that facilitated the subtle introduction of hearsay testimony what little rose knew testified concerning china watching his bank account was necessarily derived from her out of court witness he did to some extent testify i mean that testify about witnesses who had already testified but he also was an overview witness and they testified for trying to walk ins invented short even though they had not testif my recollection is though he had already given the problematic testimony before that before that particular admissions get in so he already testified about china watkins for example that brian reich controlled her bank account and then the on a mission and so the problematic aspects of aspect of history but to your honor's point is that he was both an overview witnessing a summary witness and i don't think that the nature of his testimony or his role in the trial really became clear until again he went through each count of the indictment and shared his opinion essentially the brian bryant was guilty to the charge counts in other words as this as this court has said before in other cases an experienced law enforcement agent has looked at the case in made a decision that was in this particular case i live near what agent law rose did was go through each count in the indictment at the very end before the close of the case and explain in basically say that the wind brian brian was guilty and we're miten my recollection is the trial court decided that his testimony that it was i r s agents or the agents who was actually testifying as to how cash flows went through certain offshore accounts was merely consistent with the underlying evidence and so there was no harm i think was the analysis and analysis and let me hear so i think that the particular point rose was making a closing argument for the government and that particular that particular aspect of the limb here expert was not really addressed in a very narrow fashion because the courts of there was no harm because the underlying evidence was consistent with the experts test and the dish recording analyzing whether or not the rose had made an additional closing argument said that well no one would make a closing argument out of this but that's not really the point the point is whether or not the rose added to the government's closing argument whether or not law rosen self was making the argument that should be made by counsel that this court in moore said is the problematic aspect of the ex begin with the proposition that a statement given by a defendant in order to be admissible must be the product of a free and unconstrained choice of its maker that cannot be of mr karr as cooper's statements introduced in her trial yes we agree there were no he had cuffs yes we agree there is no bright shiny lights in our face yes we agreed the guns were not drawn but that simplistic view i think must be must be rejected for more detailed analysis of what went on i think is december st rate of this is because this cooper's house it was a police dominated atmosphere in her house that morning that early morning i tried to count the officers involved one time i think we said their brief there were twelve but i think there were more than that perhaps those outside there were n p t officers present also so there are least twelve officers in her her apartment i think it's critical to understand that the agents in this case did not allow her to leave her house and while it may have been done in her home well maybe and under under circumstances that agent i received and shipped but we're comfortable that cannot be said of ms cooper's state of mind at that time when you said it did not allow her to not custody necessarily because if it were then every statement given by the occupant of the home during the execution the search warrant would be excluded because it's not given with miranda warnings but how do you distinguish this particular situation from the run of the mill execution of a search of the school the school is your and the government's response to to come back she didn't have to come as hooper did not have to return to the homes that she asked of leave to not go back to the home because she wasn't given an alternative she was told that if she wanted to take her daughter to school that morning the agents had to take her and her daughter in the police car or else she couldn't go back into the you know that that option was not given to her she was told if she wanted to take her daughter to school every morning she had to be in the custody of the well yes it is not entirely clear but my concrete impression is that she could only go with the i r s in search of your country and question but it doesn't the defendant here bear the burden of proof to show that she was in custody starts out and there she's told is voluntary and then she says at some point i need to get my daughter to school and if the officer said oh sure that's fine would it be ok if we want to long with you and she says i just i know that you don't believe that that's what happened but we don't have the facts to know what in fact dead and if that were the dialogue and she just said sure well i don't think from those facts we necessarily would you be making the argument that she was in custody by  the police were they didn't take her in the morning yours may please the court katherine kelly on behalf of the united states if i may i'll just start with the suppression motion st your honor in this case it's not the evidence it is in the record that mr cooper was told that if she wanted to take her daughter to school that she must go in the agent's car and be driven and then be taken back to her home that's simply not in the record at most all egypt and she was not able to recall a number of the specifics about what was said during that there is no evidence that she could only take the child to school that she was driven by the agents there's no evidence that she was forced into the car for interview purposes either and there's no evidence that indicates that the trip to school was done in any weight to coerced statements from the scooper testified that the reason for accompanying the scooper to school was due to agent safety along the lines of the fact that if you allow somebody to leave the premise for a search warrant is being executed then if they leave on their own they cannot come back to the premises until the search is finished for agency fees simply because you just don't want one person goes after that or what they might be doing if they've spoken to other obtained a weapon and so forth so ultimately here the drive to school does not change the fact that there was no custody going on during the search warrant in the st place what why does it even matter what the purpose of the  evidence that she was told if you don't get in the car with us then you're you're stuck you can't come back to your house or that there's no evidence that driving the daughter to school was in some manner coercive of her earlier statements or even you know  anything in addition to that there is an indication particularly in the trial record that ms cooper had stated that she wanted to stop the interview went to break was necessary to take her daughter to school that in the government's mind indicates that cooper has exerted some control over the interview she's saying in some respects that she wants to stop the interview because your daughter's going to be late for school it indicates that she wasn't being though they were in her home and your honor is correct in saying the search warrant executions even though they are inherently police dominated that does not mean that they are coercive or creek social situations for mirand purposes and we cited the parent decision from the eight circuit for that point and for those reasons and even though the other factors that are not here as defense counsel has stated there was no  in her face no one yelled at her and there were no guns drawn and so force of the in the overall interview situation was not coercive either and notably it was it was done in her home as well interning to excuse me brime brains claims that the summary witness agent rose here did exactly as a non expert summary witness is supposed to do he helped the jury analyze and evaluate and organize a variety of factually complex evidence that came in fragments only through a number of witnesses throughout trial and the court although they have noticed obvious dangers in regard to summary witness testimony those dangers were simply not present here he was not an overview witness your honor in this case he was presented before trial and during trial as a summary witness the court gave the we're not going to be that it will push the decision between an overview and a summary of your honor's in the more case you were you were distinguishing the overview witness as somebody usually a government agent who testifies at the beginning of trial about what you were going to hear during the trial about the best tory techniques that  used often on this court and found that sort of overview testimony problematic because they were the overview witnesses ended up talking about testimony that never came in later in trial and so forth  admonition the court gave page one hundred and forty nine of the transcript of that day saying it would be preferable if you could limit your testimony to what you learned in your investigation and if i'm recalling that correctly your honor at that point agent rose had almost testified in regard to karr cooper not brian bryant that yes that's that's correct that he was about to testify something along the lines that she had an agreement with antonio cooper regarding receiving a tax refund checks at her home and at that point be the court st essentially telling him to stick to what he's learned from his review of the documents not testimony that he's heard in trial and again it was a situation or look where he was a summary witness only with respect to the charts forth my understanding of what the court was really saying is that stick for this part don't be making conclusions like there was an agreement between the car cooper and antonio cooper about receiving the checks that's not what he's supposed to  documents are understand with saying what the government witnesses said and i would agree that with the way the court made that statement in the record on the th of february was unusual but that he was mainly in this case reviewing documents and  degree and imagine not parrot everything that has been said in trial but remind the jury of what has been said and draw conclusions that are appropriate for a witness rather than the government to to make from the evidence  appointed counsel i'm not sure it was mr seligmann who was his attorney and i don't recall whether he was pointed or whether or not he was your team your honor you see that the government has a tremendous advantage because the special edition of the r not paid by the hour and it's not paid by everybody except the federal government will be over here for a defense attorney to get somebody to sit as a summary witness and in the court for two weeks or three weeks or a but the defense had all the documentation and all the summary charts and so forth well in advance of trial which was something that was pointed out separately in trial and the case law is that you it's not problematic to use a summary witness and  arson yes because it as a summary witness you're summarizing evidence is already coming in here particularly the documentary evidence leaving the jury to be able to understand them the mountain of bank records tax returns checks and so forth that came in through a variety of witnesses during trial but i guess i don't see i don't see the fundamental distinction as long as even if you do it as anti you testify about things that are in fact introduced i get to that if you're a danger that if you testify about things that are never introduced then that's a problem right in this court and in and i believe in working and i'm not sure if there are others as well or has noted that even if you had an overview witness the ultimately end up being harmless because the evidence that they talked about that was in india did ultimately  of time and the only reason that happened really was because ms watkins son had gotten ill and they had called her out of turn in addition the statements that were made about purported signatures were his brian brian signature and so forth as we've said in our brief that was all supported by other evidence in trial by the time those statements were made and none of the conclusions that he made in his testimony were really very controversial really wasn't a major question by the time he got on the stand that we're talking about false and fraudulent tax returns refund checks and so forth so brian france testimony or gross's testimony was legally fine in this case and  that i am most out of time so i'll just quickly go to the last calculation for owners would allow me in that situation your honor the last amount is definitely not the amount of the gain as mr bryant attorney conce sentencing he was seeking a loss none of one hundred and twenty four thousand which was the amount of checks that were negotiated through bank accounts that mr bryant bryant had used during the scheme  calculations through the text of its sentencing memorandum during its statements at the sentencing itself and through exhibits that were attached to the government's sentencing memorandum the only thing that really is perhaps not directly in front of the sensing court at that time is like another spreadsheet that lays out the exact mathematical calculations for instance like the double counting was removed the government said they had not double counted amounts and so forth and so there isn't a spreadsheet that shows we took out this check and so forth but beyond that everything that was necessary was in front of the district court and the district court accurately and correctly found a six hundred and fifty thousand dollars loss both the checks that were sent to her house represented the checks that were sent to the five addresses that were used to receive tax checks during the scheme plus the checks that were deposited into s accounts during her period of participation in the scheme and the government  that's correct it's not just those checks are you know it was that it was reasonably forseeable for her to know based on her particular actions in the conspiracy that other bank accounts were being in the bank accounts were being used and that i just want to dress one brief point about this distinction between overview and summary witnesses and i don't think it's necessarily a matter of whether or not the witness testifies it beginning of case one gay one whether or not the is about whether or not the witness is testifying about evidence that has not yet been introduced and your hours when about whether or not it matters if the evidence later comes in for example in the instance of ms watkins matters as well because we're not talking about two was different when she said that brian brian had access to her account she didn't testify brian right control my account from right open my town she testified as to discrete matters about her account he had access he had starter checks but asia will rosen already are not necessarily in the record but a very simple argument to the government supported your math support the amount that you picked and their answer is well we have a spreadsheet isn't in the record that we didn't present to the district court and we didn't present the bribe right but trust us that we removed double counting claims and trust us that we're relying on accounts of coconspirators to come up with our loss now even those of those accounts were open outside of the period that brian brian was alleged to participate in the conspiracy so it's just it's a trust us it's a trust us argument that when we're talking about mears on a sense should matter that it the courts should be very last although we did not raises or initial argument the government did in response to questions i have read the last calculation by the government several times i do not understand it if the court rea america lost in the neighborhood of five hundred thousand dollars not the moment that the government now the government said well we we included all the addresses no evidence in this group or ever knew about all the addresses but we have