venue in federal court it goes to the power of the court to to hear a case not the question of whether a defendant has in fact committed a crime under the government's theory in this case for instance the defendant but the government has in one jurisdiction or another but not both and that's because jurisdiction venue is not an element that's simply something where the crime occurred so given that the only difference in this case is that a lesser ultimate source of prosecuting authority is ours prosecute this case that power comes from congress which conferred it by statute to the home rule act and could take it back at any time we also point out in our brief that so in other words you can't get around the double jeopardy clause just by putting different dates on the same crime and if that they but notes and they say we would have a different case if the ohio legislature had provided the joyriding is a separate offense for each day in which a motor supreme court said that's irrelevant it says quote incriminating statements pertaining to pending charges are going admissible at the trial of those charges notwithstanding the fact that the police were also investigating other crimes i amendment is often specific and does not attach until the charges under investigation have been charged formally and the adversarial process has begun both of these rules from the same underlying repeated time and time again in every supreme court case either side of this court that is that the th amendment right to counsel is not to be interpreted to deter police from investigating new or additional crimes as the supreme court wrote in texas the th amendment right to counsel does not negate society's interest in the ability of police to talk to witnesses  suspects even those who have been charged with a crime application of that principle and those two rules to this case demand affirms when the prince george's county police department went didn't know at the time whether the defendant was in fact the culprit or whether as happened so often it simply obtained the gun from the real culprit after that person had discarded it but they went to the d c jail by the defendant  miranda rights the defendant who they were and why they were there and then they proceeded to ask him questions th amendment requires no more now the defendant has two objections st he says the him each of the rights that he had under the th amendment that is that his right to remain silent his right to counsel his right are the fact that anything he said would be used against him in a court of law they paused judge graham found after each of these rights made sure he understood them and acknowledged that before proceeding they then went even further told him who they were told him who they were and why they were there told him they were going to ask him about the gun that he had been found with because it had been investigated by the state and the other one is charged by the federal government here if you don't have an honor there's no dual songs yes there is you're really going to because the people asking the questions the people who the defendant believes actually committed the or the maryland state police there is no question here that the federal government was the ones who asked mr mr medley these questions it was the maryland  have federal charges retroactively months later retroactively rendering unconstitutional an interview conducted by state officials over which no federal official at any control there's nothing like there's no evidence that the state officials were or under the control of the federal government when they went to interview mr met it would be quite odd if a federal charging decision would render that interview unconstitutional in fact the judge as judge king wrote for would it would be unlike any constitutional right if the federal if the decisions of a wet day or month after the interview could come out retroactively turn the interview in unconstitutional that i don't know any rights that's like that and it would and it would do exactly what this court and the supreme court has said should not happen which is to deter police from asking any questions all together think about it from  perspective what what with a book to do he was investigating an attempted murder if the defendant is right just because the the fact that the gun that the defendant that that was the same gun that was involved in his crime means he can't go talk to the go which is exactly the problem that every supreme court case that has been cited to you was trying to avoid the idea that we should not stop police from legitimate investigations into violent crime such as carjacking in attempted murder  i would also just say that the court need not reach this double jeopardy question because the waiver here is so clear it is that right i mean to the point i mean the i mean mr medley it is it it may be because it's not charts that's the escape hatch for lack of a better word but it sure feels that you could till the defendant i'm not talking to you reversed help that after someone is charged the police couldn't go and talk to an individual although arguably in this case because they were defenses that wouldn't apply but but after monday of the louisiana there's no seem quite odd that a completely separate sovereign the maryland state police are not permitted to investigate a completely different crime after having properly advised him of his miranda rights it would be turning the montana case on its head  one crime we're going to do this double jeopardy analysis because we don't want law enforcement to be able to do an end run around the six and that we don't want the cops to be able to say well we only charged him with one gun and not the other gun so we can ask him about the other gu but that's not the case here it is not question that the maryland state police when they went interview mr medley were at all interested in his possession of the gun on the day of the d c robbery or really his possession of the gun other than it is as it related suggested that obviously if there was a firmed of misrepresentation about why they were there or or about the rights really such that it would call into question the intelligence of the waiver that could be a problem and for example in the footnote that mr mcbeath cited to you the supreme court noted the moran case in which the police had held from the defendant the fact that his lawyer was trying to get a hold of him at the time they were interviewing such a keeping a lawyer from him and that the court held that the waiver was nil and void but we have nothing like that i mean if you listen to the things that mr mcbeath talked to you about all of the things that the police told mr medley were unquestionably true they were interested in his d c arrest they were there to talk about the gun and that's because it was related to him attempted homicide and carjacking they were investigating there's no misrepresentation there and they weren't worried about that i'm sorry they were worried about the gun they were concerned about the  with they told him they weren't there for about his arrest and they were they told him affirm they were there about the gun because that's why the only reason they were there so i think they had linking him to the car they told him affirmatively in this is at about th waiver but also want to make clear that the defendant's six minute rights had not attached to the crimes that the police in maryland were investigating and to the contrary rule case in that case the question was whether it's like and like here whether the failure to submit an element of a crime to the jury was a structural error or whether it was subject to you know prejudice review harmless wrister or plain and the supreme court said no failure to even failure to submit an element a crime to a jury is not structural error and it looked at the kinds of things that the court has the very few limited cases where the court  found structural or that being bias of a judge or of the public trial right or racial discrimination in selecting a jury and it's at those kinds of things affect the entire framework of the trial the entirety of each and honor yeah so i did i hadn't and i haven't read the underlying opinion i've only read this report this but this court has applied khan to say that failure or even to have an element in the indictment is not truck because and that's consistent by the way with the federal rules and the rule twelve says it any challenge to an indictment has to be filed before trial would be quite odd i think to say that that rule d doesn't mean anything that there is evidence that he is actually innocent of the knowledge such that the there's a reasonable probability of the outcome would be different then then we go to the th but here we're not anywhere close the defendant not only stupid stipulated at trial that he was a pretty good person but also there was evidence at trial given to the jury that that he upon seeing the police ran holding the gun in his waistband went fled  that coupled with the fact that the defendant served fifty was on parole of the time and served fifteen hours over a decade for nd degree murder in this case which of course would have would be represented to the honor on the spot your question even if you found on the rd prong that there was somehow some actual innocence because you felt that there was a reason that the defendant had met his burden there was a reasonable probability that the outcome in this case would be different which i would say this to the kinds of errors where this court has declined to so notice would make it very clear that this court should not exercise its discretion and notice an error and i'll go back to these cotton cases these opposed to the cases where this court can tell you from my own personal experience it means quite a lot i mean going forward the yacht your honor we are you know put to our burden of proving the element that doesn't mean as is true in any time the supreme court reviews and argument in that case and the supreme court said yes an interest in investigating and charge crimes as well as charge crimes but when they do so they have to have to respect the six men and they say quote in seeking evidence pertaining to pending charges trying to get here they just didn't tell him that the attorney was trying to make this point so it wasn't in the firm and of misrepresentation it was just they withheld information that was relevant to his knowing intelligent behavior of his is right and in any event i think in this your honor there's just no reason for the sector to go to such lengths to disclaim any interest in d c unless what he's trying to do is get that the defendant to believe that what you say to me is not otherwise why say anything at all why not just that evidence to federal agents it's a federal prosecutors and federal prosecutors can introduce it at a federal trial but the script supreme court rejected that doctrine because it obviously creates perverse incentives and they said it doesn't matter where the evidence came from