is right by striking three of the four hispanic jurors from the jury panel this court should reverse for for two reasons st the government explanations for striking the hispanic women from the jury analyzed in the circumstances show that they were pretextual they wanted to exclude jurors that looked like a minute nd the court engaged in virtually no analysis after the government gave it that nations simply credited the government's explanations and denied the challenge and we moved on with the trial the government proffered sort of two categories of explanations for the exclusions of the three hispanic women the st was the their conviction their family members that had convictions for criminal offenses five jurors had relatives who had been convicted of crimes two were hispanic females both were struck by the government the others  not neither of the two jurors that were excluded presented with any resentment towards that was criminal prosecutions in fact neither of the two had really any detail her guarding their family members case during   their their expressed opinions related to narcotics and there was very little follow up with respect to the details of the of the jurors opinions either at sidebar or an open court the record is very unclear on the specifics of the problems the very the jurors themselves had during number sixteen was a hispanic female that was struck by the government again very little detail  well i think i think two things one you can do the analysis separate district court did not do and if you did do the analysis it wasn't articulated in any in any sort of way it was very quick  we're doing the analysis for the st time here on appeal and then when i say the analysis we're looking at other jurors that the government struck or did not strike discussing that and instead what you see from this record and you and i understand the deferential standard but the record shows that of course a transcript of an have a timestamp in terms of each answer but i can represent that it was very quick the court was very quick to immediately dismiss the challenge that was made and and credit the government's explanations without even analyzing or even providing for this court an insight into her thought process as to why she felt those answers were appropriate so i think yes the court is clearly deferential but i think there is precedent in this court jordan for example and barnes those are cases where at least the court is expressing that there has to be prong three that the court does lay out their rash its rationale and can't just case wouldn't that be a difference where there's jurors st we have no idea what the jury said was i think it was a done case but she didn't know she literally had no idea about the fact that she was a child at the time and apparently had not learned any more details of it in time and so nothing was discussed nothing was there was no detail there and all possible that somebody might think that that would be a reason for striking a course that could be a legitimate reason there's no we're not making the argument that there aren't legitimate reasons it's that you have to look at the totality of the circumstances number one we were i was as a trial lawyer in this district i was hoping i guess to have at least jurors that were hispanic females and on that representative of my client i was delighted to see that there were four  she wasn't sure she could be fair and she was resentment toward the police because of that experience i don't think it was that clear your honor i think that she wasn't sure if it was fair i think  i don't think our challenge is really ok not letting us just ask about the child right one that was sort of setting the stage a little bit for how close he was with the family how close he was to know their children and know different family members the most important aspect that i take from that my cross examination point is the following which is that we were entitled to present a case that the trips were primarily social for miss so for miss a minute what the judge did was made a ruling and a finding that these were dual purpose trips and the only thing she was going to let me do and it was very clear and she was very very clear about it that i could establish that there were a dual purpose for the trip she stepped into the role of the fact finder that's what a trial is for we're allowed to present that it was purely minus the government was permitted to put in everything about drug dealing and that's fine and that what she did you actually make a ruling that they were dual purpose trips or were in response to your argument that showing that they had a social relationship would show that they were not criminal trips the judge said well they could be both and so i don't think that theory would preclude showing that there was  criminal activity going on right so what so in essence her ruling one of the following if it wasn't explicit order which was i'm going to exclude anything that doesn't show that show that it's purely social and you know the government for example i'd ask you to flip the fact pattern for a nd and a hypothetical and if the government had photos from one of the defendants phone that show that the defendants were spending lots of money possessing cash in a social atmosphere they would have been seeking to introduce those photos and arguing that the the social aspects of the trip were related to the drug dealing they were spending the proceeds of their criminality and you know what they would should have been and would have been allowed to do that they do it all the time there's no issue really and we generally don't have much argument to preclude that on the defense but i should have been allowed to pursue my theory which was that if mr morel and mr soto were engaged in drug dealing we were not it was purely social we missed the men it was spending time with other members of the family on trips to the lake or whatever or just hanging out and i had hundreds of narrator three or four in the morning and i don't think there's a single trip that she went up and didn't stay overnight so there overnight trips for her and sometimes they were at night and if we were permitted to evidence of that and so being allowed you know a jury sitting there saying oh well where's the evidence of all this social of all this of it being purely social well i wasn't allowed to do that you know that's fine i think  examination you know i tried to be as tight as possible and then we ran into roadblocks here and there as we do in trials you know i don't i don't know i think in the context of this case alone i think that i don't know half a dozen wouldn't have been a big deal depending on each photo i of course the government could look at individual photos say you know there's an issue with this one because i don't know maybe you're showing a kid's birthday party or something and you don't want to show too much sympathy or something like that i suppose they could make that argument i just simply wanted to show that there was documented photographic evidence of her engaged in social events there to make that argument the government certainly could then say well you know you heard from our cooperator here's all of the evidence that they were doing other stuff and that it was dual and you know i would note that the government the ridge national argument in this case i guess an opening belin yes good morning and ma'am please the court i am sane read and i represent the government this case and i also represent the government is being recorded only the main conference is recorded  there was no bath in error in this case let alone clear error of the sort that would warrant a reversal under the standard of review that the couple here the prosecution offered race and gender neutral explanations for it for strikes and judge for prodi found those explanations to be credible and notably the basis for each of those explanations is clear from the record and these explanations identified a reason that were unique to the jurors who were struck with respect to the cross examination issue the district court committed no error and limiting cross examination of one of the government witnesses the precluded cross examination dealt with topics that were uncontested regarding the fact that there was socialization on some of these trips to boston back th witness who was being cross examined had already acknowledged and facts that were entirely collateral the issues and the trial and marginal relevance about giving the district court significant distraction discretion and directing the motive examination of witnesses there was no error here and again certainly no reversible error especially given that the court would have to find the error was not harmless given the overwhelming evidence of guilt here it's clear that even if the court were to find that there was error it would be hard  overwhelming evidence of guilt in the case and the relative the marginal nature of the of the examination that was affected by it but our primary argument would be that there was no error here it was clear that the district court had legitimate concerns about the purpose of this cross examination especially in light of a comment that had been made by the defense counsel in its opening statement suggesting that the defense counsel is trying to put sympathy for the defendant at issue at the trial and so  given that context the court's decision to limit the admission of photographs documenting events that had already been acknowledged to existed and that were in dispute was an appropriate exercise of discretion and help out  argue that there was no improper comment by the prosecution during the summation the comment challenge by the defense when it's looked at in context was a reference to the defendant's conduct and statements made before the defendant was arrested and it was therefore a wholly permissible argument for the government to making and judge her pony specifically recognize that there was no intent by the prosecution to comment on any post arrest silence now i acknowledge that in looking at it sort of on the page in black and  but i think that that would be to divorce it from the context of the remark which we tried to explain and more fully in our previous this was a an unusual case in which the defendant had engaged with law enforcement prior to being arrested prior to any miranda warnings and had made certain statements that the prosecution argued to the jury were inconsistent with the version of events that the defendant testified about a trial and it was of course fully permissible for the prosecution to draw out that inconsistency and explain that an innocent person wouldn't have acted the way the defendant did when the initial contact with law enforcement prior to the defendant's arrest took place now again i think you pointed out that if you look at the sort of the statements right at the end of that like the excerpt that we provided in our brief it is in artfully phrase that i i think we would acknowledge that but we would submit that judge for probably i think appropriately recognize that there was no intent granted the defendant's request for a curative instruction which the jury is presumed to follow and ultimately i think the overall trial record here is quite clear that any error would have was harmless to the extent that there where just and there are a number of cases with similar fact passing comment by the prosecution where this court at other courts of appeal to recognize that even at that comment were error it was harmless in the overall context of the case and the strength of the evidence which in this case night i mean how is that what is the context that shows that you're not talking about what she would have done after being arrested yes your honor so be it was undisputed and it was testified to both by the arresting agent and by the defendant that prior to the defendant being placed under arrest she had shown her bad and had told the cia agents who were on the scene that she was quote on the job and when she testified at trial she claimed that immediately before that confrontation she had discovered to her surprise that she had twenty five thousand dollars in cash in her hand g so the argument that the prosecution was making here is that so that they should have stood have said something in the process of being arrested to explain what was going on and that's not the same thing as saying she should have said something after being arrested yes i think again that's where the an artful phrasing comes in and it's not really a reference to being arrested at the reference to being approached by law enforcement as the intent here is to say law enforcement press you have just discovered this highly suspicious circumstance you yourself are a law enforcement officer an innocent person wouldn't essentially attempt to waive all but you know argue or say look you were telling the jury to make an inference about  guilt from her failure to say more when being approached by law enforcement that obviously was going and they were going to arrest her well it wasn't clear at that point time that they were going to arrest her and in fact  wasn't arrested until several minutes later after they had conducted some additional investigation and they had yet to discover the cash at that point in time that it if i could just jump in there this is this is judge committee i read the statement that you know wouldn't this be something you would mention to refer to potentially the moment of the discovery of the catch and so can you clarify the timeline for us you know the relationship between the discovery of the money in her purse and the timing of her arrest yes so they had pulled into their apartment in their car at which point they were approached by the dea agent the dea agents at this point in time are not planning to arrest because they have yet to see sort of step that that would give rise to a basis to arrest according to her testimony she had just woken up in the car and discovered that  unexpectedly to her there were you know tens of thousands of dollars of cash in her handbag and then she gets out of the car shows her badge and says i'm on the job the officers that comment attempting to wave them off and so what we're arguing is basically that you know she made this comment when being approached by law enforcement prior to being placed under arrest prior to them discovering the incriminating evidence but after she herself a dmitted she knows about it and so that's what we're saying is that making that comment to essentially try to get them to leave is not the way that an innocent person would have behaved in that circumstance and that is a permissible argument i think everybody would agree that arrested it's hard to interpret that phrasing as as referring exclusively to the pre arrest period and that's certainly i think a fair point and as i've said it's certainly not a phrase that when i looked at it after the fact i realized why the objection evidence of guilt and just sort of says you're not allowed to alone on it should or what you just heard from the government your honor i think that the instruction is appropriate i think it's in line with the way that courts typically would instruct jur after something has been said whether it's a by a witness or by an attorney that the jury has to disregard and i think that you know both parties agreed that the instruction was appropriate under the circumstances and so given that a given that the assertion why shouldn't we say the district court should have said well here's the government's argument for why this was a permissible reason to strike the juror and i find it persuasive for this or that reason in the context of the overall circumstance i think that what the bouncing cases say is that it's a very very fact specific situation you're dealing here with a situation where jessica prodi had observed the jury warred year was observing the the reason being offered by the prosecution made it clear that she remembered the specific responses that the jurors had provided that had led to the prosecutions strikes and given her clear familiarity with the facts that she had observed within just a few minutes before this occurred there wasn't the need to make a lengthy record that there might be in some cases and i think that there are a number of cases where courts have upheld a judge's accepting a prosecution's explanation that are clearly supported by the record without the need for searching additional inquiry i think it's notable here that as i mentioned earlier each of these reasons were unique to these particular jurors and were tied to issues of particular concern that phrasing i mean the relevant section is a two hundred and fifty seven in the appendix that she said that her father was in jail this she believed it was for firearm possession and you know notably she said that her father was in jail while she was growing up  so you know i think there was a reason for the prosecution to be concerned that even if this juror said it wouldn't affect her ability to be fair a trial having that level of sort of immediate family members there was a prospective juror who said that her mother's cousin had had a drug conviction conviction approximately twenty five years ago that's it appendix three hundred and thirty three we would submit that a mother's cousin's drug addiction in the distant past is different from somebody's father being in jail for an offense that charge in the case well that person was growing up and i think it was a valid reason for the prosecution to be more concerned about prospective juror or than that other juror who mothers cousin had had a drug conviction may only that's the only comparative or i think that the defense raises that even remotely close to the jurors that were struck in this case and so i think this is a case where about an issue really isn't particularly close as judge her pony recognized you know and  there was no need to make a lengthy record unfortunately i think that that flies in the face of this court's precedent this court has stated we also have disapproved a trial court conducting its review of the bateson application with an do haste and ruling in a thumb mar well i intended to talk about before her arrest well you but you did not i mean that might have been your intent intent is not part of the analysis in artful phrasing has consequences and i think you know this went in with the jury to regardless i of course asked for a mistrial and i and you know i had to take the consolation prize the of a of a limiting instruction but you know arthel phrasing has consequences and don't know i have no idea i don't know if that tipped the scales for somebody in that jury i have no idea and i also don't know if anybody sitting in that jury box said you know she said this was all social i mean what evidence do we have of that just her word and the guy said yeah there was a social but that was all drug dealing what evidence do we have of that you know i don't know what happened and deliberations but you know i think that  inclined to be persuaded least by the even understanding the concerns that you rightly raised about the boil issue ready limitation on cross examination  found in her boyfriend's thinks there was drugs found in her boyfriend closet there were trips that were made cell look at that fellow patient data stablished trips that were acknowledged by the defense trips that testimony from the cooperate or one of the operators that she was on trips to pick up money or deliver drugs on which her boyfriend was not also present there was which was which made it even more confusing when that same eight or testified well actually when the same cooperate or stated as his plea which i brought out at trial and at trial and he had no idea what her role was no idea bizarre and i think raises serious questions to her guilt and i think would raise serious questions in a jurors mind too and if given the opportunity to try and show hey what are you doing on these trips let me show you what we're doing on those trips you know and so i  but the trips with the cooperate or were bored all the credit were you arguing that those trips simply didn't happen or that those were all those social drivers so those were local trips that they were that he was saying he was saying that he had gone around locally with her