i agree with that under this court's precedent i'd like to still obviously keep that issue alive in case the supreme court rules otherwise but putting aside the crawford issue i think that under the due process analysis and  evidence the court's ultimate finding and the nature of the facts proven by the hearsay evidence and the government's side of the scale is weighted by the difficulty and expense of bringing a witness and the traditional traditional and issue of reliability of the that this was diluted and there's no testimony really saying what that dilution means we have somewhat of an answer from the probation officer kim who says that he called the test center and they said that the dilution means that actually urine was placed into some other liquid like water and then we have the testimony also from mr kim which says something like from the probation officers collective thought back at the office dilution might mean that it was placed into a bladder or some other device then excrete it into the test vessel the problem in this case is that we have a stark contrast in the testimony we have the schneider will soon come in and say we witnessed every second of the year analysis tests we watched her there was a mirror behind her corey yeah i think even the test center said that there was something wrong fundamentally with this urine sample and so it's either the wrong urine or got contaminated or there was some massive failure the testing virgin yes any of those things could have been tested placement of urine and virginia that contain cocaine correct it's we were not able to challenge to question anybody along this chain of events other than the snivels and so there's this series of events used the wrong word there should be deemed unreliable due to the problems with the test and that is the fundamental problem here is the document that was relied upon by the district court itself had the discrepancy in it so this is a case where not only did we the evidence must be based upon verified fact the revocation should not occur and this is morsy because of erroneous information and in this case the court was given information that the snivels the testers in honolulu watched his president they watched the cup go to the counter the test was at least in honolulu the testimony is that there was no way that it could have been tampered with and that it was a pure test that was then sent off to virginia and then we have that testimony through the hearsay evidence that that test had a problem in virginia based upon that there is nothing to explain why the court should rely on it the court is faced with a decision that we have a clean test in honolulu and something wrong with the test in virginia and based upon those facts i think the due process requirement there that the result be based where that decision by the district will be based on verified facts show that the district court did not do such and based upon that i think under the sufficien the evidence that was presented here in the district court made an error how about addressing the truth can she refused to submit to testing that i think is tied to this whole erroneous test because as you see from the record the district court went off for some time about this presence credibility now mispresent ever testified so the finding by the district court concerning her credibility could only be made if the district court believe that her test was absolutely dirty yet miss progress through the testimony had been demanding a cleantech a new test and stating that she was clean to her probation officer that finding could only be made upon the district court's belief that her credibility was th no the allegation is refusal to test and she didn't show up she showed up at the probation office and that's actually a slap and again that the record is clear this morning she found out that her brother passed away but she still came to the probation office with the records from her test to hurt her testing or her trip and then after the probation officer called her either that day or the next day she returned to probation and tested clean the following day so i think there's no basis for refusal to te out of course sort of chronologically and look at the decision to revoke it and the reason that's important i think that's the single most important fact in this case and that's why i quoted it and cited that twice in my brief the decision the judge made it absolutely crystal clear that notwithstanding the scientific evidence in this case that if another defendant had appeared before her with more credibility she might have found that that testimony w rebut the scientific evidence and the reason that's important is because the judge framed the issue as being one of two scenarios one that the defendant had managed to substitute some sort of bladder and suppl diluted urine basically hoodwinking the collection of people the other possibility was the possibility raised by the defense that there was some mistake in the testing process but let's let's concentrate on the first possibility i thought of the there was testimony that while she was giving the sample she was in a room totally surrounded by mirrors and under the observation of a trained operative from the federal government who test she did not substitute anything the judge said people do this and based on this general amorphous knowledge unback by any evidence in the record he found that she may have done that don't we have a problem here as far as due process is concerned when there's no evidence that she did it and the judge is basing himself on personnel and we finally put on the second probation officer once again so the defendant could start defense and again you know that's why in this particular case the judge framed the issue one of two ways or either of two things happening one that there was a mistake with the evidence two two that the defendant had successfully managed to substitute in the killing with the evidence from which credibility which you didn't testify would you talking about is a misuse of forro for be evident in other words character evidence she's a bad girl in the past she was a bad girl this time can't do that so next where is the evidence  that she observed her at all times and there was no substitution there was no delusion if she did and the only level is not of the fens pocket if anyone's pocket than your pocket chief judge gilmore was the fact that the test result came back tempered and the judge stated that in her experience defendants have tried all manner of trying to substitute  a defective sample it came back as a sample where the specific gravity and the creating levels indicated that the sample had been diluted in this particular case and  still they were still able to test for drugs in this particular case but the sample had been tampered with the probation officer testified that in addition to talking to the lab in the collective experience of police and office that this man that the sample had been watered down not that someone had been drinking lots of water in order to flush that was that was just more if you rely on the the testimony in the case cited by my colleague it could mean the other thing as well that's correct your honor but that the courts finding that there was a substitution or adulteration of the urine all i'm trying to do is get off the page about the virtual complete denial of the right confrontation in this particular case the defendant was able to make his defense he was able to get out from the witnesses that there was no substitution he was able for the defense to allow all of her statements to come in through those witnesses if you think look at the last probation officer a probation officer dinello i called her and mr winter also wanted her as a witness but i called her and the only reason i put her on the stand was so she could she could put forth in the record the fact that the defendant did in fact request a retest now that in no way helped my case but i put her on for that reason and mr winter didn't have any questions for her so the the state statements from the defendant exculpatory statements from the defendant came out from both of this naval because of her good niall's came up through the probation officer through her denials and it came scientific evidence through her statements which have come in through the various witnesses judge looked at the assess the credibility of the witnesses in this case looked at the scientific evidence balanced everything and in her discretion ruled in the government's favor so not only have we distinguished in the martin case but the real issue in this case was credibility and that's why i cited that passage there twice how does a credibility finding tell us how the delusion was caused the only person who testified as to how the dilution might have been cause was federal agents know people who say it was not caused by any manipulation by the thing because i was watching her if that's the only evidence it's only once you hold lucian was cause samples tampered with at the lab well we have we have we have we have two things here your honor we have a scientific test and we have the observations of a person i don't think you can say that all scientific tests are infallible and i don't think that you  i just want to make one point the government lot of the issue of the distance between virginia and hawaii and i can't see that is the answer otherwise people in virginia would of course get the right to confront and have more due process and then people as we come out towards a y and i think used to discredit those statements what's wrong with her what's wrong with that is the only way her statements are i'm not dirty please retest me essentially if we boil it down that's the statements that were brought in through the government's witnesses in order for the judge to find those statements to not be credible the judge would have to believe that the test was valid and she was dirty so the judge would have to accept the hearsay evidence of the testing w virginia and the report and the probation officer through that evidence the judge could say hey i know she's dirty and that is contrary to the statements made by the defendant so the problem still goes back to you can't use your credibility i agree with that analysis but i think more importantly here is the fact that in order for the judge to discount that the judge has to believe the faulty test was correct and so i think we go back to the