ok thank you it's good to know and to remember and emphasize that in this jury trial that lasted through over the course of three days there was a multiple objections raised to t well everybody has a cell phone and his reasoning as to why it wasn't harmful to let the cell phone in and i don't even think the court at that time really knew exactly what derivative use versus direct use i don't even think the court knew at that time and i don't think he had any that's because if you look at fifth circuit law there really isn't a whole lot of guidance when it comes to the direct application of these facts to the law i is if the court erred in this respect do we do a harmless analysis or do you believe that it's automatically personable error that it violated the greek i think it's automatically reversible error because it touches on the fifth amendment it touches on the immunity agreements that are being used on a day to day basis and there's virtually a whole body evidence of guilt but if you if you look at the face of the trial record there was an acquittal on count on that money laundering counts a substantial portion of the trial focused on those monday money laundering counts and indictment and if you take drugs had the marijuana my client's people had had no drugs and so that but for that phone that that cell phone in the existence of that cell phone was a critical element to prove possession in relationship to the office of conviction y to testify as to whether or not they had on that day they had called serve on the phone to coordinate the delivery of drugs on that day or to other cell phone records some other there were other  there were other cell phone records not link your client the other people's phones didn't link your client or did it it's unclear from the trial record whether they linked my client that is it to your position is not what on the phone so much is the fact that discovery of the phone itself right that's the direct that they failed yes they wouldn't found the phone at all the home would have remained lost they work that way i want to make sure this thing which you're going to because you're getting to a point is important for me what are you agreeing to but actually i was i was i wasn't i was you're right i'm not agreeing to just the use of the cell phone the fact that it existed in the in the in the patrol vehicle the border patrol vehicle i'm also arguing that it is the contents of that cell phone it is the cell phone you can't separate you can't say that a tires a tire but not the wire that the fibers in this one that's where i'm going because it seems to me that the object of that that search the reason they wanted the phone was not to prove the existence of the phone or not to prove that he had felt no other words they didn't want to just get a cell phone and never turn it on the object of possession of the cell phone was to get the information that was on the focus you agree with me three and and two fold that a phone existed and that's why i felt that when the district courts say well everybody has a cell phone and so we're not in the courtroom but outside yeah everybody probably has a cell phone that was kind of not a very logical argument to make for the admission   when it came up again when it came up later on in the in the trial what happens is the judge oh no that's terrific use and he never mentioned anything about any case like it read he just said history of interviews and so he admitted the cell phone at that point pled guilty in this case you have a case for my client pled not guilty went to trial and then you have us the ninth circuit case which is another one that i thought was kind of close concordant but there's not much guidance or as to the definition of derivative and direct use and you know if so you just you just want to distinguish is that what you tell i want to distinguish barnes in the fact that in that case it's a different situation because in that case mr barnes wh my thinking the logical deduction i was making is it's direct use is not the court decisions and the precedent it's hot there's talk about direct use they don't say testimony use it basically saying well it's functionally it's the same thing using servando said his phone was in the truck you can't obviously can't do that what the government did in this case is the guard the phone was down in the truck me it's the same thing except you're leaving out the part that he said will surround it said but there was no independent source that could come forward and say well you know my eyes are going to be if the eight if the government had called a witness  derivative leads names of which other information and they referenced those in the argument section as what derivative might be i don't think that the cell phone in the contents is a lead well it's not a statement but it's functionally the backdoor way of allowing the statement to come in the courtroom because that's basically what you're doing because we allowed the evidence to commune about where the cell phone is the only way the government knew about inet the inevitably whether it was it was inevitable to be have been have been found is is applicable in this case i think that doesn't apply here i think i think what applies is whether it's just plain simply a direct use of his testimony and i think i just don't see how you can say that the only difference really the only thing the functional difference in the courtroom in front of a jury is the differences servando says his cell phone is in the car in the patrol vehicle or you have somebody say the cell phone was down in that for show vehicle i mean it's the same if you're saying the same thing to the jury it's it's just you know you're using his testimony against him and that's that's that's were also you know when i did the research and i'm looking for guidance there's really not a definition of this is derivative and this is direct use and i if that is not direct use of evidence then what is that's that's the problem and everything then is everything through you what would other than his actual confession of guilt but it is that's correct your honor and we have established harmlessness in this case in a variety of ways the primary complaint that the and it makes about the use of the cell phones contents of that it is that it leaked into the  cousin cell phone were discussed and those linked the defendant to the cousin on that day so this is a situation directly identical or directly analogous to this court's decision in escambia where there were two cell phones and one of them point to the record it twenty one fifty four and twenty one fifty five the other two coconspirators who were linked to di defendant through the cell phone were linked to the defendant in other ways there was a woman who was renting trucks that were used as load the nickels and she was linked to the definit through documentary evidence and also the defendant's presence at the scene of two load vehicles that were rented by that particular woman both on the day his arrest alongside his cousin who was driving one of those vehicles and a vehicle that was stuck in the mud close to the real prize where border patrol agents encountered the skier cole they knew that of the eight they tracked the footprints back to the river and they saw coconspirators testimony so for those reasons we think that this court's harmless error standard which is substantial evidence supporting the same facts would be met here but i wouldn't want to suggest that we're relying just on a harmless  here because we do believe that this was a permissible use of the contents of the cell phone if the defendant and his counsel agreed that the government could use any investigative leads suggested by the defendant's statements and that's what the government did before the proffer session that was protected by the agreement we already knew that the defendant had a phone we already knew the defendant's phone number and we knew that because the defendant made him grand i statement directly after his arrest where he disclosed that to us we had also gotten a search warrant and tracked the phone to the border patrol transport vehicle so we knew that the phone was within the border patrol transport vehicle somewhere now what them he had to disassemble it disassemble the ac unit that was part of the transport part of the transport vehicle this is a big pickup truck with a enclosed unit on the back and there is an air conditioning unit within th enclosed unit and to get to the cell phone he had to take apart that ac unit and take it out in the trial testimony established that that's the mechanic testified and he explained how he did that in this instance but dropped it down a slot and the only way you can get that cell phone out of the slot is to take apart and i make a big deal out of this only because you all seem to make a big deal out of the fact that well we knew it was in the truck but we had a government we had to take investigative leads to find other evidence that we can then get a cell phone get a search warrant to search a search which is in the glove compartment and they said i stuck it in the glove compartment and all they got to do is go in the glove compartment you still would be saying it's derivative it's not because it was hard to take apart is that our or is it because it was hard to take apart it doesn't it doesn't hinge on the difficulty of taking anything apart and if we've been able to get out of the club box it wouldn't have  it would still have been a derivative use because again we're not using the defendant's statements in this instance we're not telling the jury at any point we never told the jury that the defendant said i concealed the cell phone in this way instead  recovered the cell phone we got a search warrant to search the cell phone and then we put its contents before the jury and that was what the object of that search was never just the cell phone wasn't i mean if you got the cell phone and agreed that you any other evidence we could derive from the definitive statements all of that evidence that we could recover based on the investigative lead provided by the defendant's statements under the agreement under the proffer agreement the proffer agreement proffer letter provides that we may make derivative use of any investigative leads suggested by any statements made by the defendant and that's what the defendant and his counsel agreed to when he sat down to to to speak to the government  and he said i have hidden some drugs in my house and you would go to the house would that be driven and then you found the drugs and you match them up some scheme of  said that he was keeping drugs at his house so he can't now say he didn't know there were drugs at his house is that is that you couldn't do that unless he came forward and said i didn't know or something in less than agreement provided for substantially similar to this one and the court in that case explained that the only thing that this is a narrow form of the need or the narrow unity and the only thing the defendant is getting in this kind of immunity is not to have his statements used against him at trial similarly of the second circuit in the ransom case said that this is a broad waiver of the defendant's other rights the beacon that would have so in this case the defendant and his counsel bargain for this kind of immunity the government stayed well within the bounds by never attributing any agreement case at all involved the propriety of looking at somebodies phone whether that's i mean our circuit has been pretty broad about that other circuits have not that's percolating it is your honor and we were very careful in this case we got a search warrant to locate the phone by its number and we also got a search warrant once we recovered the phone to search the contents of the phone so the propriety of the search not only has it not been briefed and therefore it's waived in this court but it shouldn't be an issue because we we obtained search warrants at every stage for any kind of thing that could be considered a search for this phone i if there are no further questions about the issue of the evidence all turn briefly to the sentencing issue the acceptance or responsibility and there we would just point out that there cannot be any plainer for this stuff forfeited issue they defend it i did not plead guilty and he could have i they defend complains that he didn't have an opportunity to plead guilty but of course he could have pled guilty to the first indictment which was on the books for several months and then when the new charges read it in the superseding indictment he still had the opportunity to plead guilty to some charges but not others and it was also found in an uncontested ruling in the district court to have obstructed justice by telling his sister not to talk to law enforcement and telling his sister to hide to god so there could not have any clean air clear air on that point and in any event there could have any effect on his substantial rights because the citizen range that would have applied even if the defendant were correct about acceptance responsibility corresponds to the the bottom edge of that range corresponds exactly to the very incidence that the district court imposed in this case so for those reasons we believe that it's clear that the defendant was not entitled to acceptance of responsibility a lot of things going on and it was a situation that came up later when you really start to digest and look at a case but there really wasn't an option in this case to take responsibility of just a drug counselor you know it is that hobson's choice i refer to my brief have the option of just clean guilty to just the drug counts because he was charging me the five kind i mean and in going back to the cell phone again and the use of the contents of the cell phone  early on in the in the case in the trial record you'll see that the government spends a good amount of time in expert testimony agents experiences and talking about how drugs all drugs multiple drug smugglers communicate with each other and they go into at length as to how they use the cell phones and how they communicate with each other and and so the government can't stand here and say that it was not important and critical part of the case and evidence to find my fruit of his testimony it was a fruit of his testimony it was not derivative use the others if it had been another witness testifying about the cell phone that would have been derivative use but it was the cell phone so that's why would appreciate your service to the court in this matter if you are your client thank you's yes you may