Good morning, Your Honours. May it please the court. My name is Herini Regrapathy from the federal defenders on behalf of the appellant, Mr. Cecilia Kaisedo-Querro. The government chose to hail Mr. Kaisedo into the Southern District of California to be prosecuted under United States drug laws. But Mr. Kaisedo is a Colombian national with no ties to the U.S
. He was arrested aboard the imporio, a Colombian flag vessel headed toward Panama, and he was found in international waters off the coast of Colombia. But rather than leaving enforcement to the Colombian or Panamanian authorities, the government chose to prosecute him in the United States, all the while failing to establish a sufficient nexus. So in the district court, the primary way the government sought to get around this attenuated nexus was to call its expert witness, DEA Special Agent Wasser. And by the way, he was not challenged as an expert. His expertise was not challenged to trial court levels, not correct. Correct. He was certified as an expert, but the scope of his certification was limited to, he was qualified as an expert on the subject of Colombian narcotics trafficking to the United States. And so we didn't challenge the scope of his certification on that grounds
. But what was argued below is part of the motion to dismiss was that missing from his expertise was he wasn't an expert on Colombian narcotics trafficking to either Europe or West Africa. And the government in fact acknowledged that below. And so what he got involved in cases once the United States became involved in prosecutions and presumably once the nexus to the United States has already been established. But he acknowledged that he wasn't involved in seizures, investigating seizures of cocaine that were going to Europe or going to West Africa. And so I think this is important because it shows that there was a non-random sample in what he was basing his opinion. It's as though he was starting from a stack deck of cards and he was apining on the basis of that stack deck. So he didn't see the other half of the equation which was narcotics going from Colombia's Pacific coast to Europe or West Africa. We expressed opinions that fastboats just weren't used to transport cocaine or other illegal drugs to Europe or West Africa
. I think he said that something that they never see and he hadn't heard of it in consultation. So he did express an opinion and you're saying that opinion was unqualified and uncertifiable? I think the opinion is of limited probative value and it doesn't constitute a nexus by a proponderance of the evidence. And there are I think three reasons why that's the case. One is that his opinion was based on an extremely limited sample size. He acknowledged that he only investigated six different trafficking organizations out of the many different trafficking organizations operating along Colombia's Pacific coast. And so he wasn't familiar with the methods and roots used by a majority or even all of the drug trafficking organizations operating along Colombia's Pacific coast. So there's the issue of the sample size. And then I think even if the sample size was sufficient, there's the issue of the scope of his expertise in knowledge
. As I was saying, he wasn't an expert on Colombian trafficking to Europe or West Africa. And so there was a sort of sampling bias that occurred in his opinion. And then I think the third problem was that again as the government acknowledged the scope on which he was certified as an expert by the district court was just on trafficking to the United States. And so given that limited scope, I don't think his opinion carries the probative weight that the district court accorded to it because he just simply wasn't qualified to testify about narcotics trafficking to Europe. So your contention is that there was a failure of proof that it was insufficient by itself. He clearly is qualified to say narcotics coming off the west coast of Colombia headed in a northwest direction on smaller but very, very fast boats is the kind of stuff that ends up in the United States. Your problem is that it wasn't able to say and I can exclude the possibility or I can at least tell you that it's a very unlikely possibility that that traffic coming in that direction would have ended up in Europe. Correct
. So the government's burden here is to show more likely than not that the imperial load was destined for the United States. The burden of proof is of preponderance. And he was able to show that one possible destination was the United States, but he wasn't able to show that that possibility was more likely or he wasn't able to exclude the possibility that the drugs were also going to Europe. Even given two facts, the extensive drug use in the United States, the demand for cocaine in the United States. And the fact that it's coming off of the west coast of Colombia in an unlikely direction and headed towards an area of Panama that is a staging area for the United States. Correct. Well, I actually think those two factors, we don't dispute those facts, but the significance of those facts, I think is I would point to a contrary interpretation. So the United States consumes 36% of the world's cocaine, but it was also established that Europe and West Africa together consumed 34%
. So it's a mere 2% difference in the size. And the government below described a 4% differential in size as quibbling. And so I would argue that a 2% differential in size. But suppose that those things were in aquapoys. What do we do with the fact that it's coming off the west coast of Colombia instead of the north east coast? And that it's headed towards again a staging area of Panama where it's unlikely the speedboat is not going to go through the canal. Well, I think coming off the west coast doesn't say much because Agent Wasser himself acknowledged that there was this well-established smuggling corridor from the Pacific coast of Colombia through the canal to Europe. And so it comes down to the fact that essentially the boat was going slightly west of the Panama Canal. But yeah, there's also the fact that they would have that the fast boats are not going to go through me to Florida
. So they're not going to go through the locks at Panama. It's going to have to be offloaded someplace and then unloaded onto something much larger to get it through the locks. Correct. And I don't think the evidence that was established excludes that possibility because what we have was 494 kilograms found aboard the GoFAST, which was actually Agent Wasser said a typical GoFAST load is generally 1800 kilograms. And so this was much smaller than a typical load suggesting that it was going to be stockpiled on land. An aggregate load was going to be accumulated and that aggregate load would be transferred onto a container vessel. And we know from Agent Wasser's testimony that container vessels leave Panama. They go through the canal and they move to Europe
. And so the GoFAST vessel, the evidence is consistent with the GoFAST vessel making the first leg of the journey toward Panama where the cocaine would then be transferred onto land, stockpiled, and then subsequently moved on to container vessel and transported through the canal to Europe. What do we make of the fact that the defendant put on no contrary evidence? Anything? I don't think so, Your Honor, because the burden of proof here is on the government. And Defense Council did submit six articles below into evidence that showed that the cocaine does leave the Pacific Coast of South America on container vessels and go through the canal to Europe. So we did present some evidence. We didn't present live evidence. I guess I should have said no testimony. But I don't think that that changes the calculus here because again, it's the government's burden of proof here. But if the articles that you supplied suggest that containers leave the west coast of Colombia, this is not a container
. Those are much larger ships that can go through the locks. Correct. But Agent Wasser, that's true. But I think where we get the GoFAST vessel in conjunction with containers is from Agent Wasser's own opinion. And he stated that GoFAST vessels are often used as an intermediary mode of transport, and they're used on the first leg of a journey. And it's frequent for the cocaine to then be taken off of the GoFAST vessel, stockpiled on land, and moved to a larger vessel that can then move larger loads of cocaine to its final destination. But I thought the record shows that Agent Wasser indicated that that is something they just don't see is using GoFAST vessels in connection with cocaine that's ultimate destination is in Europe or West. My understanding of the record was that his testimony was that GoFAST vessels don't move directly from the Pacific coast of Colombia to Europe
. So the GoFAST vessel itself wouldn't be the vessel that was traversing the canal. The load would then have to be moved onto a larger container vessel. And if I could please, I've got a question that would you please stop the clock because I don't want this to come off of your time, because it's an away off to one side. I mean, we see a lot of these cases, not these specific facts, but cases where there's an interception of a vessel offshore and they throw the contraband overboard in floats. My question is why didn't they attach concrete to each one of these things so they sink? Because at that point all you have is an empty vessel and they saw them throw packages overboard but we don't know what they are. Why don't these guys sink them? I don't get it. I guess they don't listen to the oral argument and read the cases and they should learn from that in the future, but that's a good question. Okay. Well, it's often one side on this case. Okay. So I didn't take that off your time. You've got a minute left. Thank you very much. May I please the court, Aaron Clark, for the United States. Your Honor, is the cocaine season this case was headed for the United States. That was a factual finding made by the district court and that factual finding allowed the court to then determine the legal sufficiency of the next system
. Well, it's often one side on this case. Okay. So I didn't take that off your time. You've got a minute left. Thank you very much. May I please the court, Aaron Clark, for the United States. Your Honor, is the cocaine season this case was headed for the United States. That was a factual finding made by the district court and that factual finding allowed the court to then determine the legal sufficiency of the next system. Now, is it a factual finding in which we must give deference as if this were sort of conflicting, he said, she said, I mean, there are no disputed facts. The question is what do we conclude from the facts, isn't that right? Well, you're on, I didn't think there were many dispute-disputed facts, though it seems this morning that we have some dispute about what it is that Agent Wasser actually said. Well, I got that part, but I mean, he said what he said. Nobody is there saying Agent Walker is wrong about what he said in the sense of he's lying. So I'm trying to figure out the standard review, obviously. You'd much prefer a clear error. I got that. Well, for the district court's factual findings, Your Honor, yes
. Now, is it a factual finding in which we must give deference as if this were sort of conflicting, he said, she said, I mean, there are no disputed facts. The question is what do we conclude from the facts, isn't that right? Well, you're on, I didn't think there were many dispute-disputed facts, though it seems this morning that we have some dispute about what it is that Agent Wasser actually said. Well, I got that part, but I mean, he said what he said. Nobody is there saying Agent Walker is wrong about what he said in the sense of he's lying. So I'm trying to figure out the standard review, obviously. You'd much prefer a clear error. I got that. Well, for the district court's factual findings, Your Honor, yes. I think that clear error is the appropriate standard of review. And one of the factual findings that he made in this case was that the cocaine was coming to the United States. It was an inferential fact that he derived from the other facts that had been established here. I understand that there is still a nobo review as to whether those factual determinations become a preponderance of the evidence, but those are two separate findings that the court made here. The standard for whether or not they're sufficient nexus is not if the drugs were coming to the United States, although that can be sufficient. It has been laid out in Zacharovitz whether an attempted transaction aimed at causing criminal acts within the United States or that the plan for shipping drugs was likely to have effects in the United States. The fact that it was coming to the United States is one of the effects that we've shown here. And it's the government's position that that finding that it was coming to the United States should be reviewed for a clear error
. I think that clear error is the appropriate standard of review. And one of the factual findings that he made in this case was that the cocaine was coming to the United States. It was an inferential fact that he derived from the other facts that had been established here. I understand that there is still a nobo review as to whether those factual determinations become a preponderance of the evidence, but those are two separate findings that the court made here. The standard for whether or not they're sufficient nexus is not if the drugs were coming to the United States, although that can be sufficient. It has been laid out in Zacharovitz whether an attempted transaction aimed at causing criminal acts within the United States or that the plan for shipping drugs was likely to have effects in the United States. The fact that it was coming to the United States is one of the effects that we've shown here. And it's the government's position that that finding that it was coming to the United States should be reviewed for a clear error. Now, there's been some dispute here about what it is that Agent Wasser seems to have said. He was specifically asked in this evidentiary hearing about cocaine that had been shipped by GoFest vessels from the Western Coast of Columbia. He had been asked if in any of his experience in his 500-plus interviews that he had done in his consultation with authorities in these foreign nations, whether he had ever heard of cocaine leaving from the Western Coast of Columbia in a GoFest vessel headed in the Northwest direction that was ultimately headed to Europe or West Africa. And he said unequivocally no. I've never heard of that. And he further said that's counterintuitive. It's just something that we don't see. He further said, Your Honors, that every time he had asked a facilitator that he had debriefed or a cell leakant, a leader who was responsible for shipping these cocaine by the GoFest vessels, every time he'd asked them about a load that had been seized or lost, that had been shipped by GoFest vessel in the Western Coast of Columbia, they had told him that that cocaine was ultimately headed to the United States
. Now, there's been some dispute here about what it is that Agent Wasser seems to have said. He was specifically asked in this evidentiary hearing about cocaine that had been shipped by GoFest vessels from the Western Coast of Columbia. He had been asked if in any of his experience in his 500-plus interviews that he had done in his consultation with authorities in these foreign nations, whether he had ever heard of cocaine leaving from the Western Coast of Columbia in a GoFest vessel headed in the Northwest direction that was ultimately headed to Europe or West Africa. And he said unequivocally no. I've never heard of that. And he further said that's counterintuitive. It's just something that we don't see. He further said, Your Honors, that every time he had asked a facilitator that he had debriefed or a cell leakant, a leader who was responsible for shipping these cocaine by the GoFest vessels, every time he'd asked them about a load that had been seized or lost, that had been shipped by GoFest vessel in the Western Coast of Columbia, they had told him that that cocaine was ultimately headed to the United States. And that's a fact that is not discussed much in appellance briefing, but that the court credited and said he was well informed and well-reasoned in his opinions. What I think, what I don't want to be lost here, Your Honors, is that if we make this case just about the markings, and it's always about the markings, it's always about whether or not they're navigational charts, we are essentially giving a roadmap that can be controlled to the people who are shipping these drugs to the United States. It's in the record, it's not disputed that once they were spotted by the United States Coast Guard, the crew members aboard the imporio threw the bales of cocaine into the water. And they threw the radio that they'd been using to communicate with their superiors into the water. One of the person who was leading the voyage or driving the vessel also apparently threw his compass into the water. So I don't, I would hope that we would not put quick thinking defendants in a position where they can reward themselves and avoid prosecution in the United States simply by not marking the packages or changing the markings every time or quickly throwing anything that might be damaging to them into the water before they can be apprehended by the Coast Guard. Yeah, maybe I hope they don't hear me questioning why I need to make the thing sink. Well, you're on a, we can use reason to come and sense to try to figure that out, but if they were to, obviously the cocaine is buoyant in there, and if they're to weight it down sufficiently that it will sink, then they can't carry as much cocaine on board those vessels
. And that's a fact that is not discussed much in appellance briefing, but that the court credited and said he was well informed and well-reasoned in his opinions. What I think, what I don't want to be lost here, Your Honors, is that if we make this case just about the markings, and it's always about the markings, it's always about whether or not they're navigational charts, we are essentially giving a roadmap that can be controlled to the people who are shipping these drugs to the United States. It's in the record, it's not disputed that once they were spotted by the United States Coast Guard, the crew members aboard the imporio threw the bales of cocaine into the water. And they threw the radio that they'd been using to communicate with their superiors into the water. One of the person who was leading the voyage or driving the vessel also apparently threw his compass into the water. So I don't, I would hope that we would not put quick thinking defendants in a position where they can reward themselves and avoid prosecution in the United States simply by not marking the packages or changing the markings every time or quickly throwing anything that might be damaging to them into the water before they can be apprehended by the Coast Guard. Yeah, maybe I hope they don't hear me questioning why I need to make the thing sink. Well, you're on a, we can use reason to come and sense to try to figure that out, but if they were to, obviously the cocaine is buoyant in there, and if they're to weight it down sufficiently that it will sink, then they can't carry as much cocaine on board those vessels. And it would be much harder to throw off if they're all weighted with concrete. Yeah. It cannot be clear error for the district court to have credited Agent Wassert testimony. As we've heard here this morning, it was not disputed. Defense took some of his statements and tried to, to twist them to open up the possibility that a vessel of cocaine on a go fast vessel loaded with cocaine might have been headed to Panama. And then loaded onto a container vessel and then shipped backwards toward the Panama Canal. But that is not something that was ever in the experience of Agent Wassert he had ever heard of. It was something that ran counterintuitive and against common sense
. And it would be much harder to throw off if they're all weighted with concrete. Yeah. It cannot be clear error for the district court to have credited Agent Wassert testimony. As we've heard here this morning, it was not disputed. Defense took some of his statements and tried to, to twist them to open up the possibility that a vessel of cocaine on a go fast vessel loaded with cocaine might have been headed to Panama. And then loaded onto a container vessel and then shipped backwards toward the Panama Canal. But that is not something that was ever in the experience of Agent Wassert he had ever heard of. It was something that ran counterintuitive and against common sense. And I think that it's been clearly established here that there was, that there was an exit to the United States and that the court should affirm the district court's really here. Absent any further questions, Your Honors? I'm prepared to weigh the rest of my time. Thank you. Response. Briefly, Your Honors, two points. Regarding the standard of review, I think the issue is resolved by United States versus Davis. And in that court, excuse me, in that case, the court held that the question of the application of the maritime drug law enforcement act to undisputed facts is reviewed denovo. It's a mixed question of fact in law, which is reviewed denovo
. And I think that it's been clearly established here that there was, that there was an exit to the United States and that the court should affirm the district court's really here. Absent any further questions, Your Honors? I'm prepared to weigh the rest of my time. Thank you. Response. Briefly, Your Honors, two points. Regarding the standard of review, I think the issue is resolved by United States versus Davis. And in that court, excuse me, in that case, the court held that the question of the application of the maritime drug law enforcement act to undisputed facts is reviewed denovo. It's a mixed question of fact in law, which is reviewed denovo. And there, the appellant was raising the exact same contention that we're raising here, whether on undisputed historical facts, was there sufficient nexus to survive due process in the court applied a denovo analysis? Well, what do you make of the mediate case that indicated it was clear that standard review was clear error with respect to finding that some portion of drugs would enter the United States? I would say that to that, to the extent that it is clear error, I think that we survived that analysis for three for the reasons that I discussed previously, which is that Agent Wasser's opinion was limited. And my opponent discussed why Agent Wasser had never seen drugs going from the Western Coast of Columbia to Europe. But again, I think that's a reflection of the limited sample on which he based his opinions. He was a United States law enforcement agent. He only saw cocaine seizures that were headed to the United States. And so his opinion was necessarily flawed because it wasn't based on a representative sample. And then lastly, to the extent that today's decision would somehow give a loophole to drug traffickers, I think the reverse policy argument could also be made that by choosing not to prosecute drug related crimes that have no nexus to the U.S
. And there, the appellant was raising the exact same contention that we're raising here, whether on undisputed historical facts, was there sufficient nexus to survive due process in the court applied a denovo analysis? Well, what do you make of the mediate case that indicated it was clear that standard review was clear error with respect to finding that some portion of drugs would enter the United States? I would say that to that, to the extent that it is clear error, I think that we survived that analysis for three for the reasons that I discussed previously, which is that Agent Wasser's opinion was limited. And my opponent discussed why Agent Wasser had never seen drugs going from the Western Coast of Columbia to Europe. But again, I think that's a reflection of the limited sample on which he based his opinions. He was a United States law enforcement agent. He only saw cocaine seizures that were headed to the United States. And so his opinion was necessarily flawed because it wasn't based on a representative sample. And then lastly, to the extent that today's decision would somehow give a loophole to drug traffickers, I think the reverse policy argument could also be made that by choosing not to prosecute drug related crimes that have no nexus to the U.S. were actually upholding due process, were promoting principles of comedy and fundamental inferences. And for those reasons, I would ask that this court vacate the conviction and directions to dismiss the indictment. Thank you. Okay, thank you very much. Thank both sides for their help of argument. The four-going case is now submitted for decision.
Good morning, Your Honours. May it please the court. My name is Herini Regrapathy from the federal defenders on behalf of the appellant, Mr. Cecilia Kaisedo-Querro. The government chose to hail Mr. Kaisedo into the Southern District of California to be prosecuted under United States drug laws. But Mr. Kaisedo is a Colombian national with no ties to the U.S. He was arrested aboard the imporio, a Colombian flag vessel headed toward Panama, and he was found in international waters off the coast of Colombia. But rather than leaving enforcement to the Colombian or Panamanian authorities, the government chose to prosecute him in the United States, all the while failing to establish a sufficient nexus. So in the district court, the primary way the government sought to get around this attenuated nexus was to call its expert witness, DEA Special Agent Wasser. And by the way, he was not challenged as an expert. His expertise was not challenged to trial court levels, not correct. Correct. He was certified as an expert, but the scope of his certification was limited to, he was qualified as an expert on the subject of Colombian narcotics trafficking to the United States. And so we didn't challenge the scope of his certification on that grounds. But what was argued below is part of the motion to dismiss was that missing from his expertise was he wasn't an expert on Colombian narcotics trafficking to either Europe or West Africa. And the government in fact acknowledged that below. And so what he got involved in cases once the United States became involved in prosecutions and presumably once the nexus to the United States has already been established. But he acknowledged that he wasn't involved in seizures, investigating seizures of cocaine that were going to Europe or going to West Africa. And so I think this is important because it shows that there was a non-random sample in what he was basing his opinion. It's as though he was starting from a stack deck of cards and he was apining on the basis of that stack deck. So he didn't see the other half of the equation which was narcotics going from Colombia's Pacific coast to Europe or West Africa. We expressed opinions that fastboats just weren't used to transport cocaine or other illegal drugs to Europe or West Africa. I think he said that something that they never see and he hadn't heard of it in consultation. So he did express an opinion and you're saying that opinion was unqualified and uncertifiable? I think the opinion is of limited probative value and it doesn't constitute a nexus by a proponderance of the evidence. And there are I think three reasons why that's the case. One is that his opinion was based on an extremely limited sample size. He acknowledged that he only investigated six different trafficking organizations out of the many different trafficking organizations operating along Colombia's Pacific coast. And so he wasn't familiar with the methods and roots used by a majority or even all of the drug trafficking organizations operating along Colombia's Pacific coast. So there's the issue of the sample size. And then I think even if the sample size was sufficient, there's the issue of the scope of his expertise in knowledge. As I was saying, he wasn't an expert on Colombian trafficking to Europe or West Africa. And so there was a sort of sampling bias that occurred in his opinion. And then I think the third problem was that again as the government acknowledged the scope on which he was certified as an expert by the district court was just on trafficking to the United States. And so given that limited scope, I don't think his opinion carries the probative weight that the district court accorded to it because he just simply wasn't qualified to testify about narcotics trafficking to Europe. So your contention is that there was a failure of proof that it was insufficient by itself. He clearly is qualified to say narcotics coming off the west coast of Colombia headed in a northwest direction on smaller but very, very fast boats is the kind of stuff that ends up in the United States. Your problem is that it wasn't able to say and I can exclude the possibility or I can at least tell you that it's a very unlikely possibility that that traffic coming in that direction would have ended up in Europe. Correct. So the government's burden here is to show more likely than not that the imperial load was destined for the United States. The burden of proof is of preponderance. And he was able to show that one possible destination was the United States, but he wasn't able to show that that possibility was more likely or he wasn't able to exclude the possibility that the drugs were also going to Europe. Even given two facts, the extensive drug use in the United States, the demand for cocaine in the United States. And the fact that it's coming off of the west coast of Colombia in an unlikely direction and headed towards an area of Panama that is a staging area for the United States. Correct. Well, I actually think those two factors, we don't dispute those facts, but the significance of those facts, I think is I would point to a contrary interpretation. So the United States consumes 36% of the world's cocaine, but it was also established that Europe and West Africa together consumed 34%. So it's a mere 2% difference in the size. And the government below described a 4% differential in size as quibbling. And so I would argue that a 2% differential in size. But suppose that those things were in aquapoys. What do we do with the fact that it's coming off the west coast of Colombia instead of the north east coast? And that it's headed towards again a staging area of Panama where it's unlikely the speedboat is not going to go through the canal. Well, I think coming off the west coast doesn't say much because Agent Wasser himself acknowledged that there was this well-established smuggling corridor from the Pacific coast of Colombia through the canal to Europe. And so it comes down to the fact that essentially the boat was going slightly west of the Panama Canal. But yeah, there's also the fact that they would have that the fast boats are not going to go through me to Florida. So they're not going to go through the locks at Panama. It's going to have to be offloaded someplace and then unloaded onto something much larger to get it through the locks. Correct. And I don't think the evidence that was established excludes that possibility because what we have was 494 kilograms found aboard the GoFAST, which was actually Agent Wasser said a typical GoFAST load is generally 1800 kilograms. And so this was much smaller than a typical load suggesting that it was going to be stockpiled on land. An aggregate load was going to be accumulated and that aggregate load would be transferred onto a container vessel. And we know from Agent Wasser's testimony that container vessels leave Panama. They go through the canal and they move to Europe. And so the GoFAST vessel, the evidence is consistent with the GoFAST vessel making the first leg of the journey toward Panama where the cocaine would then be transferred onto land, stockpiled, and then subsequently moved on to container vessel and transported through the canal to Europe. What do we make of the fact that the defendant put on no contrary evidence? Anything? I don't think so, Your Honor, because the burden of proof here is on the government. And Defense Council did submit six articles below into evidence that showed that the cocaine does leave the Pacific Coast of South America on container vessels and go through the canal to Europe. So we did present some evidence. We didn't present live evidence. I guess I should have said no testimony. But I don't think that that changes the calculus here because again, it's the government's burden of proof here. But if the articles that you supplied suggest that containers leave the west coast of Colombia, this is not a container. Those are much larger ships that can go through the locks. Correct. But Agent Wasser, that's true. But I think where we get the GoFAST vessel in conjunction with containers is from Agent Wasser's own opinion. And he stated that GoFAST vessels are often used as an intermediary mode of transport, and they're used on the first leg of a journey. And it's frequent for the cocaine to then be taken off of the GoFAST vessel, stockpiled on land, and moved to a larger vessel that can then move larger loads of cocaine to its final destination. But I thought the record shows that Agent Wasser indicated that that is something they just don't see is using GoFAST vessels in connection with cocaine that's ultimate destination is in Europe or West. My understanding of the record was that his testimony was that GoFAST vessels don't move directly from the Pacific coast of Colombia to Europe. So the GoFAST vessel itself wouldn't be the vessel that was traversing the canal. The load would then have to be moved onto a larger container vessel. And if I could please, I've got a question that would you please stop the clock because I don't want this to come off of your time, because it's an away off to one side. I mean, we see a lot of these cases, not these specific facts, but cases where there's an interception of a vessel offshore and they throw the contraband overboard in floats. My question is why didn't they attach concrete to each one of these things so they sink? Because at that point all you have is an empty vessel and they saw them throw packages overboard but we don't know what they are. Why don't these guys sink them? I don't get it. I guess they don't listen to the oral argument and read the cases and they should learn from that in the future, but that's a good question. Okay. Well, it's often one side on this case. Okay. So I didn't take that off your time. You've got a minute left. Thank you very much. May I please the court, Aaron Clark, for the United States. Your Honor, is the cocaine season this case was headed for the United States. That was a factual finding made by the district court and that factual finding allowed the court to then determine the legal sufficiency of the next system. Now, is it a factual finding in which we must give deference as if this were sort of conflicting, he said, she said, I mean, there are no disputed facts. The question is what do we conclude from the facts, isn't that right? Well, you're on, I didn't think there were many dispute-disputed facts, though it seems this morning that we have some dispute about what it is that Agent Wasser actually said. Well, I got that part, but I mean, he said what he said. Nobody is there saying Agent Walker is wrong about what he said in the sense of he's lying. So I'm trying to figure out the standard review, obviously. You'd much prefer a clear error. I got that. Well, for the district court's factual findings, Your Honor, yes. I think that clear error is the appropriate standard of review. And one of the factual findings that he made in this case was that the cocaine was coming to the United States. It was an inferential fact that he derived from the other facts that had been established here. I understand that there is still a nobo review as to whether those factual determinations become a preponderance of the evidence, but those are two separate findings that the court made here. The standard for whether or not they're sufficient nexus is not if the drugs were coming to the United States, although that can be sufficient. It has been laid out in Zacharovitz whether an attempted transaction aimed at causing criminal acts within the United States or that the plan for shipping drugs was likely to have effects in the United States. The fact that it was coming to the United States is one of the effects that we've shown here. And it's the government's position that that finding that it was coming to the United States should be reviewed for a clear error. Now, there's been some dispute here about what it is that Agent Wasser seems to have said. He was specifically asked in this evidentiary hearing about cocaine that had been shipped by GoFest vessels from the Western Coast of Columbia. He had been asked if in any of his experience in his 500-plus interviews that he had done in his consultation with authorities in these foreign nations, whether he had ever heard of cocaine leaving from the Western Coast of Columbia in a GoFest vessel headed in the Northwest direction that was ultimately headed to Europe or West Africa. And he said unequivocally no. I've never heard of that. And he further said that's counterintuitive. It's just something that we don't see. He further said, Your Honors, that every time he had asked a facilitator that he had debriefed or a cell leakant, a leader who was responsible for shipping these cocaine by the GoFest vessels, every time he'd asked them about a load that had been seized or lost, that had been shipped by GoFest vessel in the Western Coast of Columbia, they had told him that that cocaine was ultimately headed to the United States. And that's a fact that is not discussed much in appellance briefing, but that the court credited and said he was well informed and well-reasoned in his opinions. What I think, what I don't want to be lost here, Your Honors, is that if we make this case just about the markings, and it's always about the markings, it's always about whether or not they're navigational charts, we are essentially giving a roadmap that can be controlled to the people who are shipping these drugs to the United States. It's in the record, it's not disputed that once they were spotted by the United States Coast Guard, the crew members aboard the imporio threw the bales of cocaine into the water. And they threw the radio that they'd been using to communicate with their superiors into the water. One of the person who was leading the voyage or driving the vessel also apparently threw his compass into the water. So I don't, I would hope that we would not put quick thinking defendants in a position where they can reward themselves and avoid prosecution in the United States simply by not marking the packages or changing the markings every time or quickly throwing anything that might be damaging to them into the water before they can be apprehended by the Coast Guard. Yeah, maybe I hope they don't hear me questioning why I need to make the thing sink. Well, you're on a, we can use reason to come and sense to try to figure that out, but if they were to, obviously the cocaine is buoyant in there, and if they're to weight it down sufficiently that it will sink, then they can't carry as much cocaine on board those vessels. And it would be much harder to throw off if they're all weighted with concrete. Yeah. It cannot be clear error for the district court to have credited Agent Wassert testimony. As we've heard here this morning, it was not disputed. Defense took some of his statements and tried to, to twist them to open up the possibility that a vessel of cocaine on a go fast vessel loaded with cocaine might have been headed to Panama. And then loaded onto a container vessel and then shipped backwards toward the Panama Canal. But that is not something that was ever in the experience of Agent Wassert he had ever heard of. It was something that ran counterintuitive and against common sense. And I think that it's been clearly established here that there was, that there was an exit to the United States and that the court should affirm the district court's really here. Absent any further questions, Your Honors? I'm prepared to weigh the rest of my time. Thank you. Response. Briefly, Your Honors, two points. Regarding the standard of review, I think the issue is resolved by United States versus Davis. And in that court, excuse me, in that case, the court held that the question of the application of the maritime drug law enforcement act to undisputed facts is reviewed denovo. It's a mixed question of fact in law, which is reviewed denovo. And there, the appellant was raising the exact same contention that we're raising here, whether on undisputed historical facts, was there sufficient nexus to survive due process in the court applied a denovo analysis? Well, what do you make of the mediate case that indicated it was clear that standard review was clear error with respect to finding that some portion of drugs would enter the United States? I would say that to that, to the extent that it is clear error, I think that we survived that analysis for three for the reasons that I discussed previously, which is that Agent Wasser's opinion was limited. And my opponent discussed why Agent Wasser had never seen drugs going from the Western Coast of Columbia to Europe. But again, I think that's a reflection of the limited sample on which he based his opinions. He was a United States law enforcement agent. He only saw cocaine seizures that were headed to the United States. And so his opinion was necessarily flawed because it wasn't based on a representative sample. And then lastly, to the extent that today's decision would somehow give a loophole to drug traffickers, I think the reverse policy argument could also be made that by choosing not to prosecute drug related crimes that have no nexus to the U.S. were actually upholding due process, were promoting principles of comedy and fundamental inferences. And for those reasons, I would ask that this court vacate the conviction and directions to dismiss the indictment. Thank you. Okay, thank you very much. Thank both sides for their help of argument. The four-going case is now submitted for decision