can you explain what that means wee up to and including the time he reported is given where and when did he deviate from that i generally actually believe it's really that he's in the custody of the attorney general states has to be some as it i'm disappointed that you know in the western district of new york that the deviation from that custody actually took place in the western district of new york so your view is that the only place then you and doesn't return to the button or since the court funny in that case the floor circuit that he was in the constructed custody butner the entire time in that he was just sort of on on loan trial and was not a case that overturned by reason of improper venue my correct about that i think that's right i think his objection was that  yes but i mean one problem is that a a finding that venue is proper in one in one district that and that's involved in the scenario doesn't mean that others are not proper and left that he never never was in new york which was one of the destination points in or that he that he left new york or never got there i mean it seems to me that that that any one of a number of districts in this case would be a proper place to prosecute if it could be shown that he was not there when or never went there or left there and then in appropriate manner including the place that he was designated to rise to i suppose i just respectfully disagree again with your honor i mean i do think that's the distinction that the circuit is getting to you in the reg case which is the difference between you know sort of the affirmative act of breaching the limits of confinement and where that takes place and the act constitution of the crime of escape versus the pa precedents that supports your your position because a case that simply says that that a district that's consistent with your argument that holds consist of three with your argument that such a district is a proper district doesn't mean that others are not proper no i agree with that and i don't think that between the two of us the government nor i had found a case which is held in in in  on an escape charge there is only sort of there is only you know one exclusive potential district of prosecution  in the district of columbia and the question becomes in that case and make some false or allegedly false statements on those farms and the question becomes in that case you know what is the venue for a proper district what the proper district of the prosecution can it be colorado or and district of columbia or or district of columbia alone in the court home because it has to be within you know in an agency or jurisdiction of there was extended discussion of whether you know simply going virtue of being laundering it escaped everything becomes relevant context of the court clearly understood that that issue was in a way notwithstanding the time that was would that he would have the ability d at the time when this becomes pregnant at the time when when he is called upon to make some contribution toward the expenses of of this therapy that he would be able to go before the judge and and ask the judge to make the determination that he just does not have the financial resources to make the claim so i think as to your first question the answer is it varies by case i mean clearly there are going to be some cases may deal one minor you know white collar case or something going on talk about this case ok in th multimillionaire one can assume but if he's not one cannot make the make that prediction as to the future given that he was instructed that he should obtain employment at that time right in my than placing the onus on the inmate to come back after twenty years or whatever it is and seek a modification of that condition it's simply not to enter and i don't want to sound too accusatory nothing but my intent to simply not to enter an order that isn't in statutory compliance to begin with because after all the court has exactly the same ability and probation has exactly the same ability to seek an appropriate modification in that appropriate time when terminate june can be made so i think the issue before the court is whether you know where that where that all of those onus lies should we commit the imposition of a condition that can't be justified  to go before the court to raise the issue assuming that assuming that he's told to pay ten dollars a month towards whatever or or pay more than that what is the state of the law with respect to his ability to go before the judge to raise the question that you're saying needs to be answered well i think i think he could seek a modification then and getting the subsection thirty five or eighty three you'll forgive me but i need but again you know the question that's presented here is not whether any ultimate financial determination will be something that kiki can bear explained by the witnesses that trial was in rochester the only place he was authorized to be confined at the end or to transfer period was to be away at rochester so the escape didn't really occur when he walked away from them but it was when he wasn't at his designated place of confinement by the end of that transfer period which again was the deal and rochester and several other circuit courts have reached the conclusion that when an inmate this case during a transfer the appropriate venue  but the idea is on point and receive focus on where exactly he left his designated route is misplaced he insists that these cables weaken the boundaries if about to marry but that's not what he was charged with or what so if we look at the testimony from brandon colton and toddy burgess the entire time he was in the custody of the bureau of prisons from the time he was a us purely even on the bus i think there was an exchange with the trial a with a asking so hardship no prejudice nothing about venue in the western district of new york that proved detrimental to his defense and the issue wasn't even raised until the close of the government's case and i see that my three minute has expired so  i can take questions on this and move on to another issue that mr she wasn't or isn't able to pay a fine and so that the court didn't make a finding of you know i think funds being available and in fact  the country not only did the court not make such a fine they get it found to the contrary with respect to the fine so to dress that of course our primary position is that the issue isn't right however the district court assessment so that still seems to be in tension with the statute which says that the court whenever the court finds that the funds are available and the court didn't and in fact that what you know just s arized yes he has you know x amount of dollars available and therefore he can pay by amount towards that cause we don't know we don't know what his what his ability what he what his fund will look like in twenty or forty years and we don't know what the cost of treatment will be in twenty dollars or forty years we don't even have what the current costs are because no record of that was made so the district court would have just been speculating were it to say i think you'll have some money at the end of this where i don't think you'll have the money at the end of this and the same with the cost of the contribution it's just you i don't think that you can make that kind of detail finding at this point but he did point he did you can do it to the extent that if you have to pay a fine for example right now no because that can that can be determined now based on his current that you can't pay a fine that will be the be that's and so right well when when will it be like them under but under the could kind of evaluate in a better position but but he just didn't make that record below and the statutory sentencing scheme and the federal rules both anticipate modification three thousand five hundred and eighty three and then federal rule thirty two point one b both anticipate that so it must show so so if the court had done some kind of assessment of what the cost would be today are you saying it would be right even though it doesn't the court but it's occurs to me i just live out here that with respect to this point the order that the judge that the status of the order that exists in this case is not self accusing as it might be if the judge said that it had specified in the mount without making that determination in order to contribute to the cost leaves completely open how much to contribute with so that it can't be it cannot be executed on temple at the relevant time somebody specifies either the courts d or probation whoever it is at least at least in the initial instance specifies some amount  and so it it and mean it it seems to me that if the court did not impose this condition at this time it wouldn't be eligible to be imposed at a later time it's either and so the court if the court wants it to be on the table at the time the court has to do it now or at least in an indefinite amount that raises the question for the future how much is going to be the amount and is it is that amount within his means to pay right i would agree with them on that point there there there is a point between putting the defendant or do you see a person on notice and  you know his approach really supervision find him a treatment program obviously communicate with him about that and if it appears that you know the cost or that of the services or his cost contribution are going to be problematic or if you can't find jury with respect to the defendant being in the custody of the marshal because it's my impression that while i don't think this is something that would call for overturning the conviction it does seem to me that it is preferable not to the judge not to give such an instruction which the judge characterized as being given for the protection of the december and not to give an instruction that is harmful to the d for the defendant's protection without st having asked the defendant whether he would like to have such an instruction given there are many instructions that can be characterized as as being for the protection of the defendant but which many many defendants would very much prefer not to have given because they tend to emphasize things that the defendant doesn't want to have called to the jury's attention  so what you have to say on that subject absolutely are absolutely but the standard of review here is abuse of discretion so it did absolutely absolutely what absolutely that but that the best that practice may be to inquire beforehand however this case is entirely about custody this i think it's almost uniquely among you the other kind of charge about custody i think it's an it's in the indictment it's the only charge to the jury and this court cautionary instruct you know this the court's cautionary instruction was just an extension of the instruction it gave about him having been convicted of a felony instruction that he didn't object to this entire trial was about custody so i think if ever there was a set of circumstances where knowing that he's in custody wouldn't have prejudice to carry this is that an important lesson i think mike let me put my question a little bit differently what what should be done either by this court or by u s attorneys offices to ensure that judges don't give instructions like this for the defendants protection without st asking the defended if the blue coat and a church as a volunteer at the marshall so you know there's there was an indicator in this case there was an indication of the reading the tears had had an inkling of what was going on so might have been a better practice to to bed and take a pause and see how they wanted to proceed perhaps but it was not an abuse of discretion which is the standard of review here there's there's no evidence that jurors ever saw him in handcuffs there's no evidence that they ever saw him in prison guard and he did not make a specific showing that he was harmed by the knowledge of the jury's knowledge of him being in custody because the entire case was about custody so without that showing of you know before the district court it was it was within its discretion it's perfectly true that that amount could be as little as you know one cent per month or it could be hundreds of dollars a month and we just don't know but that is a question of execution rather than an obligation  and so employing the obligation at a time when there are who would be authorized to set the amount i think that i think that most circuits of how and  guess i wouldn't dispute that that subject you ultimately judicial review would say i think the defendant would have a right to sue but it should be expressed in the condition as well the probation could make that kind of at least initial administrative determination but the actual obligation existing obviously provision is going to make some kind of determination based on the language as it exists at the time of the nd point just that was given first of all i don't think it's true to say that anybody was speculating about whether he was in custody or not you know i think the court drew attention to that and the supreme court in holbrook recognized that that court security guards can draw that kind of attention but the content of the instruction here you say that yes you can toss but don't consider it is it is akin to saying don't think about criminal history category points i would just say that although it is some sort of plain error do you obviously but primarily what we're talking here about a well worn kind of t identify that particular hardship can you tell us if there's a some particular prejudice or hardship i don't think that there is i don't think that  ok other than others that i mean the sort of lack of precision and this sort of you know potential i don't want to accuse the government of anything but the potential for a forum shopping if there's not going to be a close tab there between the contact observations that a person who is seen in the courtroom coming in the same time as the defendant does means that the jury has has drawn the conclusion or some members of the jury have drawn the conclusion that he's in custody isn't necessarily logical marshals are very often present around around court proceedings i have many many times in my life entered in my professional life entered rooms somebody identified a person who came in at the same time as the defendant as being a marshal doesn't necessarily mean the jury has drawn the conclusion that he's in custody i think it i don't think it's of great in this case but i do think it would have been better if the d judge had had asked the defendant before giving the instruction and i would only note and i appreciate that i would only know that obviously the entire question would have been avoided completely had the defendant simply been you know could have been avoided had the defendant been seated before the veneer was brought in which is typically the practice in buffalo and i'm not sure why it isn't done that way in the rochester division to be