[00:00:00] Speaker 00:
The United States of America versus Cesar Gomez Almonte, also known as Johnny Gomez, also known as Johnny Gomez, also known as Julio Valenz.

[00:00:12] Speaker 00:
Mr. Marines for the appellant, Mr. Lane for the appellant.

[00:00:16] Speaker 03:
Good morning, counsel.

[00:00:17] Speaker 03:
Mr. Marines, please proceed when you're ready.

[00:00:21] Speaker 04:
May it please the court, Henry Marines on behalf of the appellant, Cesar Gomez Almonte.

[00:00:28] Speaker 04:
This case presents three serious constitutional failures.

[00:00:31] Speaker 04:
First, the denial of Mr. Almonte's six amendment right to a speedy trial after an 18 month post indictment delay.

[00:00:39] Speaker 04:
Second, a conviction on the improper venue under 18 USC 3238.

[00:00:46] Speaker 04:
And third, the denial of a mistrial.

[00:00:49] Speaker 04:
Despite compelling evidence, the jurors shared bias against the defense counsel and began deliberating prematurely.

[00:00:59] Speaker 04:
Each error independently requires reversal and collectively denied Mr. Almonte's fundamental right to a fair trial.

[00:01:09] Speaker 04:
Proceeding on to what we believe is our strongest argument, Judge, is the venue argument.

[00:01:19] Speaker 04:
The government proceeded to try this case in the District of Columbia based on 18 USC 3238.

[00:01:27] Speaker 04:
The venue lies in the district where the defendant is first brought is something that was ignored by the district court.

[00:01:35] Speaker 04:
In this particular case, Mr. Amanta had three co-defendants, two co-defendants.

[00:01:42] Speaker 04:
And the bulk of the cases had originated from the Southern District of Florida.

[00:01:49] Speaker 04:
In fact, there were 20 over 25 other defendants that were tried, indicted and tried in the Southern District of Florida.

[00:01:59] Speaker 04:
trial counsel focused on the fact that these cases stemmed and originated and made objections to venue based on the fact that substantial acts occurred in Florida.

[00:02:11] Speaker 04:
The vessel that was intercepted off the coast of Miami and co defenses were all tried in Florida.

[00:02:20] Speaker 04:
However,

[00:02:22] Speaker 04:
The indictment on which Mr. Almonte was, the charges on which Mr. Almonte was tried were based out of D.C.

[00:02:31] Speaker 04:
Now, in the district court's review of the venue argument to establish whether D.C.

[00:02:37] Speaker 04:
was correct, the D.C.

[00:02:39] Speaker 04:
court was not submitted or was not provided with all the information needed to make a proper analysis of whether the D.C.

[00:02:47] Speaker 04:
court was the proper venue.

[00:02:50] Speaker 04:
In evaluating the venue, the DC court just reviewed and looked at the fact that Mr. Almonte and Mr. Rodriguez were both indicted.

[00:03:02] Speaker 04:
in the District of Columbia.

[00:03:03] Speaker 04:
However, when a motion to dismiss was filed during that hearing, the District Court made a determination that venue was proper based just on the fact that the indictment had taken place in the District of Columbia.

[00:03:18] Speaker 04:
However, the government omitted the fact that there was a third defendant, and that defendant was in fact first brought into the Eastern District of Virginia

[00:03:31] Speaker 04:
The government has conceded that point.

[00:03:33] Speaker 04:
But however, at the pre-trial stage, they did not inform the court of that issue.

[00:03:39] Speaker 04:
And the court made an improper determination based on the facts before it that Venue was in fact correct in DC.

[00:03:47] Speaker 04:
if the court had been provided with the accurate information and the fact that Mr. Zari was apprehended and brought to the Eastern District of Virginia and that was the, he was a co-defendant and was first, that first appeared in that district that would have made venue in the Eastern District of Virginia, the proper venue, not the District Court of Columbia.

[00:04:12] Speaker 02:
Furthermore, you know what the phrase joint offenders means how it's been defined.

[00:04:19] Speaker 04:
Yes, your honor.

[00:04:20] Speaker 04:
And there's no actual there's no actual dispute as to whether or not he was he was a co defender because the government has conceded that in their brief.

[00:04:30] Speaker 04:
And in fact, in the middle of the trial with respect to the people in Florida.

[00:04:34] Speaker 04:
Well, that argument, the court didn't address that argument because the argument was that they were going to try him on the 32, such a 32, 38.

[00:04:46] Speaker 04:
And therefore, although Florida was a proper and the best venue where this case should have taken place, the vessel was apprehended there.

[00:04:53] Speaker 04:
The narcotics were confiscated there.

[00:04:58] Speaker 04:
the government decided to take them to DC.

[00:05:02] Speaker 04:
At that point, they relied on 18 USC to make that venue, which clearly seemed to be a forum shopping.

[00:05:13] Speaker 04:
They decided to bring them to DC.

[00:05:14] Speaker 04:
However, they failed in that attempt, because instead of just following the indictment and having them indicted in DC first, they first brought Zahri

[00:05:23] Speaker 04:
one of the co-defendants to the Eastern District of Virginia.

[00:05:27] Speaker 04:
At that point, the back-of-fallback venue at DC no longer applied.

[00:05:33] Speaker 01:
But the district court became aware of this and the defendant had an opportunity

[00:05:39] Speaker 01:
to make that argument and persisted with the argument that the proper venue was Florida.

[00:05:45] Speaker 01:
And then finally, at the very last minute, the district court said, you've been given the opportunity several times and you didn't take it.

[00:05:55] Speaker 04:
Well, I think the argument there, the trial attorney did focus on Florida, and that's correct.

[00:06:01] Speaker 04:
However, the venue was originally challenged pre-trial under Rule 12.

[00:06:07] Speaker 04:
And once the defendant challenges the venue, it is up to the government, the government's burden to establish that it's a proper venue.

[00:06:15] Speaker 04:
And establishing whether it was the government's responsibility.

[00:06:17] Speaker 01:
The government eventually, in a timely

[00:06:20] Speaker 01:
A timely moment conceded that Virginia was the proper venue.

[00:06:24] Speaker 01:
And the district court said to the defendant, I think you might want to raise this, and the defendant didn't.

[00:06:31] Speaker 04:
Once the defendant raises the venue, I think the obligation- When you're just saying there's a venue claim, that's it?

[00:06:36] Speaker 01:
And then that remains enough to encompass all possibilities thereafter?

[00:06:44] Speaker 04:
Once I would argue that venue was challenged, and once venue is challenged, the burden is on the prosecution to establish whether that's a proper venue.

[00:06:55] Speaker 04:
The district court did not have all the information when they made their announcement.

[00:06:58] Speaker 01:
What I'm saying is, as I'm understanding the record, when the government did become aware of the Dulles discussion and realized that Virginia was it, the government didn't resist that, the district court didn't either, but the defendant did.

[00:07:13] Speaker 01:
Well, I would say that the defendant did not want to be in Virginia.

[00:07:17] Speaker 01:
The defendant wanted to be in Florida.

[00:07:19] Speaker 01:
And the district court said no.

[00:07:21] Speaker 04:
That's accurate.

[00:07:22] Speaker 04:
But I think the venue still must be established.

[00:07:25] Speaker 04:
The burden is still on the government to establish that.

[00:07:27] Speaker 04:
Even in the district court level, the judge said it was an unusual situation that he had been placed in because the issue did not crystallize until the trial, even though it could have been crystallized before.

[00:07:37] Speaker 01:
Right.

[00:07:37] Speaker 01:
But then it did crystallize.

[00:07:38] Speaker 01:
And it was still time for the objection to be

[00:07:42] Speaker 01:
And you resisted it.

[00:07:44] Speaker 01:
The defendant resisted it.

[00:07:46] Speaker 04:
It wasn't a resistance.

[00:07:47] Speaker 04:
It didn't bite.

[00:07:48] Speaker 04:
It was a focus on Florida, but that's not a resistance.

[00:07:50] Speaker 04:
At that point, either way, shift the burden back onto the government to establish it.

[00:07:54] Speaker 04:
And at that point, the government is who misled the court.

[00:07:56] Speaker 01:
Here's the scenario that comes across in the record.

[00:07:59] Speaker 01:
District court says now, based on all of what I'm seeing, the proper venue is Virginia, to which defendant says, I want to be in Florida.

[00:08:07] Speaker 01:
And that colloquy occurred several times.

[00:08:10] Speaker 01:
That's a waiver.

[00:08:12] Speaker 01:
The district court's making it very clear.

[00:08:14] Speaker 01:
Do you want to raise that objection?

[00:08:16] Speaker 01:
And the defendant persisted in saying, no, I want to be in Florida.

[00:08:21] Speaker 04:
It was eventually brought up, but the idea that venue would even come up at that moment, if venue was properly vetted and the application of 3238 would have taken place at the pre-child stage,

[00:08:32] Speaker 04:
the court would have agreed and granted Mr. Amante's motion to move it to the Eastern District of Virginia at least.

[00:08:38] Speaker 04:
But that didn't occur because court wasn't aware that Zari was brought into the Eastern District of Virginia, neither was the defense.

[00:08:44] Speaker 03:
So at that point all they had was a bunch of redacted documentations that didn't make it clear until- When you say that the court and anybody else was unaware that Zari was brought to the Eastern District of Virginia,

[00:08:56] Speaker 03:
Do you mean that they were unaware that anyone, that the unnamed person was brought to the Eastern District of Virginia or a person named Zari?

[00:09:03] Speaker 03:
Because I thought that actually it was known that the co-defendant was brought to the Eastern District of Virginia, but just didn't know his name.

[00:09:12] Speaker 04:
They didn't know his name.

[00:09:13] Speaker 04:
There was a co-defendant, but in this case, there were 25 other defendants.

[00:09:17] Speaker 04:
And some of them, and all that information was provided to the defense.

[00:09:20] Speaker 04:
So all the other 25 defendants that were tried in the Southern District of Florida

[00:09:24] Speaker 04:
could have been one of those folks that were brought into the district of Virginia was unknown until the testimony fleshed out the fact and that was the first time the court was aware of it and defense made it clear at that point that they filed the admits trial the court actually removed the waiver because the court at that point readdressed the issue and therefore vacated any possibility of a waiver readdressing the issue of venue.

[00:09:50] Speaker 04:
So we would argue that the burden was misplaced and the district court failed in shifting the burden back into the defense when it was the government who failed to provide that information to the district court when they were making the initial analysis as to determining whether Virginia or DC was the proper venue.

[00:10:11] Speaker 02:
Are you aware of cases where this has happened?

[00:10:14] Speaker 02:
I mean, the government knew since before the indictment in this case.

[00:10:19] Speaker 02:
that Eastern District of Virginia had to be the right venue because they knew about sorry, they knew he was going to be your co-defendant and they didn't say a word.

[00:10:27] Speaker 02:
They just came to DC on the other hand.

[00:10:31] Speaker 02:
So they knew from, like I said, pre-indictment they knew and didn't say a word until

[00:10:39] Speaker 02:
They started getting uncovered in trial.

[00:10:43] Speaker 02:
But then, as Judge Edwards was saying, when you were invited to argue, the counsel blow was invited to argue that EDBA was the right venue.

[00:10:57] Speaker 02:
That argument was in May.

[00:10:59] Speaker 02:
It seemed like he just wanted to be in Florida and didn't care about the venue and EDBA.

[00:11:05] Speaker 02:
And venue can be waived.

[00:11:07] Speaker 02:
I'm just trying to figure out what we do with the fact that the government knew from the very outset and so did not fulfill its duty and its burden of proof as to venue from before the trial even started.

[00:11:22] Speaker 02:
So every minute of that trial, the government was responsible for it being in the wrong venue and knowingly so.

[00:11:28] Speaker 02:
On the other hand, given the opportunity, you waived it.

[00:11:30] Speaker 02:
So your argument is seeing the burdens on them and their argument is you waived it and

[00:11:35] Speaker 02:
I don't know, by not raising the issue, I'm just trying to sort it out because I haven't seen one that has this kind of factor.

[00:11:42] Speaker 04:
I mean, we stick to the case law that we provided and Lam Kong, while they determined that the burden is on the government to establish venue, that the jury must be aware of that, that the jury was brought to, the burden is on the government to prove every charge and that the venue is proper.

[00:11:57] Speaker 02:
They had to establish it and they conceded that they were wrong.

[00:12:00] Speaker 04:
They did, and the issue was whether it was waived, and we argued that it wasn't waived since venue was challenged from the beginning.

[00:12:07] Speaker 04:
And since it was consistently challenged, whether it was the Southern District of Florida or was in the Eastern District of Virginia, the venue had been challenged from the onset.

[00:12:15] Speaker 04:
So it's not like other cases that were cited that there was no mention or there was a clear waiver here.

[00:12:20] Speaker 04:
Venues being challenged, the defendant is not under the position that they have to establish all the areas where venue is proper.

[00:12:26] Speaker 04:
Neither the government concedes that they also rejected that Florida would be the proper venue because there was other places that the case could be tried.

[00:12:35] Speaker 04:
In their attempts to take the case and form shop it and bring it to DC, they also withheld information that would have clearly.

[00:12:44] Speaker 04:
We've clearly been instrumental in establishing that DC was not the proper venue.

[00:12:50] Speaker 04:
In fact, Eastern District of Virginia.

[00:12:51] Speaker 02:
Yeah, I've seen this in the cases, but telling me so if you have cases that makes this proposition that you're that the defense's only burden is to say venue is not in DC.

[00:13:04] Speaker 02:
And the government has to affirmatively prove

[00:13:08] Speaker 02:
that it is proper in DC.

[00:13:10] Speaker 02:
And so whether you were saying Florida or not, you were saying not DC.

[00:13:15] Speaker 02:
And in response to your not DC, the government conceded not DC.

[00:13:22] Speaker 04:
Yeah.

[00:13:23] Speaker 02:
I think at the end of the day- Is that how it works?

[00:13:25] Speaker 02:
That is- That is a trick- Say what is the proper venue.

[00:13:27] Speaker 04:
I don't think the obligation is to determine which is a proper venue, just to challenge venue, and they did challenge venue.

[00:13:33] Speaker 04:
I think the burden continuously shifts once you challenge venue back to the government, and the government failed to provide all the information necessary for the court to make a proper determination as to which is the correct venue.

[00:13:43] Speaker 04:
Once the court was aware of it, again, venue was challenged.

[00:13:47] Speaker 04:
It was mid-trial.

[00:13:48] Speaker 04:
At that point, any waiver issue shouldn't take place anymore because now

[00:13:54] Speaker 04:
the court reopened the issue.

[00:13:56] Speaker 03:
So the waiver argument shouldn't stand.

[00:13:59] Speaker 03:
And additionally- Would that apply?

[00:14:01] Speaker 03:
So suppose this happens, that everything proceeds in that way.

[00:14:05] Speaker 03:
And then the court just engages in a direct colloquy with defense and says, look, you've been making a lot of arguments so far that the proceedings should have gone on in Florida.

[00:14:14] Speaker 03:
Now that we have all this information, we see that actually there's a very good argument that the proceedings should happen in the Eastern District of Virginia, not in DC.

[00:14:23] Speaker 03:
We're all in a courtroom in DC.

[00:14:24] Speaker 03:
So I'm asking you, the defendant,

[00:14:26] Speaker 03:
If your choice is between DC and EDVA, as opposed to DC and Florida, let's take Florida off the table, and your choice is between DC and EDVA, are you okay with going forward in DC?

[00:14:38] Speaker 03:
Do you waive the opportunity to go to EDVA?

[00:14:42] Speaker 03:
If the defendant says, yeah, if that's my choice, if I have to be between EDVA and DC, I'm fine with just proceeding in DC, would you say at that point that that can't happen?

[00:14:56] Speaker 04:
Well, I don't think what's I don't know if the options would be to remain in DC at any point.

[00:15:01] Speaker 04:
I mean, I guess the defense could have waived it and said we prefer to stay in DC.

[00:15:05] Speaker 04:
That's that's not I guess the argument that would have come up.

[00:15:10] Speaker 04:
Clearly, the defense was never happy with staying in DC.

[00:15:14] Speaker 04:
And even if that would occur, I think that it would be the.

[00:15:18] Speaker 04:
There is a scenario, I suppose, that this could be a waiver and they can only say, I'm going to stay in D.C., but that's not the case here.

[00:15:27] Speaker 04:
From the onset was being challenged for venue.

[00:15:30] Speaker 03:
And if that's true, then all I'm saying is that it's still possible to waive even if an objection to venue is made, even if you were understanding is right, that all one has to do as a defendant is object to venue.

[00:15:43] Speaker 03:
to say that this is the wrong venue as opposed to then going on and saying which is the right venue which I understand your argument to that effect.

[00:15:52] Speaker 03:
If once the defendant has done that and flagged the venue issue that it seems like it's still possible to waive an objection to the current venue.

[00:16:04] Speaker 04:
I would think that

[00:16:05] Speaker 04:
It would still be an improper venue in DC.

[00:16:09] Speaker 04:
The proper venue as written by statute in the Sixth Amendment right to a trial would kick in and it would still be the Eastern District of Virginia.

[00:16:23] Speaker 04:
There was cases that were cited where there was a waiver, because the defendant never brought it up, even though it was brought to their attention.

[00:16:30] Speaker 04:
I think it's not the same scenario as here, because they waited after trial to make that determination.

[00:16:35] Speaker 04:
And here, Amante continuously challenged Venue throughout the entire process, even through the trial.

[00:16:40] Speaker 04:
And it was admonished for it.

[00:16:41] Speaker 04:
The court said not to bring it up anymore.

[00:16:44] Speaker 04:
So Venue was constantly being challenged.

[00:16:46] Speaker 04:
And that's what distinguishes those cases from here.

[00:16:49] Speaker 04:
But I think the proper venue, no matter what, should have been Eastern District of Virginia.

[00:16:52] Speaker 04:
Well, theoretically, it should have been always Florida, Southern District of Florida.

[00:16:57] Speaker 04:
But a calculated attempt to form shop and bring it to DC failed when they originally first brought Zari to Eastern District of Virginia.

[00:17:06] Speaker 04:
And they tried to clean it up.

[00:17:10] Speaker 04:
by stating that it was a Route 12 violation and it wasn't brought to the court's attention, although then it was challenged pre-trial.

[00:17:16] Speaker 04:
So they met their burden on the Route 12, again during the trial, and in that hearing, the court

[00:17:22] Speaker 04:
dismissed any possible arguments based solely on the indictment, although the government all knew all along that sorry was brought into the Eastern District.

[00:17:30] Speaker 04:
They didn't mention it during that process and during that hearing.

[00:17:32] Speaker 04:
And it wasn't until it became obvious to all parties that during the trial that it resurfaced that an argument was to be made.

[00:17:39] Speaker 04:
So I still think that the best thing to do is to vacate.

[00:17:43] Speaker 04:
The government clearly misled the court into making a determination and in their analysis to establish the wrong venue

[00:17:50] Speaker 04:
and all their attempts, they never cleared it up.

[00:17:52] Speaker 04:
And at the end of the day, they just blame the defendant and shifted the burden back onto the defendant.

[00:17:58] Speaker 03:
Do you think my colleagues have questions on any of the other issues?

[00:18:02] Speaker 03:
No, we'll give you a little bit of time for rebuttal.

[00:18:03] Speaker 03:
Thank you.

[00:18:04] Speaker 03:
Thank you, counsel.

[00:18:05] Speaker 05:
Mr. Lang.

[00:18:12] Speaker 05:
Good morning, Your Honors, and may it please the court, Andrew Lang for the United States.

[00:18:16] Speaker 05:
The district court correctly denied Gomez-Almonte's speedy trial clause and venue-related motions, and its inquiry into the jury after learning about a comment about defense counsel was not an abuse of its considerable discretion, and this court should therefore affirm.

[00:18:29] Speaker 05:
I'm, of course, happy to jump straight into the venue issue.

[00:18:32] Speaker 05:
Gomez Almonte makes two arguments about venue on appeal, one of which he has been making throughout the course of this litigation, starting prior to trial, and the other of which he never made until his written Rule 29 motion and now advances on appeal.

[00:18:47] Speaker 02:
So starting with the sudden- Do you have any case that says the burden is on the defendant to identify the right venue once they make a venue objection, or they just have to say, venue here is wrong?

[00:18:58] Speaker 02:
That's sufficient.

[00:18:59] Speaker 05:
I don't have a case specifically for that proposition, Your Honor.

[00:19:02] Speaker 05:
And I suspect that's because this scenario is somewhat unusual, where there are multiple different districts where a defendant is arguing the case should have been venued and one of those districts doesn't emerge until later on.

[00:19:14] Speaker 02:
Let me ask you another way.

[00:19:15] Speaker 02:
Does the government have the obligation to establish proper venue, to bring the case in a proper venue?

[00:19:23] Speaker 05:
Well, ultimately, yes, of course.

[00:19:24] Speaker 05:
It is the government's burden to prove venue by requirements.

[00:19:26] Speaker 02:
So in this case, the government knew

[00:19:29] Speaker 02:
Pre-indictment.

[00:19:31] Speaker 02:
It was in the wrong district.

[00:19:33] Speaker 02:
The government had all the information and it knew.

[00:19:35] Speaker 02:
And it conceded before the district court.

[00:19:38] Speaker 02:
You're right, it doesn't belong here.

[00:19:40] Speaker 02:
So it's known, it made a deliberate decision, and then it conceded it during trial.

[00:19:48] Speaker 02:
And throughout trial, even pre-trial, Gerald Monte was saying, venue is wrong here.

[00:19:59] Speaker 02:
He was arguing for another place, but I'm just trying to understand why him misunderstanding where it should be matters.

[00:20:10] Speaker 02:
Government has a burden.

[00:20:12] Speaker 02:
Government knew.

[00:20:13] Speaker 02:
Government didn't care.

[00:20:15] Speaker 02:
Government concedes.

[00:20:18] Speaker 02:
Venue objected to repeatedly.

[00:20:22] Speaker 02:
Why isn't that reversible error?

[00:20:23] Speaker 05:
Well, I have a number of thoughts on that, Your Honor.

[00:20:25] Speaker 05:
The first of which is I think the application of Rule 12 is important here in terms of determining whose burden it is to do what.

[00:20:33] Speaker 05:
So the defendant has to raise any defects in the indictment if the basis for raising those defects is reasonably available prior to trial.

[00:20:40] Speaker 05:
Sometimes indictments are defective.

[00:20:43] Speaker 02:
But the government has a pre-existing obligation

[00:20:47] Speaker 02:
to establish proper venue.

[00:20:50] Speaker 02:
And I don't dispute that... The government knew it wasn't right.

[00:20:53] Speaker 02:
This is not a case where it was a surprise to the government that some other external factual development changed things.

[00:21:01] Speaker 02:
Why are we pointing the defendant for not doing things right when the government was wrong from indictment forward and admits it?

[00:21:10] Speaker 02:
Why should he bear the burden of that?

[00:21:13] Speaker 05:
A number of responses, Your Honor.

[00:21:15] Speaker 05:
So first of all, again, I agree, as I think we made clear in our brief, that venue was proper in the Eastern District of Virginia.

[00:21:21] Speaker 05:
My understanding from speaking with the trial team, although, of course, I wasn't in the room during the charging decisions, is that this was an honest mistake.

[00:21:28] Speaker 05:
The Narcotic and Dangerous Drugs section often brings these kinds of cases in the District of Columbia.

[00:21:33] Speaker 05:
And I don't think they appreciated the significance of Zari having been brought to the Eastern District of Virginia.

[00:21:38] Speaker 05:
In terms of when the government made this concession, I don't know that the government immediately knew that venue was improper in the District of Columbia.

[00:21:47] Speaker 05:
So for example, at Supplemental Appendix 1275, in response to the district court's request for briefing on this very question, the government reiterated its position that venue was proper in the District of Columbia.

[00:21:59] Speaker 02:
So I don't know that I would characterize this as a knowing... The government had all... I mean, this is not the hardest legal question anyone grapples with.

[00:22:08] Speaker 02:
And you were arguing about the statutory provision all along just in response to the Florida arguments.

[00:22:14] Speaker 02:
But you all were looking at that statutory language and briefing it and talking about it.

[00:22:18] Speaker 02:
But also, I mean, the government, maybe I'm not suggesting any willfulness or maliciousness here, but it had all the facts and all the knowledge.

[00:22:27] Speaker 02:
It brought Mr. Zarian and then said, this is co-defendant three, this guy we brought into Virginia and looking at the statutory language.

[00:22:35] Speaker 02:
And so you're going, well, you know, we made an honest mistake.

[00:22:37] Speaker 02:
Well, maybe he made an honest mistake.

[00:22:39] Speaker 02:
But you all made the first one.

[00:22:40] Speaker 02:
You brought the prosecution.

[00:22:42] Speaker 02:
You have the burden.

[00:22:43] Speaker 02:
And it's just, A, you had the burden.

[00:22:50] Speaker 02:
You made the mistake.

[00:22:51] Speaker 02:
Let's just say yours was just as honest as his was.

[00:22:55] Speaker 02:
And you conceded.

[00:22:59] Speaker 02:
were in the wrong jurisdiction under this statute.

[00:23:02] Speaker 02:
You didn't have an argument.

[00:23:03] Speaker 02:
It could have been either EDBA or DC.

[00:23:05] Speaker 05:
That's correct.

[00:23:06] Speaker 02:
It was wrong.

[00:23:07] Speaker 05:
I agree.

[00:23:08] Speaker 02:
And so I'm just understanding why.

[00:23:10] Speaker 02:
I'm having trouble understanding why we've got problems on both sides here.

[00:23:16] Speaker 02:
And if they're all good faith problems, why does it fall on the defendant when the government has to do this upfront, is the first one that has to do this?

[00:23:27] Speaker 05:
Well, I don't think there's very much in your honor's question with which I disagree.

[00:23:31] Speaker 05:
This was a mistake that the government ultimately bore the burden for because it brought the indictment in the first place.

[00:23:38] Speaker 05:
It's responsible for proving venue.

[00:23:40] Speaker 05:
But ultimately here on appeal, we have to view this error through the lens of rule 12 and we have to consider the fact

[00:23:46] Speaker 05:
that not only does rule 12 apply, but Gomez Almonte affirmatively waived his argument that venue was proper in the Eastern District of Virginia when he was invited by the district court to make that argument.

[00:23:56] Speaker 05:
And as Judge Edwards pointed out, he declined to do so.

[00:23:59] Speaker 05:
Instead, he repeated his argument that venue was proper in the Southern District of Florida.

[00:24:04] Speaker 05:
As I understand my colleague to have acknowledged that really was the sole focus of defense counsel before the district court contending that because the conspiracies goal was importation into Miami because some over acts may have occurred in the Southern District of Florida because other defendants may have been indicted in Florida.

[00:24:22] Speaker 05:
That was the locust delict die.

[00:24:23] Speaker 05:
That was the place where the indictment should have been brought for everyone.

[00:24:27] Speaker 05:
But as we explain in our brief, that argument is incorrect under Section 3238, and that is the argument on which the defendant was hanging his hat at trial.

[00:24:36] Speaker 05:
So because he affirmatively waived his opportunity to make the argument about the Eastern District of Virginia,

[00:24:42] Speaker 05:
And the district court, I think, quite appropriately dealt with that argument by saying, well, it may have merit.

[00:24:47] Speaker 05:
There may be something here.

[00:24:48] Speaker 05:
I'm just realizing this now.

[00:24:50] Speaker 05:
Invited briefing.

[00:24:52] Speaker 05:
I think the district court handled this unimpeachably.

[00:24:55] Speaker 05:
The parties briefed this issue.

[00:24:56] Speaker 05:
And Gomez-Almonte declined to make this argument.

[00:24:59] Speaker 02:
Once the government concedes we're in the wrong courthouse, so we'll jump ahead to the briefing point.

[00:25:07] Speaker 02:
And none of this is a criticism of the district court judge.

[00:25:11] Speaker 02:
The government concedes we're in the wrong courthouse.

[00:25:14] Speaker 02:
Why isn't that enough by itself?

[00:25:15] Speaker 02:
And the defendant keeps saying, it shouldn't be in D.C.

[00:25:18] Speaker 02:
It shouldn't be in D.C.

[00:25:20] Speaker 02:
The second clause of that sentence is I want it in Florida, but definitely saying it shouldn't be in D.C.

[00:25:25] Speaker 02:
He said that from the beginning, from the get-go.

[00:25:30] Speaker 02:
It shouldn't be in D.C.

[00:25:31] Speaker 02:
Government agrees it shouldn't be in D.C.

[00:25:33] Speaker 02:
Why doesn't it all just stop there?

[00:25:36] Speaker 02:
Two responses, Your Honor.

[00:25:39] Speaker 05:
First, again, I'm not sure that the government did concede that the case shouldn't be in D.C.

[00:25:43] Speaker 05:
Again, in its supplemental filing in response to the district court's request for briefing, and again, I believe that supplemental appendix 1275, the government reiterated that it believed venue was proper in the District of Columbia.

[00:25:54] Speaker 05:
On appeal, of course, we agree that that was based on a misapplication of Section 3238, but I don't

[00:26:00] Speaker 05:
I don't know that the government immediately or ever before the district court conceded that venue should have been in the Eastern District.

[00:26:07] Speaker 02:
What would have been the argument under the statute?

[00:26:09] Speaker 02:
Plans can be when the first offender is brought in, first brought into the country.

[00:26:16] Speaker 02:
where they land, where they're arrested and brought.

[00:26:18] Speaker 02:
It's all EDDA.

[00:26:20] Speaker 05:
I couldn't agree with Your Honor more.

[00:26:21] Speaker 05:
That's not the argument that the government made in the district court.

[00:26:24] Speaker 05:
The government continued to argue that venue is proper in the District of Columbia.

[00:26:27] Speaker 05:
But I read the statute the same way that Your Honor does.

[00:26:31] Speaker 05:
But that having been said, as I mentioned a moment ago, I think there are a number of procedural hurdles here, even if Gomez-Alante hadn't.

[00:26:38] Speaker 02:
You know when the government conceded post-trial?

[00:26:41] Speaker 02:
Do you agree on that?

[00:26:42] Speaker 05:
I'm not sure when it would have done that, because the argument about the Eastern District of Virginia was only ever actually advanced by the defendant in his written Rule 29 filing, which was filed about a month after trial had concluded in December.

[00:26:55] Speaker 05:
And then the district court only heard argument about that at sentencing and held, you've waived the argument, it's too little, too late.

[00:27:02] Speaker 02:
Did the government concede, file a brief in response?

[00:27:05] Speaker 05:
I don't believe the government conceded at that point, but I don't have that filing in front of me here.

[00:27:11] Speaker 05:
But in any event, I think certainly by that point, the district court had a very solid foundation for finding waiver, in particular, because of the affirmative decision not to pursue this argument at all after being specifically invited to do so, but also through the operation of Rule 12's waiver absent good cause or in the alternative plain error, which we discuss in our brief.

[00:27:32] Speaker 02:
The fourth.

[00:27:33] Speaker 02:
Any case, because I couldn't find this, too, and I sure could use some help.

[00:27:37] Speaker 02:
Again, it seems to me the defendant's only burden is to say venue is improper.

[00:27:41] Speaker 02:
It's not their job to tell you where to bring your case.

[00:27:48] Speaker 02:
And he was saying that.

[00:27:49] Speaker 02:
There's no one disputes that he was saying that, including Rule 12 and author trial and host trial.

[00:27:58] Speaker 02:
So when he didn't argue EDVA,

[00:28:04] Speaker 02:
When he didn't tell you where your case belonged, how did he waive his objection that it doesn't belong in DC?

[00:28:09] Speaker 05:
Well, first of all, I wish that I could provide your honor with a court, a case directly on point.

[00:28:14] Speaker 05:
I haven't found a case where there were multiple legally distinct objections to venue and one was made and the other was not.

[00:28:21] Speaker 05:
That having been said, I think applying the general rules of waiver here makes perfect sense because the defendant was presented with a specific argument and declined to make it.

[00:28:32] Speaker 02:
But he was asked, the specific opportunity he was given was to argue that EDVA was right.

[00:28:37] Speaker 02:
Yes, I agree with that.

[00:28:41] Speaker 02:
You know a lot more about criminal trials than I do.

[00:28:45] Speaker 02:
Why is that defendant's... I mean, what do you waive when you say that?

[00:28:49] Speaker 02:
If he had said in response to that motion, I don't know where it belongs, but it does not belong here.

[00:28:54] Speaker 02:
Would that have been a waiver?

[00:28:57] Speaker 05:
Well, it might depend on the basis for the objection.

[00:29:01] Speaker 02:
In this very case, instead of saying Southern District of Florida, he said, as I've said from day one, this case does not belong in DC.

[00:29:09] Speaker 02:
I'm not going to tell the government where it should be.

[00:29:13] Speaker 05:
I think, although that would be a closer case, I think if he had said that in response to the district court's invitation on this record, that probably would also be a waiver.

[00:29:22] Speaker 02:
And that assumes that

[00:29:25] Speaker 02:
Your waiver argument assumes that there is an obligation on the part of the defendant not just to object to venue, but to identify and argue why another place is proper venue.

[00:29:39] Speaker 02:
I mean, you could have a situation where there's just no venue in the United States.

[00:29:43] Speaker 02:
That's, you know, and if I don't understand if his argument was, I'm not, it's not my job to tell the government where to bring this, that would be proper venue.

[00:29:54] Speaker 02:
So I don't think it is.

[00:29:55] Speaker 02:
I don't think anyone thinks it is.

[00:29:58] Speaker 02:
Then as long as he was saying, it's not DC.

[00:30:03] Speaker 02:
Why did he waive it by not saying where it should be?

[00:30:05] Speaker 05:
Well, two things, Your Honor.

[00:30:06] Speaker 05:
First, let me address waiver in the sense of an intentional relinquishment of a known right.

[00:30:11] Speaker 05:
And second, let me address the preservation of the issue more generally.

[00:30:16] Speaker 05:
So first of all, with respect to waiver in the Zerbst sense of intentional relinquishment of a known right, I think the authority that we have available to us is pretty clear that when a defendant is specifically offered an argument and says no, thank you, that is intentional relinquishment of that argument.

[00:30:33] Speaker 05:
argument.

[00:30:34] Speaker 05:
With respect to preservation more generally in terms of what a defendant- Can I follow up on relinquishment?

[00:30:38] Speaker 02:
Oh, please.

[00:30:39] Speaker 02:
I want to make that point too.

[00:30:43] Speaker 02:
Relinquished, what did he relinquish?

[00:30:47] Speaker 02:
The- He still said not DC.

[00:30:50] Speaker 02:
The right to make the argument specifically that Section 3238 required- If he had no obligation to make that argument beyond saying DC is wrong, he didn't relinquish away anything.

[00:31:00] Speaker 05:
Well, I don't know that I would use the word obligation.

[00:31:02] Speaker 05:
But when a district court says, in effect, would you like to make this argument, and the defendant makes a different one, I don't think there's any way to interpret that other than intentional relinquishment of that argument.

[00:31:14] Speaker 05:
And this court has come to a similar conclusion in other contexts.

[00:31:17] Speaker 05:
At sentencing, for example, when a defendant declines to make an objection that's obvious on the record, that constitutes waiver.

[00:31:24] Speaker 03:
I mean, it seems to me that if the way it works is all the defendant has to do

[00:31:29] Speaker 03:
is object to DC and not have to specify which the right one is.

[00:31:34] Speaker 03:
Let's just suppose that that's correct.

[00:31:37] Speaker 03:
Then it still seems to me one can imagine a situation in which the defendant's decision on whether to raise that objection or to waive that objection depends on the answer to where it would go forward.

[00:31:54] Speaker 03:
The defendant can decide whether to waive or not.

[00:31:56] Speaker 03:
And it could be that the defendant raises the objection and says, I don't want to meet DC, but DC is the wrong venue.

[00:32:06] Speaker 03:
What's the right venue?

[00:32:08] Speaker 03:
DC is the wrong venue.

[00:32:09] Speaker 03:
And then if there's a further elucidation of the issue, and then it turns out that the right venue is the EDVA, I think at that point, the defendant can definitely say, well, if that's the right one, now I waive my objection.

[00:32:24] Speaker 05:
I believe I agree with all that, Chief Chief Spooner-Pasin.

[00:32:26] Speaker 05:
Yes, I think if it becomes sort of crystallized on the record where it's clear what everyone is now talking about, this is the specific basis for the venue argument, then at that point, I agree, the defendant could certainly waive that particular basis for the venue argument.

[00:32:42] Speaker 03:
And is that the way you're conceptualizing what happened

[00:32:47] Speaker 03:
below, or are you conceptualizing it differently from that?

[00:32:51] Speaker 05:
I think I'm conceptualizing it very slightly differently.

[00:32:55] Speaker 05:
My conceptualization is throughout the trial, including pretrial, and the district court ignored the fact that it was slightly after the pretrial motions deadline, the defendant has been making one specific objection to venue.

[00:33:08] Speaker 05:
Venue is proper in the Southern District of Florida and not the District of Columbia for the following reasons, which evolved slightly but were basically consistent.

[00:33:16] Speaker 05:
At a later point, mid trial, I think on November 20th, the district court said, there's a different basis for a venue objection that has occurred to me.

[00:33:28] Speaker 05:
What do you think?

[00:33:29] Speaker 05:
And at that point, the defendant doubled down on the Southern District of Florida.

[00:33:32] Speaker 05:
So I think those are, I understood your honor's hypothetical to be more along the lines of a general umbrella venue argument and then a specific venue argument.

[00:33:41] Speaker 05:
As I read the record, we have one specific venue argument followed by a different specific venue argument.

[00:33:46] Speaker 03:
Right.

[00:33:47] Speaker 03:
I guess I'm more asking if the upshot of the situation is what I had outlined as a hypothetical, because it just seems to me that if in that hypothetical scenario a waiver can happen, notwithstanding that as has been pointed out, it has to be right,

[00:34:05] Speaker 03:
The burden is on the government.

[00:34:07] Speaker 03:
The government actually didn't.

[00:34:09] Speaker 03:
I mean, I don't doubt good faith at all, but it turns out that all the information that was before the government should have let the government to understand that DC is not the place that this case should go forward.

[00:34:19] Speaker 03:
Even if all that's true, it can still be waived.

[00:34:24] Speaker 03:
Then you can be waived.

[00:34:25] Speaker 03:
I agree with all of that, Your Honor.

[00:34:27] Speaker 03:
Then the question becomes, how do we conceptualize what happened below?

[00:34:31] Speaker 03:
Was there an affirmative waiver of the objection to DC?

[00:34:35] Speaker 03:
And I take it that the upshot of your submission, even though the particulars of exactly how it came about may vary, the upshot is, yes, there actually was an affirmative waiver of the objection to DC.

[00:34:47] Speaker 03:
Not on the theory that the burden is on the defendant to show what the right venue is, but just it is a waiver of the objection to being in D.C.

[00:35:00] Speaker 03:
once it becomes known that, oh, actually, it turns out the choice on the table either is EDVA or could be EDVA.

[00:35:08] Speaker 03:
You can even imagine a defendant saying, actually, if EDVA is even on the table, I withdraw my objection.

[00:35:14] Speaker 05:
Sure, I agree with all of that, Your Honor.

[00:35:16] Speaker 05:
I think the waiver, I might characterize it slightly more specifically as waiver of the argument that venue was proper specifically in the Eastern District of Virginia and for that reason, not proper in the District of Columbia, but that may be splitting hairs.

[00:35:30] Speaker 05:
I agree with Your Honor's premise.

[00:35:31] Speaker 02:
I'm not sure it's splitting hairs at all.

[00:35:32] Speaker 02:
There's absolutely no, I don't think there's any argument below or any findings by the district court to suggest that he was making an intentional

[00:35:40] Speaker 02:
choice.

[00:35:41] Speaker 02:
Well, if I've got to choose between EDBA and DC, I'm staying in DC.

[00:35:45] Speaker 02:
There's absolutely nothing about his mindset in the record at all, other than his mindset was not DC.

[00:35:53] Speaker 02:
I'm telling you, I'm going to tell you again, I'm going to tell you thrice, not DC.

[00:35:57] Speaker 02:
This is improper.

[00:35:58] Speaker 02:
This is legally improper.

[00:36:00] Speaker 05:
Sure, I agree with that, Your Honor, although I might add that I think what his mindset was during trial, and I understand my opposing counsel to agree, is not just we shouldn't be in D.C., it is we shouldn't be in D.C.

[00:36:12] Speaker 05:
because we should be in the Southern District of Florida.

[00:36:15] Speaker 05:
So I believe he was making a specific venue objection.

[00:36:19] Speaker 05:
I want to return just very briefly, if I may, to the second answer that I was going to give you.

[00:36:24] Speaker 00:
I'm sorry, yeah.

[00:36:24] Speaker 05:
No, no, no.

[00:36:25] Speaker 05:
That's what we're here for.

[00:36:26] Speaker 05:
The other point that I wanted to make about preservation generally is that when this court deals with issue preservation specifically under Rule 12, although, as I mentioned, I haven't found cases where there are two different venue objections and one is made and one is not, this court does deal with this kind of circumstance under Rule 12 where, for example, one suppression argument is made and another is not.

[00:36:47] Speaker 05:
And this court has held that merely saying, I don't think there was probable cause for X, Y, and Z, or I make a particular suppression argument isn't enough to preserve the whole umbrella of suppression arguments.

[00:37:00] Speaker 05:
So I think although... That's very different.

[00:37:02] Speaker 02:
I mean, the government doesn't have an affirmative obligation to come in and show that every single piece of evidence

[00:37:09] Speaker 02:
was collected in compliance with every relevant provision of the Constitution.

[00:37:14] Speaker 02:
That is something that the defendant has the burden to initiate the question.

[00:37:21] Speaker 02:
And if they don't, they don't.

[00:37:22] Speaker 02:
This is different on venue.

[00:37:24] Speaker 05:
I think under Rule 12, the obligation to raise these issues pre-trial is basically the same.

[00:37:32] Speaker 05:
So I agree that the- And it was raised pre-trial.

[00:37:35] Speaker 02:
DC is wrong.

[00:37:36] Speaker 05:
Well, not the argument that he raises on appeal.

[00:37:39] Speaker 05:
But yes, I agree with your honor that obviously venue and evidentiary issues have different nooks and crannies.

[00:37:46] Speaker 05:
But the basic rule 12 analysis in terms of how to preserve an argument is the same.

[00:37:52] Speaker 05:
This court takes the same approach with sufficiency arguments.

[00:37:55] Speaker 05:
You can't just say the evidence was insufficient for a particular reason and preserve the whole umbrella of sufficiency arguments.

[00:38:01] Speaker 05:
So I think the logic here is identical.

[00:38:04] Speaker 05:
The basis for these two venue arguments are legally different.

[00:38:08] Speaker 05:
They're different applications of Section 3238.

[00:38:11] Speaker 02:
I thought there was actually case law that if you make a general objection, post-government case, maybe again post-trial, it's insufficiency of evidence that that preserves sub-arguments under that.

[00:38:26] Speaker 05:
Well, I think in the context of making a specific argument, that's not enough to preserve other specific arguments.

[00:38:33] Speaker 05:
And I think that's from, for example, United States versus.

[00:38:36] Speaker 02:
I think we're just going, I think we're both.

[00:38:40] Speaker 02:
confronted with a lack of case law situation of what he had to preserve.

[00:38:46] Speaker 05:
I wish we had more, Your Honor.

[00:38:47] Speaker 05:
But my general point, I think, is well-supported, which is that a specific argument doesn't preserve all other specific arguments.

[00:38:56] Speaker 02:
And that's basically how we- You understand the specific argument to be, this should be Southern District of Florida, as opposed to the specific argument.

[00:39:03] Speaker 02:
He made two specific arguments, not DC,

[00:39:08] Speaker 02:
SD, Florida.

[00:39:10] Speaker 05:
I suppose I would see those arguments as a single argument, because as he consistently argued starting in his pretrial motion to dismiss, his argument about the Southern District of Florida and not the District of Columbia really was one in the same.

[00:39:24] Speaker 05:
There is no connection to the District of Columbia.

[00:39:26] Speaker 05:
He made the point that the destination of the cocaine importation was not the District of Columbia.

[00:39:31] Speaker 05:
It was Miami.

[00:39:32] Speaker 05:
So I understand that.

[00:39:34] Speaker 05:
as it was repeatedly presented to the district court to be one unitary argument about venue being proper in Florida and not D.C.

[00:39:42] Speaker 01:
Let me ask you a question.

[00:39:43] Speaker 01:
My recollection is that when the district court pointed out that Virginia, the Virginia issue, the defendant didn't really think twice about it.

[00:39:52] Speaker 01:
He continued to write in his filings to the court that Zari was first brought to D.C.

[00:40:01] Speaker 01:
I mean the response from the defendant to the district court's overture.

[00:40:07] Speaker 01:
regarding Virginia in the filings at that moment was, no, Zari was brought into DC initially.

[00:40:15] Speaker 05:
Yes, that's right.

[00:40:17] Speaker 01:
There were a number of ways that he was rejecting.

[00:40:21] Speaker 01:
The district court was clearly putting it on the table and saying, this is a potential venue issue here.

[00:40:27] Speaker 01:
And that was one of the things that he did.

[00:40:28] Speaker 01:
He said at one point in his filings,

[00:40:31] Speaker 01:
Zari was brought into DC.

[00:40:33] Speaker 05:
Yes, I recall that, Your Honor.

[00:40:35] Speaker 05:
And I believe he also proposed a jury instruction that, if I'm not mistaken, would have directed the jury that Zari had been brought, quote unquote, to DC.

[00:40:44] Speaker 05:
So I agree with Your Honor.

[00:40:45] Speaker 05:
I don't think that he made the argument, and indeed, seemingly decided not to make the argument, that the district court was presenting to him about the Eastern District of Virginia.

[00:40:55] Speaker 01:
And make sure I'm understanding, last thing for me, of the thrust of your argument, district court have an obligation

[00:41:02] Speaker 01:
as the judge to put, when it becomes clear to the district court what's going on, have an obligation to put the case in the right venue?

[00:41:11] Speaker 05:
Well, I think it depends on the timing.

[00:41:13] Speaker 05:
I think because of the operation of Rule 12, if an argument like this could and should have been made prior to trial and wasn't absent good cause, Rule 12 directs courts not to correct these errors.

[00:41:24] Speaker 05:
And I think the district court correctly concluded on these facts that this argument about the Eastern District of Virginia had been waived.

[00:41:33] Speaker 05:
Unless the court has any questions about the speedy trial clause or juror inquiry issues, which, of course, I'm more than happy to address, we ask the court to affirm.

[00:41:42] Speaker 03:
Thank you, counsel.

[00:41:43] Speaker 03:
Thank you.

[00:41:43] Speaker 03:
Mr. Marines, we'll give you two minutes for a rebuttal.

[00:41:51] Speaker 04:
Judge, thank you.

[00:41:53] Speaker 04:
Again, thank you for your time.

[00:41:55] Speaker 04:
I would go back to the burden shifting that's happening where

[00:42:02] Speaker 04:
The government's conceding that they made mistakes, conceding that they didn't provide the proper information to the district court, conceding that Eastern District of Virginia was in the right forum.

[00:42:16] Speaker 04:
continue to rely on Section 3238 as DC being the proper venue.

[00:42:24] Speaker 04:
And in doing so, they don't go through the entire steps to determine when a code offender was first brought.

[00:42:32] Speaker 04:
They continue to ignore that factor and rely heavily on the fact that there was some kind of a waiver after the fact.

[00:42:41] Speaker 04:
And I would argue there wasn't a waiver.

[00:42:44] Speaker 04:
The fact that Mr. Almonte continued to argue against DC is all that is needed.

[00:42:51] Speaker 04:
There wasn't a need for him to highlight every venue.

[00:42:54] Speaker 01:
I just referred the opposing counsel to the response from the defendant was that the co-defendant was brought first to DC.

[00:43:04] Speaker 01:
So I mean, he was doing everything to resist the overture that the proper venue is Virginia.

[00:43:12] Speaker 01:
And it is true the government may have the obligation and can be challenged on failure.

[00:43:18] Speaker 01:
That's the way these cases set up with respect to lots of matters.

[00:43:22] Speaker 01:
But there's a responsibility on the armed party or offended party to raise the objection and to pursue it.

[00:43:31] Speaker 01:
And that's what we're talking about.

[00:43:32] Speaker 01:
And if your response is district courts telling you the government's conceding it, you have every indication now in a timely moment to say it shouldn't be here.

[00:43:44] Speaker 01:
So you can say, yeah, the government was erroneous.

[00:43:47] Speaker 01:
We want to move it.

[00:43:48] Speaker 01:
And you don't take that opportunity.

[00:43:50] Speaker 01:
The law also says you lose.

[00:43:53] Speaker 04:
Understood, but I don't think that that was, in fact, what happened because he doesn't concede DC at any point.

[00:44:00] Speaker 04:
There was an annoying waiver and acceptance that the trial will continue in DC.

[00:44:04] Speaker 04:
There was always an objection as to the venue.

[00:44:08] Speaker 04:
I don't believe it's the responsibility of the defendant to establish that they should then go to the Eastern District of Virginia.

[00:44:15] Speaker 04:
The government's burden is to establish the proper venue, and they acknowledge that they did not do that.

[00:44:21] Speaker 04:
Once the throughout the throughout the process, trial council continuously objected to the venue argument and continue to to argue that the venue was improper in DC.

[00:44:32] Speaker 04:
Now, you know, whether or not it could have been in the Southern District of Florida or whether or not it could have been an Eastern District of Virginia.

[00:44:40] Speaker 04:
It's not the burden of the defense to highlight the fact that they are not knowingly waving DC and acknowledging that the process should take place there, even though that the Eastern District of Virginia has become a proper place.

[00:44:57] Speaker 04:
And the fallback statute on 3238 would concede to the fact that it should have been an Eastern District of Virginia.

[00:45:08] Speaker 04:
So I think having said that, it doesn't go back now to the burden doesn't shift back to the defendant to say what other venues will be proper other than DC.

[00:45:21] Speaker 04:
No other questions?

[00:45:23] Speaker 03:
Thank you, counsel.

[00:45:24] Speaker 03:
Thank you to both counsel.

[00:45:25] Speaker 03:
We'll take this case under submission.

[00:45:27] Speaker 03:
Thank you.