five day trial the jury does come back with a special verdict form a special verdict form does show that the jury thought that pedro was responsible for less than fifteen grams of methamphetamine the judge set up the sentencing schedule they did a pre sentence report at the time of sentencing we appeared and the government put it on the probation officer some are seizing and missing proceeds to go through the discovery and then the discovery client and her her husband who is represented by mr gent during the course of the trial there was a telephone conversation which was recorded when my client husband call from the local jail like to the local jail i mean the jail in billings montana my client was not yet incarcerated she was back in california she never set foot in montana had never seen the building jail or or anybody from billings before gonzalez had called on a collect call from the all time county detention facility on my claim both marital privilege and the court admitted the statement over my objection saying that's because there had been a warning on the jail telephone call when you when you make the call from a detention facility there's a warning thing the call may be recorded well both my client demister gentz kline speak spanish is their primary language they have very minimal english speaking skills and more importantly my client wasn't on the telephone when the call was answered taken at her home that was another individual the only with this performance and i'm sorry that was the warning in the recorded telephone conversation that the respective party should not have had to an expectation of privacy for marital communication my argument against that is both that the warning was in a in a foreign language to them and that my client wasn't present on the telephone when the warning was given therefore the merit of communication should not be covered by the the warning and i tried to parallel this to a miranda issue because if a contemplating what the warning means and as i said in my case my client wasn't even present on the telephone the warning was given anyway the government tends to in their opposing brief attempts to classify any communications between the two spouses being some further ends of the conspiracy while my client had no connection to the conspiracy other than what the government attempted to present through these communications in other words their bootstrapping they're trying to say that and gail williams came in on rebuttal testimony and gave opinions as to what some of the the words of the phrases mess now mind you this conversation took place in spanish it was translated to the jurors in billings montana could understand an english agent williams took these now france plated phrases which contain relatively innocuous words and offered his own opinions  what some of these phrases math like what pesos and storm and now i know that it's a longstanding principle that da or other trained agents can offer testimony to explain what and what terms of terms of the trade means such as been mills or shooting up or things like that but that that same standard your expertise does not relate to and not to his words that an ordinary juror should be able to allow a police officer to get up under the color of his authority and offer opinions about what these words mean it's an invasive province of the jury it sways the the jurors outlook on the case because  person who's testifying supposedly has some degree of expertise even though his training not only doesn't cover spanish it doesn't involve anything about what a store pace or a pronoun means well when it comes you know from i think  opinion would be as to you know what whether it's point range morrow it's not based on his experience my objection had to do with his opinion on the ultimate issue i don't question his credentials i'm just saying his training had nothing to do with the issues of to which he spoke of and more importantly i didn't think that the communication should have entered into that the evidence in the first place because follows completely within the province of the marital privilege and the the reasons why there are other people there other people there anyway during the conversation telephone conversation not that i'm aware of there is no evidence indicating that there was anybody within earshot of the of the telephone conversation there was there were other individuals home in the house in other rooms for my client was speaking on the phone but other than that now and  answered the telephone initially mr gent clients spoke to her briefly asked if his wife was home she handed the phone to my client and then the citron mom left the room there's evidence as she left the room and the only decision we have so far in the circuit that so i start mr united states of america versus patterson it is crystal clear that the defendant could have played guilty but contested the know now that drug quantity is not an element of the theft and therefore this court should remain in this case for recent using that's most of the two points for acceptance of responsibility under the cure but as far as whether he accepted responsibility for the offense a drug trafficking offense with which he was charged he did that he admitted that he transported methamphetamine to montana with the other people  doing so he was guilty of the conspiracy he's totally entitled to admit to a drug conspiracy yet contest the amount involved in that conspiracy at sentencing to say well he got convicted of the amount of the advance ignores everything that was decided in thomas and patterson and indeed even likely it's not a blakely issue personae because he was convicted beyond a reasonable doubt but all those cases read together and the proposition i'm trying to set forth that of the court is a defendant can plead guilty to an indictment but contest the amount when he has a police remit if he plea agreement he's found guilty beyond a reasonable doubt when the judge accept the plea if he goes to a jury trial he's found guilty beyond a reasonable doubt and he can also be found guilty beyond a reasonable doubt by pleading guilty whether it's that is an initial appearance or some point there after in all of those cases the defendant pleads guilty and in doing so under three one point one exception responsibility for criminal offense  found in his letter to his wife words actually says i'm a bit but you're glad i'm not hitting you anymore and other words admitting that he was a spouse abuser i was prejudicial he found that it was prejudicial before the government put on but the judge could have severed the case to a spontaneous and counsel at the time could have objected but neither of those things happened and so the fact is your honor this was found by the judge to be trial judge that it was overly prejudicial and i guess that's the most important authority that i have that it was more prejudicial than probative because the judge that heard the evidence and heard all the evidence since there may not me a need for remained in the district court would have to wait anyway i would suggest that it would be appropriate of to hold here that in fact there are arguments that we could make i do not know whether they are players i haven't we haven't responded to th but play at that it was not raised in the district court so perhaps it's not played here just for example i so therefore i would ask for the opportunity to respond at a time to be set by this court that's our request the person on the other end knows that the other person's in jail they're talking about the general perception the jailhouse her communications are monitored but we need we're not we don't have to we're not stuck with just any was just that although those first two or three cases in the conversation there's an explicit advisory system the inmate when they're making the call gets to choose between there was the argument made about this was an english for the spanish the there's a couple points i want to there's a conversation if you read the conversation itself you will see what appears to be conversation about the system that is to have it have a make the record of the call  i think so because he's it's confidential report is that he is having parties he knows but if you if you actually read the conversation you will see that not only are they handing the phone back and forth between  the it's not council so that there was testimony that the person the person who handed the phone to her had left the room i am not aware of any such testimony no one who was in the room testified to my to my knowledge if you read the yes that shows that they were you know at least relatively and the but i think there's even i think the whole context of an inquiry is safe as they go back and forth shows that they probably were not  another room they were closer by  they knew what they were doing with respect to not just that the morning was on the recording of course it is because it's it's recorded it was transcribed but this court made a finding that they knew what they were doing and even if this was this was intended to be confidential even if they were whispering in a back alley it wouldn't be covered by the privilege because that apply to their partners in crime the out of there elaina has it that's a conversation about moving the drugs test and that's not covered by any sort of privilege because they were both involved they were both in the context of the recording he did give a meaning for that the store the store she rented this discussed in the conversation referred to the storage room that she rented that  and and yes he ruled it was present prejudicial evidence of spousal abuse is not helpful to understand it wasn't relevant to the case the question is is this rel government was for duty tori's purposes it was relevant it was highly relevant to her defense it wasn't outweighed certainly not substantially outweighed and the court although it did on the acceptance of responsibility point first point that just pleading guilty or going to trial isn't decisive on acceptance of responsibility whether it's gone whether you want to plead guilty even if you wanted to plead guilty to the whole indictment isn't zero quantity indictment or something less than the jury will find but whatever the nuances of that might be it's certainly not plain error in a case where a person has manifestly not exhibited any are well i think the government's position is this does nothing because it doesn't affect the guidelines at all but skipping skipping past that then it becomes a matter of if you really  ok you have about a minute now ok that's fine first of all the district judge when he ruled on the marital privilege and anything about other people being in the room on either end of the telephone that privilege was thrown out simply due to the fact that there was a warning on the recording in this case i stick my original argument independent of any conjecture from appellate counsel for the government about other people being present and respective rooms i submit that because of the trial judge's rulings with respect to those warnings that ruling is this is faulty simply due to the fact that the warnings were not given at the time my client was on they were talking in english no they were both speaking in spanish the translation was given in court and that's what agent williams commented on ok but it was a spanish conversation which have been translated f