appropriate venue in airplane crimes i plan to talk about the venue issue first and then turn to the speedy trial act unless the court wants me to do something else rodriguez were you know the supreme court established the constitutional test for venue and that's the essential conduct elements test by which venue is appropriate only in the districts where the conduct of the crime occurred the only conduct element here is the assault itself and this was a simple assault one strike that occurred in one moment of time and it's undisputed that that happened well before the plane entered the centralists of california the government however contends that there are two venue statute which nevertheless created venue in this district  four said for that reason we are the court views then you statutes very narrowly so with that in mind we look at the first statute the government sites which is thirty to thirty eight which applies only to crimes where the  outside of any district and that's not what happened here because of the court's decision bernard the airspace above a diff strip this part of the district for venue purposes so when you have a domestic flight the crime occurred in some district so then you also is an appropriate in this district under thirty seven thirty seven the other case cited by the government because that deals with the continually offenses crimes that are begun in one place and continue through multiple districts here again we have a single strike that occurred in one moment of time it happened in one district council one your theory then if someone were to sexually assault and murder someone in the back of an airplane on the east coast where states are much smaller than here on the west coast and there's no doubt the guy did it he confesses there's d n a but they can't pinpoint whether it was in rhode island or connecticut or new york under your theory he would walk is that right well i guess any case where the government can meet the burden that the constitution puts on them the defendant is is not guilty i don't think that that as the records that we produced in our post trial rule twenty nine motion reflect the fear of the government  really hard to prove venue in a lot of these airplane crime cases just isn't true it's we were able to get records showing where the plane was at every moment of time all the government would have to do is establish through the victim or or through the person reported when it happened particular issues just like there are the particular issues if you want to create a hypothetical were two people are wrestling on the nevada california border and killed some is killed on one side of the border but it's not clear but there are some test to prove it and so the constitution puts step burden on the government and it doesn't get to be relieved of that burden in the hard case in the court shouldn't we adopt a certain we should adopt a rule across the board just to take into account that hypothetical hard case you're going to mean the statute that the government's going to push is thirty to thirty seven and we have that decision from the i think it's that eleventh circuit yes and i'm glad that your honor brought that up there is actually three cases out of two circuits there's eleventh circuit decision in the colleague that's the first one and if you look at that there's no analysis whatsoever in fact it's they could they call thirty to thirty i've been a catch all provision for one venue's hard to prove no citation of that certainly no recognition that a constitutional issues involved and most importantly decided before the supreme court establishes the essential conduct elements trust and rodriguez moreno the two later cases out of the one case from the eleventh circuit which cites are going to tenth circuit case both cite it without any additional analysis whatsoever so really no court has actually looked at this issue certainly post rodriguez moreno and said what does the constitution require here and what are begun in one district in completed another yes there the statute seems to specifically contemplate if you can't pinpoint exactly what needs to be done this case however it's a simple assault correct it occurred within seconds and was ended in seconds so in that situation what do we do the constitution has its requirement i agree with the eleventh circuit case had absolutely no analysis at all and the others just follow the eleventh circuit but how to how do we like take this case in what jurisdiction did this event occur  i can't see that right now but with the resources we provided we can show where the plane is that every time and because the government didn't try to meet their burden they didn't present evidence which i'm sure exists where they could have established pretty down to a pretty certain degree when the crime occurred there was there was evidence a trial about what happened approximately it happened about thirty to forty five minutes before the final call to prepare for landing which itself happens twenty five minutes before landing so we would happen somewhere around the midpoint but i'm sure but we do know that what happened was the victim reported the incident to the flight attendant the flight attendant reported to the captain there's probably a record that would establish that time pretty clearly if the government had just gotten it and from your perspective i gather of course it's the government's burden to indicate the proper venue and that are clear under both the supreme court's law and the score secession and lucky but i will say two to two to the extent that there are maybe problems in some and it appears this court has not adopted that remedy i'm preserving it for possible for the review but certainly reversal of the conviction is required for proper venue no new trial that if that if that were the result yes  now the legislative history behind this statute shows that the senators were concerned about this issue i don't know that it came up i don't think that came up in the briefing in this case but looking at it to the extent that there were transportation and thirty seven thirty to thirty four congress first amended that statute to kind of deal with what what the expert or said wasn't i when johnson so it is sort of a give and take the courts say you know the venue statutes as written now don't allow this and congress can come back and say ok let's see if we can fix the problem by you meant amending things so i think that might be the situation here i don't know whether the congress is still bound by the parameters of the constitution i don't know how much you can do in this context but certainly if this court recognizes as it should that these statutes doe converter vent venue crimes on any district other then the place where the crime actually occurred is certainly something congress could consider whether there is ways to either amend the venue statutes of the criminal statutes themselves to get around that you want to say the balance of your test would thank you very much seem to be altogether clear least everybody in this room the government would argue that the information was clear on its face that venue was premised on the fact that the assault occurred  read you know on or about a certain date within the central district and elsewhere the defendant was on a student and elsewhere i mean yes you said occurred within the central district and that's clearly not true clearly not true everybody knows that right that occurred between minneapolis and los angeles but given the time frame work it couldn't possibly have occurred there so how do you know on the face of the complaint there's a lot of merit there ok for the information  this case in particular what's important to remember here is that there was the face of the complaint and there was also i'm sorry the face of the information there was also the complaint not the complaint that the statement that the f b i special agent had written in support of the violation notice which set forth the assaults had occurred between nine hundred sixty two and ninety minutes before the flight landed my colleague here expressed that the assault occurred at about thirty to forty five minutes before the flight landed it the facts were unclear as to when precisely in time but either way assaulted there were either thirty minutes or sixty or ninety minutes that's not within the central district california when you're coming from minneapolis you're going to a it simply wasn't yes right yes your honor that correct it was not within the airspace of the central district of california the important fact here is that the assault occurred mid flight somewhere between minneapolis and los angeles and that's not that's not what the information said right the information said that the assaults had occurred in route to los angeles that it had occurred in flight en route to los angeles and so the reasonable interpretation of the information was that the flight occurred somewhere else somewhere elsewhere outside of the central district and not that is in fact how defendant herself interpreted that language as evident that trying this in the central district of california is permitted number one constitutionally and in connection with a reasonable interpretation of the two different statutes so if if the court  not agree with the government's waiver argument the fact remains that under rule twelve be the defendant was supposed to file this file a motion for improper venue  pretrial under rule to be because if i may finish your honor because there was information that was recently available to the defendant at that time to put her on notice that this this assault had not occurred in the air she forfeited the issue while we asked that to i think the heart of the issue is under thirty to thirty seven was this transportation this qualifies for a reason why eleventh circuit right or wrong and yes your honor the government would submit that the eleventh circuit is correct that commerce but but but again my question to you is that this was an assault as all its growth was an assault yes ma'am it occurred what does it have to do with interstate commerce the fact that it occurred on an airplane that sync with that because the statute provides that for any offense that involves the transportation of interstate commerce venue is appropriate in any district in which th offense either began or occurred or or and and so the government's position here is that for an assault occurring in the middle of a flight venue is appropriate under thirty t thirty seven eighty either in the district in which the plane it took off to the district or which the plane travel to or the district in which the police statute recording thirty two three seven eight talks about involved in any or imported object or person moves so it's very clear they're talking about something quite different than a solved correct yes the statute does not use the word assault however the statue is talking about offenses that occur on a transportation involving interstate commerce and so the debate but says in any district from through or into which such commerce mail matter or important object or person moves out in what way was an assault a mail matter an important object or person the government submits that the assault was not mail matter was not person however the assault occurred on on an airplane that was involved in their state commerce and that's the way you construe yes your honor and yes and the government would argue that nikolay which my colleague referred to earlier is instructive here in this situation because mccauley indicates that thirty two thirty seven is meant to deal with precisely these sorts of issues it's a catch all provision designed to prevent a crime which has been committed in transit from escaping punishment for a lock a venue again as the record reflects this assault occurred about sixty minutes ninety minutes before it landed in los angeles it's nearly impossible to pinpoint when precisely the assault occurred and based off of what the impossible because people's testimonies that were very because people did do not know exactly when the assault occurred one person testified at the assault occurs sixty minutes before landing another person is that of the assault occurred between thirty to forty five minutes before landing it's also nearly impossible to pinpoint because again we're talking about a plane that is traveling over four hundred miles per hour and moving at a very rapid rate of speed and what with respect counsel i believe the record indicates that when this occurred the flight attendant was notified the flight attendant notified the captain captain i whether or not there's evidence in the record to suggest that they can in fact track it again that test the evidence in the record in this case indicates that the testimony varied about one person i see in time the assault occurred occurred over more than one district and that's the analogy that my colleague talked about the murder and sexual assault but here it's a slap it's an assault ban that occurred it doesn't occur over more than one district so i'm wondering how thirty to thirty seven a implies i see that my time is running out that it might i may answer you can i question and then we're done again the reason that it occurs over multiple districts is because of the fact that the