality only told that point in time and say several hours it was bobbing in the ocean like a cork bottle creating a hazard to navigation and it was through dangerous that they determined it was too dangerous to go out there and frighten the suspect it's like an iceberg very small percentage of that was above the surface most of the vessel twenty five or thirty feet or so was below the surface of the water being flotation being maintained by some air pocket in the in the boat too dangerous to boat remained afloat for a considerable period of time before it actually went under and during that period of time all five of the pendants on the go fast boat were physically in the boat and have plenty of time to extract any documents if they thought that they were going to be necessary to prove the nationality of the vessel they did that they did not do that stupid they did not produce any documents in fact it took what little time that they had the hour or so to completely address themselves in some instances or at least get down to their skis and jump into the water for the removing anything incriminating or damaging evidence that may be on their person the issue of constitution get to that point i think is a very easy one for this work to decide what has been decided to be constitutional by courts elsewhere in the united states as well as here in the circuit one argument made by the radio is that nexus if the the best illustrate the only need there's only a need to prove a nexus for this connection with the united states if we have a registered vessel like the grant forum which was was registered and that was shown to be registered through documents vessel and its crew sought the protection of no country by seeking to register itself and it gets the protection of the country is considered to be an international pariah subject to prosecution by any civilized nation anywhere in the world for that matter regardless of where encouragers assisters if you will seeking to make the successful or the the conspiracy successful they subjected themselves to the same risk that they go fast through subject themselves and that is being prosecuted by  jurisdiction over the principles of a crime then there is jurisdiction over the gator's in a better sense this is a case of first impression and not only in this circuit but i believe everywhere else in the united states and so we can only argue by an on the land i e distributing cocaine is journey was that excess there's no jurisdiction of an aider and abettor to people who fist fire on land to distribute cocaine i'm not if i understand the question is subject to the jurisdiction of the united states which is required by the statute ok now so what you're saying is even though you disagree with our next of state youth with regard to flights yes you're saying the aiding and abetting is an exception for those cases their permission to board them and search them once we find something then we need to get their permission to go further now it is through arrest and prosecute that's what occurred here and that was conclusively proven by the department  counsel for the defense and the breach heavily discuss what happened at that district court relative to that certification certificate can you give me your position on that dr i disagree wholeheartedly that there was any shenanigans or deceit on the part of the united states government to to obtain the department of state certification and there's absolutely no evidence in the record to suggest otherwise that not only that the law the maritime drug law enforcement at under section one thousand no three c three steps the department of state certification excuse me c one the part of the state certification once scenes in a an attempt to undermine the certification the certification is conclusive and the story and that sort of occasion was provided it was provided to the district court during a motion hearing to establish the jurisdiction of the grand toro under the united states and i submit that that's all that we need to do we do not need to go further and show the nexus and again i understand this court may be bound by precedent that says we have to prove a flag i mean that's what the defense says it didn't have like clearly didn't have a fly it also but also had no markings indicating that it was home or it registered in any particular country and that was to lucidly proven by the testimony of the witnesses on the scene who actually individuals on the work as well as the coast guard individuals that went out to try to rescue these people that it had no markets it also had no documentation indicating nationality and it had no one no one night and not even these decoration you know  that has the burden of the government has the burden of proof we met that burden with the evidence that we had no flag no markings no claim of nationality by anyone who could give such a claim the sponsible i e the master captain of the go fast vessels from all countries have the right to make contact with vessels that comes across on the high seas international waters using their radios and they ask what are called rights of the pros questions who are you and determining on the answers to those questions by the captain or master the vessel will determine what the next step this during the answers to those questions the and it would necessarily be the navy asking these questions if they're on a on a drug patrol which they were in this case it would be a coast guard law enforcement the task which by law has to enforce u s law not the navy but depending on the answers to those questions if the answers given indicate that the vessel is then there will be no board and if the what happens the next case is the coast guard will then through using radio go up to the coast guard headquarters here on the west coast if that happens in the eastern pacific to the district eleven headquarters  alameda so we have a that's a lot here it's the grand toro for example to register to colombia we need verification of that that communication goes off the cuff alameda from alameda it goes to washington d c where there's a colombia which allows the coast guard then to board contrary to the consent of the captain of the ground whether he wants that or not that we can board the colombian government could also say no we're not we will not allow you to board that p i see that i am well over time but i haven't got any of the other issues the rest by the defense and i'm more than happy to continue on the court would allow me to address some of those issues or ask because of what it was that well there is the issue the statements made by mr marquez none of those statements were made while he was in custody they're all voluntarily mate they were all routine questions being asked about gas and where you were located initial phase of the boarding and therefore were not mr marquez was not in custody when the statements were made and they were routine already questions and as with the the court found with respect to the expert witness commander matthews he fishing vessel on the middle of the ocean fission we needed an expert who explained well i mean it was it was operated by a diesel engine that's correct less gasoline that's correct been out on a break he said that is what i stirred when they get back there and start looking at this when the presumption takes over the presumption of guilt so he again reinforced the same exact defining piracy and something that would only be made render capital by the laws of the united states if it were committed on the body of this kind of thing and went on to further define piracy as a robbery i don't want any of you to write that down