alexander good morning good afternoon your honor after all used to good morning williams on behalf of alexander garo i'm assistant federal public defender and i'm going to very briefly two minutes discuss efficiency of the evidence  the maritime forward looking infrared camera operator recorded everything up until to the two coast guard vessels arrived at the suspect that's all for thirty minutes you never saw anyone throwing anything overboard nor try or to flee or use diversion tactics there after it took two and a half hours after the vessel sank for the coast guard to locate the debris field this case has none of the factories and will com or tenneco which  what were the two cases relied on by the government st of all there were no drugs ever observed on this vessel there were no diversionary tactics undertaken the voyage was not long both defendants said it was going to go on for not for two days i think of that boat in this case there was absolutely no evidence that the drugs were ever on this boat not even the usual ion scan evidence that we have frequently in these cases no evidence of a conspiracy among the defendants no captain no conversations among the defendants are simply not sufficient evidence to sustain the convictions even in the light most favorable to the government and reversal is warranted thank you from the government now ladies and gentlemen also what's important and what you must what you must consider during your deliberations is what the defendant are members of the court is that according to the government the jurors had to consider had to consider a th amendment violation when deciding the issue of guilt or innocence according to the government with the jurors had to consider was the defendant silence when deciding whether there was proof beyond a reasonable doubt of guilt so the jurors get an instruction that says and if the defendant chooses not to testify you cannot consider that in any way while making your decision but that's the defendants in court silence it's not the defendant's out of court silence after he's been arrested the end before he gets miranda so of course we're all aware that that in his words the current precedent on this issue is misguided now judge jordan realize that we what are we supposed to do well your honor one option i guess i could have asked for the court to consider this issue and bank i did not do that i don't have an excuse why i didn't do that but i did on our hands talk not well i believe there's two options your honor first of all from what i gathered from judge jordan's concurring opinion and world com he said that he didn't think that he would recommend he did not want to recommend world com for any bank consideration because he didn't think the particular facts of welch comb lent themselves to an end bank consideration so i realized you know by reading that they court has the option if they want to do it and then i believe judge martin in the alexander case in which there was a procuring opinion that you participated in in two thousand and seventeen it said that although the alexander court your court was not going to  recommend that it be an in bank consideration that the parties were free to ask for him back consideration but you're correct i did not do that initially i think this case is ripe for invent consideration because the facts are different than in i think my time is up if i could just finish the thought in this case there were no drugs on the boat like the war and world com and in this case none of the defendants testified will come they did so the facts are much different thank you thank you  your honors the record shows that mr bill has valencia's trial counsel labored under an actual conflict of interests that prevented her seriously impaired his ability to raise a potentially exculpatory defen oh in a separate but related criminal case which i'll refer to as the st case and the record indicates that the st case was ongoing or at least pending on appeal at the time that mr bayle that would inform my client of the nature and consequences of the potential conflict and the fact is that didn't happen because both the district court and his conflicted counsel stated on the record that they believed there was no conflict and so that was the primary error that says that the district court committed and with the to the legal standard where an objection isn't raised a trial as it wasn't here because there was that everything was operating under the belief that there was no actual conflict is that you need to show an actual conflict that adversely affected the lawyers performances have to be apparent to the evidence to the district judge no your honor i think you need to be evident in the record and i think there's sufficient evidence in this record to show the conflict and so what happened was in the in the st case my client's counsel raised a defense and specifically i think i don't know if he was he wasn't lead on the argument but this court has already recognized and accepted that the defense took a position raising the issue that the bales of cocaine at issue that worse similarly souls within a day and a half of each other apprehended of a lot of similarities between the two cases in that st case my client's counsel had already taken an accepted a position blaming us they in blaming my doesn't even really have the option to take the opposite position of the potentially exculpatory defense but i mean the timing wouldn't have been beneficial to your client would it have been i mean the the lawyer boat and then the other vessel being apprehended within thirty six dollars hours but i believe reading this court's recent opinion in february in the st case it appears that that vessel may have been apprehended st but that doesn't speak to when the bales were dumped you know it was in the same vicinity very close in time so i really don't think that the that and of course is an issue that should have been explored or at least should should have been considered accusation we of course we have the arguments that we've raised that we recognize the country president and president and that we simply preserve the nexus argument in particular for further review what we would like to argue today or point out today is a specific issue in this case where the government failed to prove a statutory basis for jurisdiction and the district court didn't properly find one that was based in the language of the statute in the district court actually found things and she was the government originally the criminal complaint and that at sporting affidavit in the charging document the indictment all claimed a basis for jurisdiction under subsection c of the trial under that claim to be a citizen not supporting affidavit that was not proved and it was not proved because there it turned out there was no master individual in charge that made asserted under subsection b which is that subsection that requires the officer an officer of the united states authorized to enforce applicable provisions of the united states to make a request of of the  master individual in charge that wasn't proved and the government took i mean to that i mean there's an affirmative finding of fact that there was no request or act so it's no not a none of the two bases that the government asserted includes the definition says vest that's all without nationality includes and it has a which is not relevant here b and c which are the two bases that the government tried to assert st at the beginning and then that subsection b after the fact neither of which was established she interpreted the term includes as rendering the list a through c non exclusive meaning there could be something else but the problem is that we don't know what that something else is this is a definitional statute it enumerates three bases and what she suggests is that that's a without nationality could be anything with reference to international law but the problem is the statute doesn't say that and it also it's a sort of of you know i mean so i mean one thing that see i understand i guess was she was doing but it's in the stepped to that we failed to connect it to the statute so ok so for instance let's assume that includes this is flexible it allows space for something other than a b and c we don't know what that something else is and i don't think the district court is at liberty to fill that in with none of the above is something under international law that doesn't provide ordinary people notice of what is required to stab lister's fiction there's no definition there's no standard and so that that is the problem that even know bondo this court recognize that a nationality claim for a vessel is an affirmative act and it's something that can be taken only by the master exclusively by the master a bond to recognize that things that are not problem what why do you think it does because well i mean what would a person to start with the language and days it will start with the one that is operative here and this is the one b we kissed so i can concentrate better is that the provision under which the government claims jurisdiction in this case absolutely your honor and it has been the consistent position the continuing one we did it is not a charging document ever since jurisdiction was raised but with free trial during trial and post trial has been the consistent position in every jurisdiction was an issue to be decided by the trial court that no claim was made and that and i'm with you on that but whether there's there's also no dispute that no request for a claim was made right absolutely and i'm go on request of an officer of the united states to make a claim of nationality so the person who was asked is the master in this case how do you know that because it says india one be the master in the facts of this case how do you know the person you were asked was the master or the person in charge well the reason it wasn't asked and this is correct but at no point did the coast guard ask the master to make a nationality claim and the reason was is because there was no one willing to admit to being a master now here if i could have an indulgence of the courts and go through some timeline because i made a mistake in the brief and i'd like to correct that mistake to make sure we talk about exactly who said what and when because this informs i believe the district court's conclusion a factual finding that there was no master identified who would speak on behalf of the vessel i'm pretty conversant with the record i just don't see where in the statue you get to well the nobody claimed to be the master the government will well i have two answers st like i said do you want to be it says the master or individual fails on request so that's the person being asked and two in a bond oh i think this court made it clear that the vessel speaks by the master and only through the master that was both in the majority opinion that discussed the exclusive ways that a claim could be made and then specially in judge black's concurrence where she went on to greater detail to explain why under admiralty law a vessel can only speak  master a more practical explanation for why is that and it shows why would happen in this case if you get conflicting claims if you have a for instance a bundle so you cannot stand on it ver a verbal claim by a non master said would not count and the reason is if you had multiple claims so in this case for example we had the initial interview on there were two rescue boats it was a sinking boat that got people into to rescue boats separated them one on able one to one able to cruz apparently those reports says he asked them when there was only one person on his boat and that's petty officer guests testimony and lieutenant j g black's testimony so that's odd that his report speaks of asking them when there was only one person then could be the individual in charge i don't know if you went overboard i mean that they were they refer to there being a person they they always seem to think that there is such a person they all claim he went overboard i know but so then why in the next question who's the individual in charge now that the master die mean there is no nd degree i mean the person in charge is the person in charge they refuse to be him they say he went overboard i am i just you know i don't see held the the fact that the master is missing excuses you from the requirement under the statute to make a request well i guess of the nationality of the ship because of bondo says a verbal claim by a non master is not a claim and the reason for that is if you had if there is not one person who can speak for the under the terms of the treaty and again your honor i apologize i'm i think it's the content convention of the high seas i believe and that talks about multiple claims that's why you cannot have multiple claims if they if a ship makes multiple claims or two people claim to speak for the own up to being master isn't the next required question who's in charge what if two of them do what if what if two of them do you have to have one master they said he's go overboard once the person who is the master has gone overboard there's no one left to ask because why would one crew members answer be any more authoritative on the vessel than another crew member and the master  was depressed and two days before jumped overboard you're saying there's nobody who can be in georgia yes and how is that consistent with the statute that says you can ask the individual in charge had someone taken responsibility a response from that person would have been ok if they had said where is the master master want to have and i don't have and day before yesterday i've got  i've been in this business longer than any of these kids who are in my crew if one of them had spoken up and said but i am in charge then he could have spoken for the vessel also the burdens on this yes ok it is your honor where does it say that in the statute of bondo has interpreted the statute to say the master must the is an affirmative claim made by the master it is not something that the coast guard can appoint is not something the coast guard can make them speak limited let me ask you this so we have the situation that apparently happens a lot there's a go fast but the coast guard boards the boat what if nobody from the coast guard says anything they just stand there and nobody says none of the people on the on the go fast but say anything does the government claim statelessness there because after all you say the burden is on on the people on the go fast but if no one had asked who the master is that would have to ask in the st instance because in the normal case there are two steps of why this matters under the treaty regime that implements the st right is the right to get on the vessel in the st place so that didn't happen here because this is a rescue operation so normally the coast guard asks who is the master in the looks for a flag and if any breakfast ration documents presented because those are the three methods under the statute normally they ask before they get on the vessel or they st get on because they're not allowed to be on a foreign nations vessel the whole purple this is this is they did what they had to do to get on the board on the legally but then you know once we start trying to determine the nationality the b stylus based on those facts nobody says a word the master has yes the master has to speak your honor that is what the statute says to me there has to be no but your change in my hypothetical nobody says anything then then they would not of made of claim a verbal claim has to be made if no one says anything then they have not made a verbal claim ok most fisherman are not learned international war how are they supposed to know that they're obligated to say i'm the master or some one inch or arm someone in charge because the statute is not for their interest provision is in order to protect the diplomatic relations of united states and treaty partners the only reason this jurisdictional section comes up is to allocate between the united states and the treaty nation any other nation that might have an inter defects and how this procedure is done are not a defense the statute reason for doing this is an allocation of prosecutorial thirty between the united states and the foreign nation the interests being protected here or the foreign nation's interests as rest recognize and hernande complaint or to resolve the nation to nation it's not about whether the crewmembers can know the magic words because it's not their interest being protected it's the foreign nation's interest being protected united states has to make sure that we're not boarding the fact that the crew members don't know the magic words is not what the statute is aiming for the statute has specific requirements that this court says in a bondo cannot be changed you follow what the statute says as to what constitutes a claim that triggers the foreign nations just says including the you know just because the government didn't meet this requirement of me then you know we can it you know  assume statelessness anyway even though they don't meet one of those provisions of the statute do you except that provision of the i mean that interpretation of the court could affirm on other bases established by the record for example does that is that a no you don't i misunderstood the question do you agree with judge elton agas interpretation of the statute that because it just says includes and doesn't say includes only where the government in my opinion didn't meet the requirement of the because they didn't request the nationality of the show so basically what she said was well because it says  includes you know the fact that they didn't meet this one particular ity of subsection b then they get in anyway is that your interpretation of the statute as well i think the answer is yes but i can try to explain this i'm not again i'm not sure i understood the subclauses one of these a claim has to be made if there is nothing in the record showing the claim was made under be you look if a claim was made under any that would still be a claim so you have to look to see whether a claim was made the government's position was no claim was made because no master made a verbal claim if the master had made a claim or some claim some some valid claim had been made otherwise that the foreign nation could neither confirm nor deny your incidence here that would also be you're not going to get an answer and you can always say well no claim was made because the coast guard acting in good faith your honor wants to protect the united states is diplomatic treaty regime this is this statute implementing complex web of treaties that we deal with foreign governments all the time entire framework of the m v a relies on our cooperation with our treaty partners ensuring that we aren't friends passing on other nations vessels without their consent the coast guard not must ask in order to make sure we maintain we get the information from the foreign the diplomatic courtesy we maintained by checking even when we are not required to you know bondo and hernandez this court has repeatedly recognized that the coast guard can go above and beyond its statutory requirements to ensure that we're maintaining our treaty requirements heart of this case and your honor i respectfully believe that the coast guard went down the line of what the statute provides and only the statute can define whether a valid claim was made nothing the coast guard says or does change is what the statute requires and nothing the coast guard does and honor i'm not sure if i'm able to do a rebuttal because there was no nothing directed to the miranda the post arrest premier and a warning by the government i think that might be right  consequences if no requests were made the consequences are they haven't complied with the statute they're boarding a vessel without you know making the guess it deprives the government of jurisdiction in this case for two reasons but several reasons deprived they don't have jurisdiction under that subsection and they they do not dispute which is the one they rely on which is the one they nationality is a vessel aboard which the master individual in charge fails on request on request of an officer of the united states authorized to enforce applicable provisions of united states law to make a claim of nationality or registry the master is as in my hypothetical is in heaven and it can be addressed to the person in charge exactly and the and that is there is a love in circuit precedent that qualifies your  informs your wrist no your honor and in fact the district court agreed that jurisdiction was not established under our not being in section so i just i do and  in terms of protecting diplomatic relationships i would imagine although we're steering from the plain language of the statute that is there's a requirement placed on an officer that congress wants then to ask  that there's a reason for that rather than having them you know boarding bustles with with impunity and there are other ways to establish jurisdiction those were not established and so the court was left to come up with some other basis but the problem is that there was no other basis established in the record and there is nothing else in the statute that would provide a basis for jurisdiction in this case so thank you thank you thank you very much interesting argument we entered we gave you a hard time but we knew you  prepared so you were ready for us thanks