good morning your honors my name is emily rose now steve and i along with my colleague and hudson represent the appellant rex hopper we are also practicing pursuant to illinois supreme court rule seven eleven under the supervision of sarah shot with the plum clinic at northwestern mr harper's conviction was flawed at nearly every stage of the proceedings against him he was denied access to the cooperating witnesses proffer letters the government failed to prove the conspiracy that it alleged that he received an excessively high sentence due to an  improper enhancement and clear double counting and i'd like to start there and a minimum this court should remain free sentencing because of the double counting in this case when you look at the evidence presented at trial and at sentencing it's clear that the drugs that have been assigned to mr harmer via lucas holland and randall riley are the same drugs this is a plain error affecting mr hopper substantial rights for which he's serving an extra forty seven months and you agree you didn't raise this below it was not raised below but that does not mean that it was wa agree that it was not objected to below specifically when the pre sentence investigation report was provided which detailed the drug quantity from the probation officers perspective and there was no objection when the court asked there was no objection from either party and this is simply an error that everyone missed it's quite similar to the case of the first circuit remeron which we cite in our brief in which the probation officer missed it the district court missed it both parties missed it here it's a government must permit the defendants to inspect documents within the government's control that are material to preparing the defense after letters are always material to preparing for the facts this court said in united states versus baker but something is material if it is  or helpful for impeachment would you also agree that this was the rule sixteen argument was not raised below i know the equally you know it was but not rule sixteen so your honor we don't quite agree with that i haven't seen the transcript page for that trial counsel noted that he had requested the proffer letters at page fourteen he noted that he gets them in discovery on a routine basis as he did reference discovery and then on page five he clearly preserves this issue for appeal saying i would like the record to be clear that i think i ought to be provided with a copy of these documents and from those statements the district court should've guessed that you were for lying or he was relying on rule sixteen the district court to fail to recognize rule sixteen as another opportunity for disclosure of these documents who is out location was that to raise that in the first instance what i got as i said this this was raised although the words rule sixteen were not explicitly stated by the trial counsel based on the references to that's not correct defense counsel said that typically understands that there are a form letter but we haven't seen them in this case so did they have other proffer letters from this case correct you on mr hopper's proper letter which was not signed and absolutely gordon's proper letter was disclosed to him as well but that's not part of the record on appeal and didn't the government represent below that their preference letters are always the same they did not your honor that it's a form proffer letter that is not what the government represented your honor trial counsel stated in my experience these letters do not change only the names of the defendants troop of the government made no representation of that fact and that's an important distinguishing factor from writing burner in which a witness confirms that his missing probably letter was identical to a proper letter that was produced now even if we don't get into hypotheticals about what kind of nefarious terms could be in the proffer letters that we haven't seen there are still some differences all of the proper letters are dated and they're all signed this helps the trial counsel explore other other avenues for discovery and explore other avenues for discovery because they're dated helps until the timeline if you can call the a u s a and determine what might have been discussed in that proper discussion so it opens up other avenues that way and they activities that certainly would have been a teaching material but again even without these hypotheticals if we look at merely the dates those could have been used to impeach for now can do this and billy crash will post a proffer letter might indicate a little  can absolutely are that's correct not turning to conspiracy at the critical issue here is whether we had a conspiracy or a buyer seller relationship we know that the jury was confused about this because of the note that they sent explicitly stating we are confused as to the definition of conspiracy referencing at the buyer seller instruction and referencing the conspiracy instruction there are some clear figures in this alleg conspiracy who can be knocked out as buyer sellers such as lucas holland and randall reilly the record is clear that mr hopper and robert we are merely bought drugs for madmen for a period of about a month they would give the money to holland and riley holland and riley would go get the drug t moment perhaps if you had a poll based on damien williams there is if you look in the p s r he's only responsible for two hundred eighty three point five grams of drugs which is well below the one point nine six kilograms of drug amount attribute past in the past yes you have there there's a case concannon in which this court found they affirmed the conspiracy adam and they found that he should have been recent tense because of where they found he didn't conspire with the person named in the indictment but they upheld it based on a conspiracy with someone else they didn't mean for the sentence or they said it was harmless error and the sentence because the sentence would have been the same but clearly in this case the drug amount is substantially less than it was in can conduct if it was just a conspiracy between mr hopper and damien williams then there's would be no evidence to tie the rest of the drugs the rest of the one point nine six kilograms to that smaller subset and briefly i'd just like to touch on the enhancement why wouldn't that be relevant context as to what happened whether it's part of the conspiracy or not well your honor in terms of relevant contacts it had what has to be proven is that in the case of this jointly undertaking criminal activity this is in the guidelines that one b one point three you have to show that it was within the scope of the jointly undertaken activity in furtherance of the criminal activity and reasonably foreseeable in connection with the video that's a fact based inquiry but there haven't been any findings about in the lower court at this point and so it wouldn't be appropriate to cite that as relevant context here and very briefly enhancement as we describe in our brief the laws really just gotten beyond what congress intended here but if this court does not take th yes and she was very unclear about the timeline there she said and this is in the sentencing hearing at thirty three air wright says the last six eight months a year he would do things away from the house so that most or at least were taking up six months at the back and we can also take off nine months at the front end of the allege a conspiracy because aaron wright did not meet mr hopper until september thirtieth two thousand and fifteen but she also had testified that she stored the meth there almost every day that they lived there to she said that there was some sort of activity going on there every day which again is not quite clear in terms of what she's meaning based on that so there's not quite enough evidence for this and handsome and i'd like to reserve the rest of my time  well good morning your honors in may please the court i will go in the same order as my opponent did starting with relevant conduct the government split position is that the relevant kind of argument is waived and it is not simply that the defense counsel does not object to the relevant conduct the government's position is that defense counsel affirmatively stated that the role of kind of what's correct on three separate occasions well three times in two separate documents in his first initial objection to the relevant was in the record it's document eighty two in his initial objection to the precint report and that occasioned probation erroneous lesion gave the defendant a two level reduction for example is responsibility and the defense counsel object to say no my client is not admitted his responsibility and says the correct base the correct offense level is thirty six which is the relevant conduct of between one point five and four point five kilograms methamphetamine later ran on the right in the record indictment ninety six and he said in two different times in that document so and the only thing that made up that base his level thirty six was the relevant conduct so the findus is telling the judge the relevant conduct is correct that we had this we disagree with the  cordons was turned over it's just been my practice i don't maybe other u s a s do it differently it's been my practice that if you have a plea agreement which supersedes the proffer you provide those two defense counsel the proffer and we're talking about a says once the plea agreement is the plea agreement is executed and that supersedes it and i don't and i just normally don't think that's the defense of counsel and just there are other cases though where the government uses proffer letters to try to help bolster credibility of cooperating with ice and it's understandable why defense counsel might be curious to see those i can i understand and this is this this defense counsel is not a new the mr keene mr keene knew what the proper letters were even said they were all the same he had played cor proper letter he had his client's proffer letter the proper letters don't change and i think what is important is that defense counsel want the jury to understand not what was in the proper letters but the process by which the proper statement is given by the witness to the law enforcement agencies and he says it directly to the court i want to go into the process to show that the witness in the defense's view is susceptible to maybe embellishing or exaggerating or changing your story the defense counsel wanted to show that these shoppers are done in the defense counsel's word i believe behind closed doors without cameras rolling it's just law enforcement and the witness and their attorney and the witness then gives a statement trying to appease the government in order to get a plea agreement that entire line of questioning was brought out through the very first witness who had it clear three men and went through the proper process that was lucas holland defense counsel could have gone through that with all the other witnesses but the defense counsel that made this point this is the process in addition i would point out that blake gorton who did not have a cooperating plea agreement because he pled open the government acknowledge defense counsel can use this proffer letter to cross examine mr wharton in defense counsel did not do that defense counsel the night show mr gordon the proper letter defense counsel the night introduce the letter and evidence the natural the jury the proper letter and i think that's important because it goes to what the defense counsel strategy was with the proper letter and that was to explain the process by which the witness gives the statement and not necessarily the contents of the letter selves  and sees only went to the conspiracy i think the government leaders ample evidence of a conspiracy in this case and i would suggest the court when you look at it especially the defendant robert we're going to take those two it's not a traditional hub and spoke up one person in the middle and a lot of the ideas we have to defend in iraq we are acting in concert for a long period of time and other individuals joining this this conspiracy atlanta and by i say that is because i did i did not present the chronologically the trial but i know what the evidence is in all the evidence is in the record but we're in the defendant and we're are working together in it first there's blake gordon involved and there's evidence in the trial where sharing pooling their money together going to missouri to get methamphetamine to bring back i think what was important about that instance was we're was the one the first instance where we're drove the defendant the defendant the source of supply and the second paid it was weird source of supply that provided methamphetamine but they were short and now so you have four people purportedly buying four ounces of methamphetamine and they only get three we are says i will take the loss that shows more than just a buyer seller agreement it shows people working together in concert and what happens is hopper says no you take half of mine to sell so hopper is absorbing half sometimes we're will give hopper weir's money to go buy these drugs sometimes operative where the money sometimes they go together it's clear this is combination of individuals who are doing things to further the distribution of methamphetamine in southern illinois i'm not going to go through all the examples but there are in my brief i slide out once with examples where you see we're in hopper working together in concert and people coming to go after for example after riley in holland we're and however are going to go get drugs from kansas city missouri together while we're gets arrested at harper still goes to the source in kansas city and it starts getting drugs from there so even though we are is gone after still continuing the activity is forward is the government trying to prove any kind of structure or a leadership role for mister hopper no your honor he's a come i correct in thinking that the theory here in essence is you've got a kind of loose buyer's cooperative mean i think i think willing money is essential to show that there's more than just a buyer or seller alicia but in agreement because i'm trusting you with money you're trusting me with money you're trusting that i will be your drugs back but there's also for example they're driving hopper around to sell those drugs that has nothing to do with the wholesale discount you have hopper asking damian williams to go get customers who are not paying me and bring them to me so i think like payment that goes beyond the wholesale wholesaler example added this enhanced meant when they were lowing lowering the penalties for the drug quantities and one of the recent amendments within the last ten years for the lower the drug quantities but they made certain enhanced mints based on activities and that is danger violence and i believe this has to do with danger and violence if you're storing methamphetamine in your home there are a lot of in your residence over here right now so it would be true now there's a lot of really for other things right it depends on what the drug is and if and i just i don't know what was in the commission's mind but if you have heroin in your house and a kid gets it the kid could overdose and die but you know if you manufacture methamphetamine even if you're buying it if you're selling it from your house there's an additional danger as we know people robbed drug dealers so it's just an additional danger if you are having and distributing all these activities from your primary residence and ice and there were no kids in this case but if there are kids at the residence and then obviously heightens any danger that may occur i hope i have answered all the court please the court and hudson continuing for mr hopper and like to begin by addressing the government's argument that trial counsel below achieved all he wanted to achieve with that with the with respect to the proper letters trap counsel requested the proper letters during discovery and he felt entitled to have the letters and to be able to introduce them as evidence once he was once it was made clear by the court that he was unable to do that only then did he fall back to a secondary objective of making clear the proper process to the jury clear that he wouldn't be able to receive them then he wanted to explain the proper process which he was able to do one time only and he was only i think it's notable able to address proper letters on recrossed of lucas holland because the government brought up the proffer letters on redirect and so that excuse might go to explain why he he didn't bring them up with respect to the other witnesses was there something that precluded him from raising it on cross examination in the first instance i think the government made clear that they would continue to that they would object if and so he felt only come it seems like he only felt comfortable doing so after it was already grades fun recross turning now to the issue of double counting in sentencing now while it's true the government the trial counsel argued for the base offense level that was he never discussed the drug quantity amount and furthermore he was when he was arguing for that in this offense level what he was doing is arguing against a higher offense lol he was arguing against the enhancement so he really wasn't affirmatively arguing for drug quantity at all and given this court's precedent of applying labor waiver liberally in favor of the defendant that is not knowing knowing and intentional relinquishment of a known right that's clear because there's simply no strategic reason to not object so that's double counting the cases cited by the government are of of issues  as we have here is a plain error that affects mr hopper substantial rights now just briefly touch on conspiracy the government the government said today that will certainly just before we move on from this is so clear and the and it is plainly visible and i believe in miller but only when we can feel confident that an error was made here in this court address and i think that's exactly what we have here this is similar to the double counting in that that everyone missed it it's not it was the defendant's burden to raise as well but the fact of the matter is that mr hopper should not be punished for what everyone missed and the fact of the matter is that with without the amounts of drugs that are double counted here mr harper's base offense level would have been two points lower which would have brought his sentence the sentence at the low end of one range would have brought it down forty seven months if he was  that's simply not true that's not on the record and that is evidence of what the exact evidence is missing here which is an agreement to further distribution there's may be agreements to buy but there is clearly no egremont to further distribution here which is what our thanks to all counsel and done in particular to students from the bloom clinic for your services to your client in court