and remand this case for a new trial alternatively we requested that the court reverse and this conviction for lack of evidence regarding the intent of mr johnson to commit the crimes at issue here  relating to the batson issue which this court will review on the issue of clear of clear air i asked the court to st began and look at this from a micro level what are the particular issues that were raised during the jury  dire as we begin there's a spontaneous statement by governments counsel to the district court and when the court addressed the issue in the batson issue and st and foremost the government counsel sta quote unquote flagged her because i even knew before i even knew who she was begins to unfold the pretextual nature for dismissing the african american juror mr johnson as an african american seeking a jury of his peers to quote continued on there were two reasons there were eight total reasons given by the go by government counsel to excuse this juror two of the reasons were not based in fact the issue as well she only had a ged and it was clear that she had a a good finished her college education secondly she had not filled out a jury questionnaire yet that t wasn't based in fact and as a set forth by the united states supreme court in foster versus chapman reasons for race neutral decisions need to be grounded in fact those two reasons that were given by the government counsel clearly were not based in fact and further show the pretextual nature of the basis for excusing this juror did did either party ask this particular juror any questions neither party asked her any questions how much time do you get for jury selection in this district so how much time would each party have i believe if i'm not mistaken and this is off the top of my head i believe that each side had thirty minutes of wadi or questioning at least twenty and possibly thirty minutes and there was there was moving on to the rd reason which was that the government counsel indicated that listed in her jury questionnaire that her father had been killed government councils assumed that that meant that her father had been murdered there were no questions by government counsel as a follow of but there was a thorough role wadih are done by the district court as to the issue of family issues and financial burden three questions were posed to the panel the juror  w the juror issue in this case or the potential juror in this case never raised her hand government counsel given full opportunity to ask her any questions asked her none yet you will note in the record that there was one other african american juror who was asked for there were four pages of questioning during in the transcript by government counsel of that your government counsel had plenty of opportunity if there was an issue for cause is all about what is the obligation of a prosecutor to ask follow up questions because isn't that kind of what you're getting at that there were things that the the prosecutor was relying on in the questionnaire and that this particular potential juror didn't speak to do what's the law on that and what's the case what's the obligation the obligation in this particular cases when you're you're going to use this or their reason to to base the race neutral decision and you're based upon assumptions that were made they're not a part of the record then it's not factually based as is required under foster versus chatman for deterrent for for making the race neutral decisions of your race neutral decisions based upon i believe the father was murdered when there was no record of that the father was murdered killed could meet accidentally killed could have been a car accident could have been hit by a car fell we don't know what that was and if that was a concern for government counsel when they raise it in their race neutral decision or basis for their decision it's it is their obligation at that it's special one again when we look further into the record because a there were five other race neutral decisions that were that were given she was young she was a run turn she was a single mom she had a child who was eighteen months old and that she didn't provide any answers yet the majority overwhelmingly nine of the jurors all caucasian gave the sim same or similar answers and they were not excused and yet were allowed to remain on the jury and sit and decide this case so so as a factual matter this particular potential juror didn't it didn't answer any questions didn't offer up any answers that cracked didn't offer up any questions to the that were posed by the district court to the jury panel or the voir dire panel at and there were but there were white exact same profile esther you see are you saying collectively they had those characteristics and i could break i could break it down for the court but when it came to nine jurors that sat and made a decision in this now i'm a little more curious to follow up on what judge kelly was talking about because the prosecutor here says that the father was killed was very disconcerting or very concerning i think those were the exact words that the  used and yet never bothered to ask any specific particular lies question of this particular juror and is that alone enough to to say that they violated some obligation that once you once it's triggered in your brain that it's of great concern to you have some obligation follow through is that your argument that's part of my argument certainly i mean you have to look at it in terms of why why weren't questions asked if that was a concern especially the whole purpose of one dear is to determine whether there is cause or not for a particular jury juror to sit in this case or whether they can be biased so if that was a big concern in light of the ambiguity kill does not mean murder but that was the assumption that government counsel made in this case in order to get to their their decision to make the race neutral i would point out in the miller l case by the united states supreme court now quoting not quoting the paraphrasing race neutral reasons become race specific when when the government did not excuse white yours who had the same issues and they remained on the jury now i also want i asked this court to step back not only to do the micro analysis but to do the macro analysis because i think this is essential all minorities were excused from this jury pool by the government half of their peremptory challenges were used to excuse minorities on this on this jury and there were no reasons given by the juror that was excused that was unique to her it point during the course of the trial by defense or by trial counsel i would like to just met on that and also submit on the search yes but it could i just before you get into the sufficiency what exactly what statements  saying were improperly admitted as a result of the miranda violation i believe that when the traffic stop initially occurred my client mr lavaca most the driver of the vehicle i have reviewed  the common case from the circuit which the government argues is on point and in some respects it is judge and in that common issue i believe in the common case i believe the situation where miranda was mandated what i would very briefly on that point like to draw the court's attention to is that there were some distinctions between coleman and mr bach and i don't want to take up testified that he in fact felt he was not free to leave and that he had to answer those questions so my argument briefly would have been that and in fact had been more custodial since it's really a subjective test as to what's in the defendant mind as to whether he's free to leave or not at least from my defense perspective adds to the sufficiency argument my client was convicted of both possession with distribution and appears judge that there is a judge of justices excuse me that there is a complete lack of evidence as to knowledge on the part of my client both halves to whether the drugs were in the vehicle he was of illinois the drugs found in the vehicle were found in a attachment to the vail call in a spare tire i believe there is no evidence showing my client at any time and agreement entered into between my client and the codefendant that there was any knowledge whether actual construct of of the drugs in the vehicle and lastly that there was any criminal intent to distribute those drugs if there's any questions from the court i would be happy to entertain them at this time other than that i would submit it well hearing  court because the issue was was submitted as to the the traffic stop in the miranda that happened on the side road i'm not going to address it that much i think this court is well aware that a traffic stop is not equivalent to an arrest questions that were posed by deputy olson this matter were run of the mill typical questions purpose of the traffic stop where are you going to be going to visit how long you going to travel things of that nature there's no indication in the record fact it contradicts that there was an arrest mr locky and was told that he was just getting a warning  the purpose of the traffic stop was never prolonged the deputy was doing the roadside questioning while completing the function of the traffic stop so there's nothing in the record that shows that this was a custodial interrogation and as such i would ask the court to find that the miranda issue where the court did not air by denied the motion to suppress that relates to the miranda issue issue that was raised by mr johnson as it relates to the baths and challenge there were three minorities on the juror excuse me  of jurors the st one was an address wasn't brought up here it was a young a young male we knew that his st name record this before he was ricardo but other than out there was no other indication that he was actually a minority the district court assume for the sake of argument heard the argument itself is why he the batson challenge related to him but the court also agree and said i don't really think that he in a protected class regardless that pretty particular prospective juror was not contested further once a race neutral reason was given to same with juror number seven she was the other african american female that was stricken as well and that was spread pretty clear as well this was a lady who indicated that her brother was in federal court multiple times most recent and  currently in federal court for drug charges while it's been implied there were four pages of questions it was more four pages her talking through general questions volunteering information did not create the drug laws and again her being excused from the jury or being struck that was not contested i think it was a given and under the circumstances especially as much young african american female she did fill out the questionnaire that's not disputed i don't i don't know what reference it as that as the government argued that she didn't fill out a questionnaire because it was not contested fact  our argument she filled out the questionnaire and in that question here she did put down some reasons prior to the jury trial started prior to the jury walking in we were given the questionnaires and we can refer to them and the way i was trained when i started doing the stuff was you know we get the red pen in the blue and as you go through it you see ok this is a this is good you know blue pen blue pen on the other hand if you start a part of that initial red pen blue pen with not an accurate memory of the questionnaire memory yes accurate as to the questionnaire yes well as to your reasons as to your reasons you assumed  memory that she was a g d so let's talk about some of the the other the other factors let's start maybe where we left off with the with the appellants counsel what is your obligation to follow up if you have some questions about something that concerns you for example the issue of she identified that her father had been killed and that i understand one of the reasons that you gave was that you thought her father had been murdered certainly there is no obligation that i have to ask potential jurors specific questions and as a general practice i generally don't depending on what the topic is she was not the only one that put down that she was a victim of a crime there were other i understand the reasons why you would want to ask some very personal questions putting aside the issue of whether you could do a side bar i guess the question maybe more directly is if you're going to make an assumption about an answer it's not clear from the question from her answer in the questionnaire then do you have an obligation to follow up or else not rely on it st of all the question that we're referring to was in the jury questionnaire it says has you have you or any member of your family been a victim of a crime and she put down my father was killed so whether or not it was some type of negligent homicide or something along those lines i think it was pretty clear that it was he was a victim he was killed you know whether or not that's murder or it was obviously i don't think it was he fell as as as argue but again i could try flushing that out in even a sidebar i still think you run the risk of having people question you know why is she being brought over to the side you know i don't want to alienate the jury i don't want to put her on the spot and i also don't want to create the image that i'm trying to find reasons why to exclude a particular person and i don't i don't i just it's a what was your what was your reason for exclude what was the reason for excluding her based on that an aggregate yes it was it took all of the other jurors to have a number of the same factors but this one particular person i didn't argue that she was young but i did say that she was a single mother she did just move into a house that she  rented and just just like that it's hard for me to remember so i had to refer to my sheet so i don't get it wrong but she only lived there for a month and to be clear about one issue as you noted before we didn't have a questionnaire we st went up there we had a number of documents we're talking about it the issue was brought up for the batson and i think the records pretty clear where i say i think  court reporter was even type of down the dot dot dot as we're pausing as we're filing through the notes going you know judge i think it was like i think it was it was judy that we said we said let's just grab the the questionnaire and we came back up and then we addressed the batson challenge and then we went through it and then we're very specific as to the reasons or make it very clear this wasn't something that somebody said you messed up or somebody said you were in correct this was just once we got back up there then we started to address it again then we got the facts right never brought up the education again or anything of that matter but after the pause after the break after return to our tables to judge myself opposing counsel i went back out our paperwork came back up there and we started again then we went through it there we started citing the specific reasons so when we talk about the fact that she was a single mother with a young eighteen month old child there were other jurors that did have young children there were other jurors that had that were single there were other jurors that rented places or had just moved in none of the other jurors had all of these factors in fact it was hard to say that any of those jurors had two of the multiple factors but what about i think one of the concerns you had was that it was going to be a burden on her to serve that wasn't one of the main arguments effect it was the district court that brought it up st and said you know i think also in the aggregate you know cuba to believe this is going to be a burden so what that that the but then i guess what i want to follow up on and we can sort of look at the record to see how much of a factor that was in the decision but when you asked is if i understand correctly this district court asks the question will that will serving on a jury of this number of days be a particular burden for anyone and at she'd she said didn't say yes and i don't know that if anybody did it is that then proper to to assume that she was wrong that she wasn't telling the truth in in saying it wouldn't or silence being that it would be a burden for well that's a particular problem with this particular juror but she didn't answer any questions even questions that we knew were relevant to her so it's kind of hard to say whether or not she by silence was acknowledging or admitting or what questions were asked her that were not answered that were specifically relevant to her certainly as almost the exact same question that was on the jury questionnaire the court did ask her in criminal matters have you a family member or even a close friend that a witness a victim or a witness a defendant a victim or a witness in a criminal matter and she didn't raise her hand even though as we're aware she did put down that her  father was killed so we would assume something at that point if there was you know her father was a victim and she had answered that question on paper earlier but now in the courtroom was not providing information do we know how our father was killed no we do  have any idea at all whether he was killed in an automobile accident killed in a criminal incident killed by flippen fall do we have any idea at all what the what what the cause of death was no we do know how how can you infer that her failure to answer that is a statement that she didn't recognize that her for her father had been a victim of a crime when you may never have been a victim of any criminal act i think just because the way the questionnaire is written and the way the question was asked in court implies that it's a criminal act and keep in mind this isn't just a risk to the prosecution i'm not just so much worried that she's going to get up and say somebody by killed my father got away with something or i don't agree at the criminal justice system she could very well have been pro government and been very felt like the if a defendant or somebody that had killed her father got away with the crime it's the inher risk itself that we don't know you're right it is an assumption well isn't the inherent risk if you don't ask the questions that you're stuck with the non answers and then you're left with just this complete speculation and if you look at the was of flowers versus mississippi and where cavanagh was in just last term i mean you're looking at somebody who really is not very much different than all the white people that you left on this jury right well you know because we also had the other reasons as well that we talked about the other as the district court said they're both persuasive and reasonable but the ports that referred to them were back to the beginning of the argument to i try fleshing out this information jass the judge to post the questions i mean i sat as a judge for twenty four years and trial cases and i routinely asked these sorts of questions and if anybody had any suspicions that there might be a problem rather than doing sidebars i was said to ask me to ask them i'll ask them that might have been an option that was what up not an option that we discussed at the time you know considering a sidebar that was one thing whether or not we would have asked the judge to take our time and to question it or just something that really i would have done or have seen  done again there's another multiple reasons why she was stricken and it's not just that one particular reason can i ask a question to sort of follow up on this conversation i understand there was someone on the jury  a victim of a sexual assault but he actually ok did that person answer the question one posed by the district where they are and i struck that person as well so there was no one on i thought there was someone on the johnson did not testify the jury did get to hear mr johnson's interactions with the law enforcement officers both at the traffic stop and in a post arrest interview he gave the jury is in the best position to judge the credibility of these witnesses mr johnston also called a bunch of other witnesses to come to cloud the issues and the jury heard these and they could reject it and say these this testimony is pretty incredible i am out of time the legal obligation that the government had to ask and there is no general legal obligation to ask any questions of anyone on the panel on you know prospective jurors but when there are questions in their mind and as foster versus chapman states that race neutral reasons must be based in fact that are in the record in order to be legit to mr evans isn't it pretty clear when the answer when the question is do you have a family member who's a victim of crime and the response is my father was killed isn't it pretty obvious that it wasn't a traffic accident it could have been a dui it could have been somebody who was driving their car negligently it could be a vehicle or manslaughter we don't i don't know the answer to that question and if it's the government's reason for the race neutral decision then they then are obligated to ask what it pretty clearly implies some involvement with the criminal justice system doesn't it could how could it not and still be a victim of a crime but i guess that what the government assumed was that the killed met murder and that's not necessarily true and there's a big difference between an accidental death i think the underlying concern is interaction with the criminal justice system and right and if i may just to add this i know i'm over my time i believe government counsels in correct there were two jurors rhonda l annalisa off both of them indicated they had been victims of a crime both of them remained on the jury both of them were caucasian white did they answer the question from the court i don't believe so well take a look at the record thank you mr evans we appreciate your acceptance of the appointment under the criminal justice act was an author and i thank you very much and it's great to be here and thank you thank you all and grieve you had a short amount of time if you'd like a little rebuttal but if not that's fine too thank you once again counsel of court appreciate your appearance in arguments today i think they were helpful case will be submitted and decided in due course