i'd like for the attorneys to step up to the podium i want you to tell me your needs who you represent in approximately how long your argument will take trial a bit young to have the people convicted and sentenced to twenty years in the illinois department of corrections this appeal follows from that conviction the first issue i would like to address today is actually the second issue we raise in our brief which is that the trial court committed reversible  instructing the jury that it could convict the defendant based on a theory of accountability specifically the court instructed the jury that to prove criminal drug conspiracy the state had to prove that the defendant or one for whose conduct he was legally responsible agreed with his co defendants to commit the offenses of possession of a controlled substance with intent to deliver and delivery of a controlled substance was that accountability language of the group read in the structure certainly your honor the accountability for that statute which said which sets forth the definition of accountability provides an exception that a person cannot be accountable for a crime which is so defined that his or her conduct evidently incident to its commission and what the supreme court put courts of the state of held is that this exception applies to offenses that by their definition require the action of two or more persons so to be guilty of for example criminal drug conspiracy the statute defining the offense requires conduct on the part of more than one party in other words any one defendant's agreement to the conspiracy group that's correct your honor the agreement is the essence of conspiracy and within the accountability statute this exception specifically provides that in situations such as this the legislature has specifically defined through the statute defining criminal drug conspiracy who can be held criminally liable and its any person who enters into the agreement in order to be guilty of conspiracy the defendant to have been principally involved in the agreement which is the subject or object of the conspiracy and as we point out in our brief the committee notes to the accountability pedantry instruction caution against using the instruction or the statute defining the offense requires that particular conduct be committed by the defendant personally and that's exactly what we have in this situation now pages eighteenth one thousand of their briefs the state argues that the state did not err in issuing this instruction because there was sufficient evidence introduced at trial to show that the defendant was accountable for his co defendants possession of a controlled substance with intent to deliver and i would submit that that argument misses the mark the defendant here was only charged with criminal drug conspiracy he was not charged with possession with intent to deliver he was charged with conspiracy the state had to prove that he entered into an agreement not somebody who for whose conduct he was legally responsible possess it's a controlled substance with intent to deliver and i believe that the state implicitly concedes error by spending most of its time in its brief arguing that this is not air that rises to plane air this was not an issue that was properly preserved by the defendant's trial attorney however dream structures rise to the level of plane or if the error creates a serious risk that jurors incorrectly convicted the defendant because they did not understand the a political law so as to severely threaten the fairness of the trial the spiegel's who takes the position that if we look at overlook the instruction that the defendant received a fair trial they do your honor and i would submit that really what we're talking about here is the risk of juror confusion and i don't think there's any question that the jury could have been confused by the instructions it was given in fact the prosecutor was confused by the instructions that were given because the prosecutor argued that the defendant could be convicted on a theory of accountability and again i'm quoting some from the prosecutor's club closing argument but he says now the defendant keeps  distance from the actual drugs in this case but the long illinois recognizes that what one drug dealer can do to can do better he goes on to say it's called accountability and you're going to get instruction on it he continues on just because he didn't touch the drugs doesn't mean that he's not responsible for them it's just like the getaway driver in a robbery he's just as accountable as the people inside the bank that is a clearly incorrect statement of law you cannot be accountable for criminal drug conspiracy i think that that's straightforward and i think it's a little bit disingenuous to exhort the jury at trial to invite them to convict based on a theory of accountability and then argue want to appeal that there's no risk that the jury did so furthermore under the other prong of the player doctoring the evidence here was closely balance and i think it's worth noting again that the lower court had granted a motion to quash and suppress based on exactly almost exactly the same evidence that was introduced at trial in the actual interaction with other co defendants a codefendant by the name of the frame alamo was actually acquitted at a bench trial based on the exact same evidence so again this is not a case where the state although i know will argue it's overwhelming the evidence is overwhelming because in the view of the state it's always overwhelming in this situation it simply wasn't there was no direct evidence of an agreement and certainly this was an error that could have tipped the scales unfavorably  in the direction of the state counsel yes he's me is it your position that it is just the facts in this case that urge a finding that accountability can never be part of a conspiracy to commit an offense instruction or is it a general proposition in other words here are you saying that because the defendant was one of the parties portion of that instruction with the conspiracy instruction your honor no i don't think that he could be accountable for his spouse's conduct you know i mean like let's say his spouse could she be accountable for his agreement and no spears i don't believe so your honor and again i don't want to speak to necessarily every statute that sets forth conspiracy because i don't know them all off hand but i would think that in any situation where you have a conspiracy alleged obviously the essence of conspiracy is an agreement and an agreement requires conduct for more than one person another way to conceptualize it is that where the legislature or excuse me where an offense is defined in such a way that more than one person's conduct is required the legislature has defined the scope or the class of people who can be held criminally liable for how the crime is defined in the statute the second issue i would like to address very briefly is the third issue we raised in our brief and that was the trial court's abuse of discretion in admitting evidence regarding the defendant's purchase of a heat seal or and a money counter and very briefly the testimony that was elicited from two chicago police officers was that were was that they observed the defendant purchased these items from a sam's club more than eleven months prior to the date of his  arrest we would submit that there was actually absolutely no program value to these items they were not seized in the defendant's hotel room where he was arrested they were not seize from any location where the defendant or any of his co defendants had access to the drugs in this case were not heat sealed they were wrapped in duct tape and cellophane there was absolutely no connection whatsoever between this alleged purchase of a heat sealer and money counter seal are in the money are completely irrelevant and the state had argued that it was relevant to show the defense plan but it can't be because they're not connected to the offense at all if there was some that's exactly right roger and what it did was it painted the brush the defense with the brush of criminality not only did you have the state introduce the fact that these items were purchased but it also allowed them to introduce evidence from multiple police officers who testified that they were agents and being our colleagues division of the chicago police department that they had the defendant under surveillance for at least eleven months prior to when the conspiracy took place the counsel he would not deny that he money counters were used by drug dealers would i would not deny that not only your honor and he the cases that the states like to make sense and that but they actually support our position because in each of those cases you have a situation where the drug paraphernalia where whether it be a scale whether he to you or something along those lines is seized at the time the drugs are seized you have a stack of contraband a stack of narcotics and you have a scale next to it or at least in the same apartment that's not the situation we have here we have these two items completely removed in time and space from the charge crime in this situation and it clearly was just straight for propensity evidence that's what it was used for because first off the i mean if it was the evidence was i'm sorry it wasn't because again we're looking at these instructions as a whole the jury did have the keep indicating that this is about agreement the clearly the instruction for conspiracy contemplates one action that he agrees and that then somebody you he or the other party he agreed with then u right so some of the key action is agree then when you go to the legal accountability you've got solicits aids a bat and greens to aid or attempts to aid right so you have  sort of population of actions that are greater than just agreement you have so many options it basically and largest the possibility of criminal conduct right because you now have now you've included a bunch of other here we have again the defendant we have a structure that i don't have to agree my question though is is my question is do you think that the instruction about the requirement that they find that he agreed i that the defendant had to do something less than agree all of the evidence the arguments were tailored towards the defendants conduct as a mastermind as a hobby as the important guy who was holding the money as was stated in closing i think that the trial lawyers say is sufficient evidence certainly to to prove beyond reasonable up the defendant entered into the agreement and so i don't think that they were attempting to show that the defendant was simply accountable for the possession or the both intent to deliver or the delivery i think that the conspiracy charge  heat sealer and the money counter to the facts in this case sure justice pierce pointed out you didn't find it in the hotel room it was not in that car correct that's correct he didn't find your money counter one thing that i think i should point out is that it is black letter law that accountability and conspiracy are two different distinct offenses they're not the same thing that people make what the mclachlan which we cite are brief from people w skiles among other cases and again i think in assessing prejudice it is crucial to look at the prosecutor's closing argument and i know i read some of it to you previously but again on page l l two thirty two of the record the prosecutor and i would submit that his honor judge joan is going to talk to you about responsibility and i believe that i would and i would submit that he's going to instruct you that a person is legally responsible for the conduct of another when either before or during the commission of the offense with the intent to promote or facilitate the commission of the offense he knowingly solicit aids abets agrees to aid or attempts to aid the other person in the planning or commission of the offense and that's just it's clearly wrong and it's reversible error the other thing  again be he to learn the money counter i would be more sympathetic to the state's position if this were a money counter that were bought that was bought perhaps on the same trip or within weeks of when this alleged conspiracy took place or even within a month or two but here we have and two items that were allegedly purchased some eleven months before his arrest and again that evidence of it also just consisted of one officer conducting surveillance at a sam's club who testified that he saw the defendant who was with another person and purchased these items it's not even clear that it was the defendant who purchased them we don't have any receipts we don't have any other proof that it was the defendant who purchased the items it's just too tenuous it's too remote just like correct only the defendant's testimony that he did not purchase those items as the officer had testified to so so we would be asking that this court reverse struggle of this conviction thank you very much thank you very i would like to compliment the attorneys for their briefs for their arguments that this matter will be taken and your advisement and this court