regards to my name is tony gallagher and i represent mary ellen spotted bear on the federal defender for the district of montana and i'm not in good voice today i've got the same credit everybody else in montana has right now you are as i raise three as you issues in my brief to with respect to expert testimony in the final with regard to sentencing i'm going to focus on the second of the two issues that i raised in my brief if there are opinion which violated we believe this started players right to a jury trial in that he lin curds the expert called by the government gave the ultimate issue question answer the ultimate issue which was to be answered by the jury in the jury alone and that is whether or not she could operate a motor vehicle safely i think this mission that she was in which the government claimed that she was intoxicated do offer opinions of that nature but of course in this particular instance because her level of alcohol intoxication was the issue that the jury was supposed to determine if it was an element of the offense it was the ultimate issue that the jury was supposed to determine and by ensuring that question even in the form of a hypothetical which most respectfully your honor we believe was a canard i mean if whether he says individual or whether he says mary ellen  issue that it should not have been allowed at all because it was so long from the event itself the action itself occurred as early as five fifteen in the morning you are that type of vehicle under the influence of alcohol but doesn't this tend to corroborate other evidence that she had been drinking around the bar and that she was driving the vehicle it would tend to corroborate other evidence of course but that's all it is the fact that she had a and an hour and a half after the accident israel what is not relevant is the fact that the government was allowed to go that one step further in that they said someone with that the a c would not be able to operate a motor vehicle it violates the motional in the name of was actually you know it wasn't the objection i made because of the court and i am sure the court has if you view the excerpts here judge hadn't allowed allow me to go any further nor to argue any further with regard to that particular motion at the time that you have objection was made so i mean we're left with no explanation for why i made that argument but now i can tell the court that the reasons were multifaceted and one was that it went beyond th jury determination in the case and that is whether or not the spotted bear was operating a motor vehicle under the influence of alcohol on that particular morning i was not able to find is the record any request on your part or cautionary instruction to the jury i did not make them that would have been that that would have been the right thing to do at that time but i did not do it  to prevent the government from making these types of presentations to a jury and violating one's constitutional right to a jury trial to have a jury determination of all of the elements of the offense by allowing in the offer alternate issue testimony s calm if we knew that she had a point when they did the time that she was operating a motor vehicle in other words immediately after the accident they drew blood and had that test would that be a problem i certainly would think it would be a problem it still is violating the ultimate was operating a motor vehicle recklessly for instance if you was operating a motor vehicle in gross negligence that would be something not amounting to a felony which may have led to the death of mr udell mind but in this particular case by allowing the government to give that testimony that she was operating a motor vehicle and safely because she had a point one eight an hour a half after the after that violated the jury's determination of that if what's the basis for your argument and i work in practice in the great falls division i too will concentrate on the second issue raised by mr gallagher and in particular what i would point out is the question is phrased to mr kurtz was in fact a hypothetical question it was should hypothetical person that the defendant differs from such a hypothetical situation and that is is what was the case in this instance on the street gallagher was able to conduct an extensive cross examination of mr cur what are metabolism were a number of factors along those lines and certainly in that instance the jury could have decided that message spotted bear would not fit the circumstance posed by the hypothetical question and i think ultimately was a suggestion that we would say this person was at a point one eight one and a half hours after the accident and that based on what we know about it so our shannon metabolism the things of that nature that this person with a different  confident taking after a jury a certain range of me it has a certain range of meaning but when in this particular case because it was such a close call because of the type of individual that she was and it is that testimony by mr kurtz so violated her right to have the jury determine they have one of the offense with regard to in driving under the influence of alcohol and that's why we say it's not harmless