other any of the matter is actually  amendment so i mean that's what roland said it wants to assure and then does not apply in this case sound standard case unless you can show and satisfy the plane or analysis that that that's the situation that you have here you have a lab reports that is a peer in their work that does not change because the information on it there's no scientific methodology those counsel in cross examination a probation officer i think frankly going back to the laboratory test that was made in a hearing there  st address the one of the questions you raise concerning the standard of review as i read the the record of the revocation hearing there were basically i don't know if through two or three objections there was an objection that was based on the th amendment right to con confront or cross examine i guess the lab technician that it wasn't entirely clear who wanted to cross examine amendment but i suspect that that is adequate to invoke the qualified confrontation right that the courts have recognized in the context of parole hearings and revocation hearings that was one objection there was no objection based on granlund there was there was no object in fact there was no challenge to the accuracy of the result of the lab report the issue with this hearing and it was a strategic issue that both mr mcelroy referred to and the lawyer referred to at the beginning of the hearing the strategic issue was whether or not not whether or not this was a positive result that wasn't in contest what was in contest was whether mr mcelroy had knowingly ingested cocaine which would result in a finding that he knowingly possessed cocaine which would result in automatic revocation and more time in jail and that was what the issue was at the hearing the lab report i mean this court has has has considered a number of cases involving this type of hearsay and i would contrast it with the type of case where the where the hearsay is a who saw what out of court witness such as an informant or a victim of a crime and in those cases this court has as has scrutinized fairly closely in a said d no those in the balance of the defendant's interest in cross examination against the government's interest essentially inefficiency the defendant's interest outweighs but but in the case of lab reports these are business records they're they're done by companies that are in the business of doing these kinds of analyses the it's not in the record but i would suggest th probation officers in this in this circuit do a lot of these they collect a lot of these samples they move a lot of them along there is a process here and there was no challenge to the integrity of the process in this particular instance i mean for abbott but she was a one time the lab director for kroll she was the d subject in part or she was a witness in the in the minute case there wasn't a question about the the integrity of this as far as the methodology in the ph so the lab report wasn't some some blank thing and i suspect that council looked at it as a strategic matter and said the question is that on this lab report basis can the court make  finding that it was not passive ingestion now there was no evidence offered a passive ingestion mr mack right in testified in call witness he didn't subpoena lab technician and this court has said where there are those kinds of challenges there's not a strong interest in cross examination because the defendant or the release see can and can seek that evidence if that's what he wants to put on that evidence was not put on in this circumstance and so the question was well would should should should the the lab tech be called so he can cross examine the lab tech on some other issue i'm not sure that that has been shown on this record at the lab tech would have been d able to be metabolite is enough that it will exclude an inference of passive ingestion what was established in this particular proceeding was not just the lab report but all of those other things that the counsel referenced there in the record there were a series of reports that included positive your analysis there was one i think in the middle of two thousand and eighteen there were several positive analyses in the july august timeframe of two thousand and nineteen mr mcelroy acknowledged that he had been using he admitted even that he had been using for a two week period of time the one that he very contested was the one that was the basis for the revocation petition in motion in this particular proceeding and that was  the lab sample that was taken by cell mar which was a counseling service that he was attending following inpatient treatment that he had in euston and and that was the the one that was the basis for  revocation or the finding of possession and use and what what we submitted we said it in our briefing is that there was there was considerable evidence in the form of his long history of addiction of substance abuse the positive analyses that he did not contest did not deny in fact he acknowledged that year in the prior year and i would also point the court to mr mr mcelroy he elocution in front of the district court because mr mcelroy specifically said at the end of it all and he made reference to the conversation d he had had with his probation officer mr hale but but he also said i could tell you how this dirty usa your analysis came up and i know you would probably sit there and say no and then the court cut him off because the court i think was trying to give deference to the position the strategic position that counsel had taken but i think that if you read this record there's no question that mr mcelroy tested positive that was not what was in dispute the dispute was whether or not this was passive he offered no evidence of that and as he started to give an explanation he was cut off and he did and his lawyer frankly didn't want him to give the explanation we moved to supplement the record with two letters that he that mr mcelroy wrote to the court following the sentencing in which he apologized for taking the position he did it is plainly but he did it on advice of counsel which to me implies that mr mcelroy fully understand understand he acknowledged that he basically self medicate and the district court in sentencing him said you need to not self medicate you have had a serious problem for a long time i wish you luck in trying to solve it and  passing the in passing the sends the court sends to send him to twenty four months but the court did not sentence him to a further term of supervised release because i think it basically reflected they've tried they've gone through the steps they could to try to help him with his problem and it was they were going to take it out of the courts he was going to the service punishment and then it was he's going to have to deal with his childhood trauma his post traumatic stress disorder and outside of the corrections system for a time but the vets that's what i think it was as i as i see the case there d are there's sort of three issues you know the st is was the report properly admit it or was there some sort of remedy that should be available under grantland i don't find a case where this court has granted some kind of relief on a failure why with all of the steps  brandon and i don't know that you will find one because the rules of evidence under the rules of evidence this report was properly admit it it was a business record and it was an objective to what is your response  or what what it means to say that it's mandatory it's a rule that judge police devised in a case that actually i happen to argue thirty year old twenty five years ago and it sort of came out of nowhere and i think that he was expressing the frustration with d these kinds of issues that come up over d and over again and you know i think was trying to solve something but the grantland wasn't addressing a problem that the parties had in this case there was not a challenge to that who took the mr mr mcelroy who took that sample he gave it there wasn't a challenge to what the chain of custody was in there wasn't a challenge to the methodology or the outcome or the result and in litigation parties make those kinds of of determinations i may allow in hearsay because although it's hearsay d it's not a mandatory requirement that it not come in and in some instances it's more efficient in some instances it gets in evidence that i'd like to get in anyway and i'm not quite sure how  to do it and then to come afterwards a o l i think that hurt me in the end it was a very good decision now it's a mandatory rule it shouldn't come in and i don't think that's what grantland is and as i think what grandmother was going to was trying to perhaps create some kind of routine normalcy but but you know i can't tell you that every lab company is going to necessarily follow that and if the parties go into the proceeding sort of understanding what the groundwork is well why do we need to jump through all the hoops to get to get long drawn out affidavits of what everybody did when everybody pretty much knows what they did the outcome wasn't what the issue was and it wasn't a claim that it wasn't in his blood that wasn't what the defense was yeah but you had knowledge i suppose it then these reports were not given to the defendant five days before so much i'm not sure of that judge think the balance comes down there was implicit finding here the integrity of the testing process was not contested the matter that d the mr mcelroy his lawyer wanted to get into d was was not really the subject of cross examination of the lab technician there might have been witnesses that could testify to how many nanograms is let me get into what did they want to get through cross examination don't know for sure but what i think it was was about the passive ingestion i think that's what the issue was because that's what the back and forth was between the government counsel and the defense lawyer was about what the meaning of courtney was and whether the cut not their rights are not violated if they're not allowed to cross examine and so he didn't really lay the foundation but you know sort of positing for oks raise enough of a question in the lab report says that the testing level that witness knows anything about that that's what my point when you ask him well but you know if he is the one who's raising this as as a challenge to the lab report and this court has said for those kinds of challenges to scientific facts the defendant can call witnesses he didn't subpoena the lab technician he didn't ask for more time to get the lab technician there he didn't say we absolutely must have somebody from the lawyer laboratories or abbott laboratories he could have done have everything that grantland provided and he was asking for cross examination to establish the fact that this lab report resulted from ingestion and not from his willful talks about what the laboratory process was what the chain of custody was what the methodology was and what the result was it does not talk about excluding all possible other theories for how the metabolite could get in there if for example that it's there's any likelihood or possibility at all that the lab technician can answer that kind of question because i don't think that's what their expertise is and nd of all if that's what he wanted to prove he could subpoena the witness and he had opportunity to subpoena the witness but he didn't he could have asked the court can we have more time to get this person here he didn't ask for that he didn't even put his own client on the stand to explain why it was passive ingestion there is no evidence in the record about passive ingestion it's all his suggestion there's nothing in the record to support a question of passive ingestion that this court said in minute with that he has no right to cross examine when you get to that a year you tell me that no elab could have would have i don't know judge but that's not in this record he didn't make that record he didn't make that objection and he didn't make efforts to call that kind of witness if that's what he wanted to put on he had the opportunity to do it and in this particular circumstance he hasn't shown that the concerns about what the expense is what delays are the laboratories in gretna louisiana and the hearing was in midland texas that's not just a simple matter of calling somebody to come across the street because we're going to have you here and we're going to talk to you that's that's a that's a two day trip at least he didn't put on any advance of the two year trip it's a two year trip with  diplomat well perhaps but as i say i mean he had the opportunity to put that stuff on but not putting but the government not calling the lab technician didn't violate his confrontation right and that's what the issue is here and the other issue is the sufficiency of the evidence and as i've already summarized i think the evidence was sufficient both a strategic decision they made plus the evidence of his prior use the prior positives the dispute that i think mr arrestee basically didn't know she couldn't say it wasn't she couldn't say it was she said it was possible possible all fall there's a lot of things that are possible i did not intentionally who was only concerned cocaine and this is bum passive ingestion he testified of that on the oath no sir he did not his statement to the court was i could tell you how those dirty  defendant was represented by a lawyer and the lawyer got up at the outset and said we have to contest this because if he's found to be in possession it's a mandatory revocation and i think that mr mcelroy as i read the record and his subsequent letters he knew that there was dirty here and he knew there was a positive he knew why but the lawyers position was we're we're going to call this passive and ingestion and we're not going to acknowledge enough to make it use and we don't know they're there there is no evidence of passive ingestion and i don't take mr mcelroy words as being passive ingestion i take that as i got too close to something and i made a mistake that's how i read it i think it's evidence that he did knowingly you know we don't know really i mean if they don't know the full picture if the court would let him explain his position and that seems to me  on judge i think what was going on is that the defense was we're not going to talk about this and then mr mcelroy as elocution started to talk about it some and the judge said before before he gave elocution he said i'm going to give you an opportunity to testify without being cross examined well that's not exactly fair either and i think the judge was trying to make sure that mr mcelroy didn't say something that was inconsistent with the position that he and his lawyer had taken through the hearing that's how i read the court saying ok we careful where you're going here i think that's what it was about i think he was trying to prevent him from making an admission is what the court was doing bottom line to me is look at the end of the day the issue that he was he was not contesting that he had dirtier that's not an issue so graham is interesting but it didn't make any difference the issue at the end of the day was was his cross examination right cut off well it didn't my position is he could have called those witnesses it be one of them and nd of all he didn't show that the lab technician was going to be somebody who could answer that kind of question in any event so his confrontation i think he needs revocation hearing this what it what happened here was the only it set i seen a record that the government fired the last day of the hearing we don't know whether it's that morning we don't know whether it's at the decides this is what we're going to obligate the government to do in this in these cases with this particular kind of better that and it district cork's nice put explicitly on a record why it is reliable that is a protection against hearings very much like this because we complain about the sufficiency of elaborate poor there's a methodology is missing be the chain was presented by the government you know when we go and look at morrissey mr merrick roy is entitled to due process confrontation is confrontation it's not admit laboratory reports in rotation hearings this is what it has to do if it doesn't do that question is what is the remedy is the remedy what we see here in this hearing we're  defendant goes away for two years and the government makes arguments saying well everybody spot on i think if a party has an affirmative obligation and it doesn't conform to that obligation was prepared to say that the government can choose to comply comply with or at the hearing it can produce light witnesses it's going back to the shell be admitted and then if you don't make an objection to it you're not able to raise an army appeal which is that some well and the reason why this should be an exception to that rule well the trial lawyer to more was he supposed to object to you do you have the district court in this case that once he makes the objection just reporter so rules without any explanation the probation officer that her or just say that it's it doesn't have to be a force it and it becomes actually a suggestion let me ask it very say that your argument here is that the government if they can do it