good morning please the court my name is heather quick and i represent the defendant paris hall into a jury convicted mr hollingshead of possession of a firearm an issue on appeal is testimony and evidence introduced through detective but that i'm named person who did not testify at trial identified mr halling said as an individual who possessed a firearm in the street this testimony and evidence was a violation of mr hollingshead right to confrontation and as an  not hearsay as it was not offered for its truth and also asserts waiver every argument put forward by the government has been rejected by this court under similar circumstances first the government asserts that th first brought out the issue of the eyewitness identification of mr halling said in as the person in the street with a firearm the government then opened the door to that testimony defense counsel did cross examined on that identification in the street then on a redirect the government introduced the evidence of the later lineup where the unnamed eye witness identified mr hollingshead as the individual with the firearm in the street counsel is it possible that the court committed  of illinois that's the plain air case cited in our brief as this is the play in their argument there and that case there was an out of court identification of the defendant as the robber but also there was another individual who identified the defendant as a robber who actually testified at trial and was subject to cross examination there the only supreme court still reversed on their plane air finding that this was such an important right that was violated that a new trial was required and in homes which is very similar set up and circumstances to the facts here the court didn't find a harmless error because the court noted there was contradictory evidence and were not of that there was  evidence to indicate there was whether the fighting issue in that trial was whether the government could connection to the house where farms were found in which were the basis for the conviction but still the court noted that there was contradictory evidence and in those much either yes here or there only there is not in other cases as there where there is not other identification as mr hollings that doesn't vigil who possessed a firearm and the firearm that was the kind of conviction itself was found in his home impact on the verdict and it is your honor and the fact that the evidence that the government for put forward was too weak a stylish is that there is plain air there was a witness a defense witness who came on and testified that the firearm was and holmes i think it was a closer question of opening the door because it did come out on cross examination of what the basis for your information which again was a close question to whether that opened the door for the law enforcement officer to get into the basis for that information which was the search warrant affidavit here it's not a question of defense counsel opening the door the government first brought out that evidence as to the  witness was in there and that doesn't come very clear didn't come very clear to me in the briefs and i guess i should have should have been and read it but but the the question was was  opening the door i mean to because i want this in there yes ok then it's an easy case yes and then holmes points out it's not if if you don't have that comically it's not an easy case at all and so i hear here that the trial court plainer because of the case law from the circuit and holmes was decided before this trial and any case that as other cases of this court has said before when we're talking about the right to confrontation a potential waiver that's an incredibly high bar i don't know that the government really needed the needed the the hearsay for its case i mean if the issue if the issue comes out then then it's probably going to go away or if it doesn't go away and then the son will be  and it's going to the harmless error argument and the concerns of whether this does require reversal on or plain error the acquittal supports that some of that confidential informant testimony could arguably be used to go to count to count that mr hong's had was eventually convicted under but that acquittal and the problems with that confidential informant testimony ended kater that it was not credible and could not be used should and should not be used by this court to find harmless  and for reasons he did not not simply because this lineup eventually came in through another eye witness and so defense counsel was operating under the assumption that this identification this eyewitness was going to testify and so of course the initial shruti to pursuit of advocacy was that this lineup or this identification should not come in at all and whether at the point it became clear with the pretrial motions in the motion to suppress that this identification would come in that then the next line of defense was trying to attack this eyewitness identification as much as we can that's when the discussion of the expert testimony potentially coming in came into play i don't understand the basis for the idea of defense counsel somebody just did not know at the time that that witness was not going to testify which is arguably why she didn't object not for tactical reasons but just mistaken belief at that time there are no further establish prejudice in this particular case the defendant cannot establish that the testimony affected the substantial rights of the defendant there is no prejudice because there is adequate independent evidence to support the conviction that the defendant knowingly has left the firearm which was ultimately the only issue and due to the stipulation as to the other two elements of the char the facts of this case are very specific the evidence showing overwhelming guilt as to the defendant's possession of the firearm on august twentieth we have a search warrant that was conducted but there were other people  bushes was in a vacuum sealed bag matching up the remnants from the vacuum sealer to the weapon show that they are they were cut from that same piece of plastic so that is very significant evidence but it's not overwhelming is it i mean he may have sealed up a piece of meat for the freezer the two days before and that doesn't necessarily mean he sealed up the done with the evidence would show that in fact there was no items in the refrigerator or freezer that had a nice feeling to it and they took pictures and looks throughout the cabin and moved it from one cabinet to another cabinet i understand additionally you know there was testimony regarding a nother firearm box that was found in the rafters of the basement there was also evidence of the that doesn't match the gun that was found right correct it was a different caliber gun in the rafters which goes so in direct examination the only thing that detective but testified to was the fact that two nine one one calls came into dispatch and that he received information regarding a description of an individual when he was wearing and that he had a fire in his waistband the detective then relied on that information and got a search warrant for the residence that was the only testimony on direct examination it was then in cross examination that the defense attorney it into the for the other nine one one call which was from the defendant's mother regarding a disturbance and there was a simultaneous call that came in from our concerned citizens mother regarding that the scription during the testimony regarding those phone calls the defense attorney got into more detail pointing out that the concerned citizen also suggested that it was a nine millimeter firearm the defense attorney then goes into more discussion regarding bringing back to the concerned citizen the following day to go over again his description of this individual the topic of the second interview with a concerned citizen was not put into evidence in draft examination that new topic only came up in the cross examination she went into detail again with the second interview getting to scriptures from the concerned citizen as to what that subject was wearing these details again as to the search warrant yes no no they didn't challenge me i mean when when but she was just explaining the basis for the war was his affidavit in the room no no he just simply said we presented that evidence to show what steps he took after getting that information from the and i want to call what was there and use directly van that would and to the search more it was the concerned citizens information as well as his surveillance of finding a like white vehicle in the area and following that vehicle to the defendant's residence he the detective then got a search warrant based on that information from a concerned citizen the surveillance he conducted as well as the information obtained from the proffer interview of the cooperate ng defendant  regarding the prior incident he then gets the search warrant for the residence and that's all that was brought up during director of the emanation it was a very brief description of the events and information provided by the concerned citizen very narrow specific questions and it wasn't until the defense attorney entered into the new subject regarding the second interview with a concerned citizen did the information come out regarding the additional details from that individual and so i'm looking at the sequence of the testimony we see that the defendant the defense attorney did open the door  that additional information bringing that second interview i would also point out that the again the facts of the case are overwhelming as to the possession of the weapon in the defendant's residence i would also state that the information from the concerned citizen those statements are not necessarily significant to the case we see them and opening arguments the government merely stated the information that was brought out on direct examination the information that the detective used in order to conduct surveillance and then get the search the defense did not bring any statements and opening statement think closing argument the government indicated that the concerned citizen did provide this information and the detective  not be called these records suggest that at the time that inspected but was called there had not made it we had not made a determination on whether that witness would be testifying it was only until after that there was any doubt that the that the witness would not would not be called the redirect you should have done the redirect i said you obviously i'm not that's not personal i'm just the and it's our opinion that the defense opened the door to allow that testimony to clear up on the information that was right out that he didn't say on cross that the son in the interview identified the defendant that he not in the lineup no that came out only on redirect it was the envelope so if you're not sure yet again you i don't know if the government's not sure that the the eye witness is going to be called then it shouldn't put this kind of hearsay and it's it's ok i'll d fence did not open the door i would say even even so even if you determine that the district court to did commit an error and it doesn't raise rise to the level of plain area there are significant facts in this case are significant facts in this case outside of that statement i would also say i don't understand the i don't understand why the why that the court shouldn't if we shouldn't say wait a minute are you going to call who are you going to call the witness that you're now putting in hearsay identification what i would just state that those statements become more insignificant when the defense attorney put testimony on from the defendant's mother regarding her nine one one call this is  know that's that's a harm that may be a harmless error argument but it doesn't doesn't get to the the plane air analysis at the contemporaneous evidence research situation and i don't understand why the government would would take a risk like this and it seems to me that would be proffered cases very efficiently clear that probably the district court you'd have thought caught it except the district doubtless expecting i don't know what the pretrial disclosure of likely witnesses was everybody's probably expecting the government to make the decision that then after it gets the incriminating evidence you know we don't need the witness list that seems search warrant is at that time and that we have to show that in fact this information was in some absurd information that it was reliable information that you relied on in order to get the search warrant for the residen information from the concerned citizen we're showing that he's relying on this information to progress his investigative techniques all right well homes homes destroys th and i i would say that holmes is distinguishable as you said in a couple of a couple areas certainly there was an objection to the information but also in homes they would further then then in our particular case in the home officer testified regarding an entire statement of the confidential informants dealings with him that the defendant prior to the incident and here we have just the concerned citizen the only thing in this particular case is the one time sighting of the defendant so there's there's more information that was provided in the homes case as far as the that defendant it was a prior all the information regarding his drug dealing and gun toting however in this particular case we have just the one time viewing but i would say in any respect the the defendant cannot establish present prejudice certainly it's their burden at this time regarding playing air the government's admits that there are facts in this case to prove that the defendant knowingly possessed this firearm the testimony from the defendant's girlfriend who claims responsibility for this weapon her testimony is not credible at all if you read the record you see that she talks about certain aspects of the gun however she indicates that she put the gun out of a different window they want addressed and the opening by the appellate but what's the justification for the imposition of these conditions for behaviors that are in one instance well over twenty years in another nearly twenty subsequent to a sentence for the current charge the information in the pre sentence report just showed a pattern of conduct by the defendant and the judge evaluated that information and found that in fact those conditions were valid they are not much of a burden on the defendant certainly they're there classes that you should take but they're not restricting his movement in any anything so the conditions are are less then some other things constraints that the court could put on the defendant and they are supported by the information within the pre sentence report  street and that this was acceptable testimony because it showed the law enforcement officers investigation and how they got to the search warrant but that it evidence itself is inadmissible because as holmes makes clear that's an exception to the hearsay rule just to show the scope of the police officers investigation and how they got where they got if that were the case that exception would completely small of the hearsay rule so you the government is trying to rely on improper evidence to say that defense counsel cross examining on that i didn't somehow open the door to further more prejudicial evidence the cross examination it puts defense counsel in a position where that evidence has come out and not only was it testimony that mr hollings had was the person with a firearm but then detective but further testifies that they followed a car that generally matched that description and it was paris hollingshead and he identified that person as par not fairly clear here though perhaps mistakenly defense counsel had a strategy and the strategy was they were anticipating that french was going to testify and could then begin right away taking shots at this lineup with detective botches testimony and isn't that a fair reading strategy that was going on and sort of a no win waver in this situation i think it shows the strategy but it does not show a knowing waiver because that strategy decision was based off of the false belief that this eyewitness was actually going to be testifying so but ok to say that it's taken i'm sorry but it doesn't est knowing tactical waiver to say that ok this is hearsay and it's just because it's based on a mistaken assumption that the government's going to call french yes that's our position that it can't therefore it's not knowing yes that is our position that it was a tactical decision based on the mistaken belief maybe at the time and it put the defense counsel in the position of what else was not defense attorney supposed to do this evidence came in and would lead the jury to the logical  that mr halling said was the person in the fire with a firearm in the street so the defense attorney attempted to cross examine on that specific testimony that was brought out so it's either cross examine and try to limit the prejudicial impact of that testimony or let it stand and then the jury's just going to infer that that was mr halling said because detective also testified that we found someone generally mashi was description and he had a firearm not it could have been a strategic decision at the time but it was mistaken and because it was mistaken it was not a knowing and intentional waiver and i want to i didn't have at this point in opening but i want to head out that it was used in closing this identification was used in closing which again goes to the prejudicial impact and refute any idea that this was not offered for its truth because in closing arguments the government first begins to discuss the only element is knowing possession and then goes into here's the evidence of knowing possession and then discusses the eyewitness identification and the lineup so it was used for its truth it was used as part of closing what impact that it had and briefly just to address the supervised release conditions these are two conditions two separate conditions that deal with treatment requirements based again on convictions that were over ten years old and i pointed to the kind of case where that was only one condition and that was based on a thirteen year old conviction a domestic abuse conviction and since then the court noted there that him and his spouse has reconciled here since his prior convictions mr hollings