appeal to the jury in this case was a constitutional violation and nd the government subjected miss comment to custodial interrogation without miranda warnings your honest this case is about an overzealous to the jury it is irrelevant that the naming of her business celebration all remembrance of a mass occasion and the promise of compensation that does not thirty two now was what's notable in this case in which you don't have in most cases that touch on this issue is that you have a juror who reacted very physically  their concern is concerned as a result of the last statement that forty years in the middle testimony expressed the jury expressed a clear emotional side put his head in the sand and was shaking his head the court government is arguing that that phrase is evidence of criminal and sent that phrase alone also exactly it's equally but i mean even if you argue it and understand term and thirty two think the question was and why did she call it that and the answer is forty acres and i mean i will comment give me mine now right so the government didn't just say the name was forty acres and a mule the government said forty acres and a mule give me mine now well the her have st testimony about forty acres in the mill there was no there was no test trying to perhaps give you raise some argument that maybe that's what may this otherwise not negative name forty acres and a mule attach it to some negative doesn't necessarily mean that the judge simply because he's african american you know it does here in the way that it doesn't necessarily residence but it is a factor that may be a factor but it doesn't necessarily mean that he would hear in a way that someone who may be i'm sure all of the other jurors heard that testimony and saw that jury's reaction and regardless one doesn't necessary we just happen to have a great example of and most you know with a rational reaction  what what this struck him i mean it can't be here didn't ok i heard that i knew that they were out to get african americans or did i say i heard that and i laughed or i i don't understand what what did he say that he had i understand he had a big reaction or do we have in this record what he said why he's why he has this big where you said he said it was an emotional reaction to the testimony or it was not right not an intellectual one an emotional one right answer forty acres and him you know made me go over the line got you but i don't know which way he's going to go it looks and sounds like he's a statement of entitle meant to a certain group of people who believe they should get something because their ancestors were enslaved and there's in there's a resentment from certain members of the populace without any real realm of relevance here if you don't there isn't overwhelming evidence but you don't even have to show that this is a structural error you can't do it no matter how much evidence you have instances where it's more evident as a directed because you happen to be tickle racist this is something that was said to a group of people and you get get it and then you say and it just so happened she's been got it the government has to show that it goes to intent and will finance there's there was no mistake here to business because you name your name your company something doesn't mean that you w are reasonable doubt determination so in terms of the sufficiency of the evidence based upon showing that there are facts that establish she did it is there the only question is is a sufficient for reasonable doubt with this a created a reasonable there the case law is clear that when you have an appeal to racial prejudice it doesn't matter how much evidence you have that as an offense to the constitution and fences to any criminal i mean eggs last question  it would be like you know they wore black face you don't tell my i will black means you already know that has a negative connotation so my question is at the start this trial i cannot imagine a lawyer who would have a case with wh they should i told them not mean that but i'm looking for perspective of the context of this statement and how it's used here you've got to really reach far to get it to be a racial stereotype and if you do show that prejudice is a big ridge i mean there are racial stereotypes and then we cannot use cases like this where you have these kind of racial stereotypes so when you got to really figure out what it is regarding like the trial and the point in time which this issue was raised to trial last not a couple of days six days is my recollection this testimony occurred on thursday through two witnesses through my review of the record this is the only two occasions on which this testimony was elicited or referred to i did not see a single reference to it in any of the opening or closing statements or the robot to address and can you identifications to this cabin for the purpose of mrs cotton preparing false tax returns the question and i'm going to a little bit based on my memory but i believe the question was what did forty am tax of a stand for the answer being four years in a m and what did miss cotton tell you it meant give me mine now they were ms cottons words as to her the name she chose for her company that she used along with misha to prepare for th closed to a question of whether there's a credibility situation and did a defense present evidence to say that no this did not mean that i i do not recall any cross examination on the meaning of that phrase of any of the conspirators specifically not of brown nor do i recall any argument during closing arguments that it did not mean what ms brown said that specifically i don't know and this the name of the company was elicited through the testimony of money the government of gallery if this if there's an opinion of this person then you've got something but if she is saying this defendant said this and you know she's she's she's making this up or something like that one doesn't mean that another it happened no you're not to my recollection and to get to judge factors regarding presidents your honor is absolutely right that to the of document i have to study this little bit more but i think from an evidentiary perspective we get about it and i understand racial prejudice could be there but if it arises from the defendant and that is what they're being charged from sometimes you can use things like that you think for your own advantage and that's the allegation that even though it's a racial stereotype this defendant was using a racial stereotype to for her advantage is that what i understand is going here i  believe that the are you asking us to appellant's argument as to what is actually it seems like that's what it appears as though this is what this testimony elicits the testimony elicited the name of the company and her purpose in naming the company was give come to get my something like that it's probably a tip i agree with you wholeheartedly and i believe just judge russell agreed with that as well when he made his finding for that purpose that's the pro devalue it well it's true or not you know something cross examination you come back with additional evidence but i'm having some difficulty absolutely and certainly i would argue that there is no unfair prejudice in this instance when it was in fact the defendant herself who selected this name and gave it its means that certainly the defendant is not in other words you're saying in the a different case if the government alleged the court call racially charged language from the st sentence of his opening argument to his final so little a far cry from what we're dealing with here the two references made by witnesses on the stand as  black man specifically the court argument by the prosecutor in that case i argued to you that the average white woman of course anything of this type of nature that had to do with a black man it is innate within us are not what is questions freely in her home around there how many police officers greeted her as she came into her home that so she drove up to her home crying with officers came out to greet her and then how many were there  conducting the interview number two right but he took us through the house and she then when they were searching all over the house he took me down to the basement confined area your i had twenty agents running around my house i'm not sure record there is a description of the of the basement there is description of how the agent sat on an l shaped out in that base and i would know that the if we're talking about whether or not miss cotton was in custody during that interview i think we should barclays one of them is an eon now but most importantly as to whether or not she felt free to move around and free to leave at the end of the forty five at the end of the forty minute conversation she has her purse next to her the ball rings and she takes a five minute phone call in the presence of the agent there she goes cheap get your privacy because she's talking to her lawyer he says don't talk to the police and she felt free to pick up the phone and i think that is some of the best evidence as to whether or not the defendant did not feel free to move around  interrogation didn't take place in the finished work in the basement it took place in a storage room adjacent to the spanish portion of the basement that was a nineteen year old boy who was roused from his sleep in his boxer shorts marched downstairs with someone holding three hours in that basement storage room while his mother asked three different occasions if she could get access to him so that he could go toward her and she was the not you know i think it's actually different than that usually when we look at these cases we look at several thing police say that you have a right to leave not happening here how many police there are here whether the police or are they are here how long the interview is it's long here go inside and in fact she was free to leave as evidenced by the fact that after the unabomber shouter was inside and she was given an opportunity to see her daughter the record is clear that she came to see her daughter and spoke with her brother for making the decision to go conduct to have an interview and i think you can look to her the way in which she conducted that interview and the opening statements which i would submit weren't all that valuable in the trial i was just but the government makes no claim that this was harmless error i mean even if it was here it was incident was a violation the constitution any evidence that was gotten from it was not it was not we did not affect the outcome of the trial and therefore was harmless error government to make that argument doesn't have i business and that information came from her well this might go counter to the non made argument that any error was harmless if she made these exculpatory statements that the agents then testified to i i you tell me that what happen is correct so maybe there's no claim for harmless or alternately your honor i don't think that this the questioning in this case rises to the level of discourse other i know that was said was all right i know that this was forty minutes i know this one was what i mean asking you is what your case from our court says something like forty minutes i am struggling say no further questions they have no real questions for the record your fifty five minutes over not six and almost seven minutes i just want your colleague on the other side understand gotten some additional time already but you have some are just very quickly on the nd issue she was called back to the home if i missed if i remember correctly from the record and then officers stood on both sides i understand i don't know who called her but i don't understand the officers called her you think that's in this record that i know i think so i may be wrong about but she she comes homes home yeah i'm saw in the driveway officers you know  home and you know her family is sitting clearly not you know in a position where they look like they can and that they're free to leave all these are you know there's no there's no evidence in this now we don't have that we don't we don't have that but you know i would say from the surrounding circumstances you know a reasonable person would not have felt free to leave it in just really quickly if i might on the st issue you know there is there the the the it would be different if the the government had some evidence more evidence surrounding this namely that this was an interest in through the name intent the criminal intent was here they didn't have that and they just took a real leap year and inferred that and made that argument with this statement of her business name and the additional supposed purpose of getting mine out whatever that means they made out with the government made  naming my business forty eight years in a mill because i intend to defraud the government i don't even think that that necessarily that get mine now and you know this shows you how naive i am but it seemed to me like even if you associate this with the civil war the people had gotten what the government had to provide and now with good tax returns they are going to get what the government should should not  light but the government is saying no the intent there making that leap and making that are totally ideally what you're saying but judge judge when has pointed out you know she has a lawyer there they can make arguments i mean right this was such a big deal it seems to be that was a perfectly good argument to make a perfectly good argument to get witnesses in short get it and that's all very well into the argument here is that the government's out to a higher standard for something