oklahoma in tulsa on behalf of mr mark murphy the issue posited by the appellant mr murphy in this case is whether the district court erred by denying him the right of confrontation by allowing hearsay and a hearing before a judge for s tulsa now marco murphy had served time in prison and he had been released subsequent to that on supervised release which is a form of probation that federal inmates served after their release meanwhile mr m supervised release it was alleged that he had taken part in some drug dealing and that was rick that was grounds enough for the probation office and for the government to decide to bring mr murphy before the district court for a revocation there having been a drug deal or is it not that he was using drugs and one of the using drugs was not really what the judge relied upon when it came to revocation i can't recall whether using was necessarily part of the petition actually but i do know that the main reason the judge  revoke it was the allegations about the drug dealing the two undercover the true sales and so at the hearing the government brought up a sort of other men and officer leatherman recounted for judge for sale how there had been a until informant who had approached police and said that he believed my client was engaged in drug sales and so but this is that the probation here yes or this is the revocation here to do hearsay would be properly admissible for those purposes yes unlike trial where of constitutional rights are available to the defendant it's a it's a to the court sort of hearing and in a court sort of hearing in this regard there are still the rights for confrontation still the rights that we expect you know in normal due process however i also expect that the lawyer properly represented the client would ask for more assertive more object or do something other than stand there like a potted plant not to let the cat out of the bad but i am the trial lawyer who o'mara is the person who would be selling drugs now i did object to your say at that point the court ruled said no that's not for the truth of the matter asserted rather it's just to show what the officer did next i'll acknowledge guys that this was the last time i uttered objection hearsay in that perspective now what did happen and the government will argue to the court well based upon that the mr right now has given up his right to stand for this court and say to the court that this district judge created this error and caused this there well we have argued that there might be a name  way that the court actually saved us by virtue of at the end of the hearing or actually at the sentencing hearing judge for sale chose to make some findings like we've talked about the full range of rights are available at a revocation hearing however according to federal rules  criminal procedure number thirty two point one a person who is the subject of a hearing in this regard may confront or may assert let's see what say that one has the right to question any adverse witness unless the court determines in the interest  to allow that person so while i didn't talk about hearsay again i did raise during the course of the hearing thirty two point one which was actually as to an ancillary issue of evidence however counsel can i just stop there i've yes i'm back i'm looking at that part of the transcript and you did mention the rule yes and it had to do with correctly statements made in the jail recordings there was a jail phone call from my client to his girlfriend in which the officer leatherman had obtained the recordings of it and during the course of the revocation in support of this is indicative that my client had engaged in these drug dealings that my client made statements and so i had objected at that point and said that's not best evidence i have the right to at least have that so i can for confront it and the judge said you know you're right and then he ended up continuing allowing the hearing to be to continue until tomorrow he did decide that enough evidence had been a deuced by a preponderance of the evidence were raising those things as an objection it was in connection with the jail records yes and i acknowledge that and so i guess i mean i know that the judge later at sentencing i think this is where you where i play interrupted you but the judge later at the sentence addresses the balancing test  and under jones but i'm what i'm having a hard time understanding is how in your brief now the judge applied that test to all of the hearsay that was presented at that's contained in jones has the balancing of interest whether the government has a sufficient interest not to bring the witness versus my client's right to confront the witness and just for sale did in fact go over those issues decided that he balanced it in favor of the government's right not to reveal the confidential the name of the the identity of the confidential informant ultimately then said that he had correctly balance the interest now here's what i have to say the government says that by virtue of some cross examination that the officer that i have waiver given up by a known right of the ability to now stand before you and say hey i was denied my right to confrontation but counsel i know that that argument has been made and you develop pretty much  at least at the revocation hearing didn't object to the full scope of the hearsay evidence that was presented there just just jail because just in the jail recordings to the extent the rule is rule thirty two point one is sort of a hearsay yes how why are we reviewing the hearsay objection at this point for plain error and i'm talking about all the stuff you didn't object to yes the witness talked about a lot of things without any objection there were a number there was a number of things that came out about what the confidential an informant had direct examination there were a number of things that came out about an alleged trap house where my client had been going back and forth to now what it amounted to to me on the ground that day was that i had originally asked the judge whenever it was asked of my client or asked if the officer if if the confidential informant had identified my client and that i then objected to the hearsay at that point because that's the crux that's kind of the key did this confidential informant know my client reliably enough that he could be held that we rely upon his information so afterwards then the government did present all this evidence here's what the confidential informant said here's where this happened here's what we saw what i'm going to this argument goes to issue one whether you  he said let's spot you that will spot you issue one let's get to issue two did district court abuse its discretion in revoking the supervised release after concluding that the interests of justice did not require the testimony of a confidential informant or additional police officers under thirty two point one well what i would say judge is first the abuse of discretion standard applies to whether given the evidence the court had to make the right decision to order revocation under a preponderance of evidence and what i'd like to argue to the court is that by virtue of him not requiring the government to bring this confidential informant in allowing me the opportunity to cross examine that person that we put it into a different  standard of decision which is whether this court if you find this constitutional or then we get to tell the court ok you government then has to prove that this was harmless beyond a reasonable doubt ok and so that requires me then to show why the judge were i to be right in standing in front of you and claiming that i have the procedural right to make these arguments that would then allow me to say to you that the court did in fact air because in addition to this information that was allowed in addition to what the government has argued i argued that there are certain procedures that confidential informants are used with the police they are typically wired up with a mike so that the police can hear what's going on many times are provided with a vehicle that has guy as the guy who was selling drugs that to him to him ok where that precise it would he's a drug seller it's that we have these two controlled by eyes and he sold me this cocaine which i am you right when that police officer showed my guy's picture to that confidential informant he says that's the dude that's doing all of this we're way beyond that right and all that it takes to revoke him is for the judge to have the evidence before him and believe that that your client handed cocaine to the cia twice but i want to see but right that's enough but the court has to ensure that the evidence that he is relying upon to make that decision for that perhaps my client was afforded his constitutional right to test that evidence but all i want to get precise on this broad ranging hearsay everywhere ok what i want is because i think this is right maybe you'll agree maybe you disagree it would be enough to revoke him if the officer had come in and said i had my binoculars on him and i saw the whole thing and we tape recording of it and so forth you'd be good with that right if they came in with that judge i'd have a much harder time making this on you can make an argument could you that would be a r object in other words without evidence with their having trailed him without ever having put a tracker on his car and seen forty some visits to norfolk this stash house in twelve days and the other evidence they know who it is they was the identification and so i understand all that what the officer said so they all die down to fight him thanks they knew who it was who drove up and they knew where he invented the stash so they knew that there was a car they associated with mr murphy and they knew that they associated that house with mr murphy and the problem though and there was no testimony that i can recall the government might correct me but there was no evidence that the offices i set there and i watched that confidential informant get into the car with marco murphy who i knew to be marco murphy the authors was never identified and so my my argument has to do with if we're going to assume it's mr murphy judge then we need to make sure that you have valid reliable evidence in which to make that how did you make that argument did you say hey judge a d m and i might have objected on personal knowledge but i didn't and but still i want the benefit i had some foundation arguments but that would have been the best way to pursue it counsel there's a sentence in your brief says this mr murphy arrived at the buy location in a silver charger that was registered in his name stand by that statement well i believe that that was what the evidence in the light most favorable to the government would have shown i've been representing folks for twenty five years it's a lot easier just to call it  exercise in isn't the question whether or not there's sufficient evidence apart from their say let's just get all of that out of there and say these are sufficient evidence for the government to revoke to that question yes your honor a arguments address the arguments raised by the appellant and the first argument was that the issue presented to the court was whether the district court had abused its discretion in application of rule thirty two point one but we're asking you to assume it did take that evidence off the table and tell us why the remaining evidence would still support revocation i think there's i mean then you get there anyway under either a harmless error or a plain error prone three so it's in the   i would direct the court's attention to the g p s tracking device that was deployed on mr murphy's car which was which showed as the court alluded to it during a period of twelve days forty five visits to the stash house location is that in the transcript that he had a key at the arrest that he had a key here on earth not that the key itself had access to the north folk residence the fact that the key had access to the norfolk residence is in the record but not the transcript when you say the record what are you talking about because the record what is there in the record besides the revocation transcript in addition to the revocation transcript in the sentencing transcript the record includes the police reports that that's correct your honor and that's that's because and i direct the court to volume on page thirty one of the record that is due to warrant for offender under supervision which stip which spells out the violation which was here in new violation of state or federal law and that petition includes there in the police reports well i'm going to answer a question is that really part of the record that isn't that isn't part of the  document again referring to a petition for a warrant under supervision at the court consider as to whether that the court had before it as to whether a violation had occurred and the company attachments to the people maybe maybe i'm just not understanding interchangeably and there's no separate petition for revocation this would be the potato to your argument that the court could properly consider those materials in deciding whether to vote yes or o and i think the court could probably consider the attachments to the petition and i think the court did properly consider those attachments and one of them specifically directing the court to volume one page forty s community center or is he in command and control us the their record indicates that mr murphy had access to the residence that there were there was paperwork and documents at the stash house belonging to another individual not mr murphy so they record does  suggest other people have access to that residence but i would contend the fact that mr murphy had a key to the residence coupled with what the tracker showed which was multiple visits short term visits but mall to pull visits  visits come paired with the other evidence that was presented by the petition and by the revocation hearing is ample evidence i would i would not argue here today that those visits alone would be adequate basis to  and i think that's a fair assessment in order to be to be fair to the probation office to charges the underlying violation based on the conditions and whether there was a violation here or the violation set forth that volume one page thirty one is a violation of the mandatory condition not to we were watching with binoculars there's all these open questions that you don't usually see with troll buy but they do give the cia money the money they monitor earn see the mr murphy is coming in the car they know it is because it on the plates at the are on him they know a whole lot of information that's not hearsay and off he goes with the money back he comes with the cocaine and he says mr murphy gave me the cocaine is that the only hearsay comment that matters all of the previous stuff they came to know mr murphy that's only been here say it's just background information for why they happen to be there that day i think that's key to your most recent question your i think that's a fair i understand the question are you asking is it enough to support revocation or i think there's more than ample evidence if you were moved even the informant statement that you're alluding to that it was mr murphy who sold the  cocaine i think excising that statement from the record i still think there's adequate evidence here to support that revocation decision the facts i already laid out with respect to the tracker and the stash house among them but also the search of the stash house of which this officer who testified was involved with him to say look her was done side of the car that's that's not clearly set forth in the record your honor but i i think in part because   i can appreciate the court's concern and i recognize the record could be more and more could only depend i just ask you to clarify something in your brief on page thirty two it says officers observed murphy selling crack cocaine to petition and those reports indicate that there were officers surveilling mr murphy and that when he received a call from the informant he traveled to the location particularly of the second controlled part of this is a pretty specific think if properly objected to some of the content of the police reports would qualify as hearsay where they offered an over that they were not they were already before the court your honor they were was confused by that because i was wondering what happened to the document that says petition for revocation the that there's nothing there that says just a little what is the violation of the violation your honor a mandatory condition of the defendant's supervised release and it alleges violation of mandatory condition now i'm quoting the defendant shall not commit another federal state or local crime and then it provides a narrative under the  identified violation again this is why i'm on page thirty one of a summary so the nurse is selling cocaine well your honor the the narrative below the actual listed violation wilson would testify that in march twenty eight thousand toss a police department conducted surveillance on murphy after receiving information from a confidential source that murphy was selling cocaine on april second tw executed at the residence where murphy was witness selling cocaine during a controlled transaction officers were able to retrieve evidence to support the criminal activity was occurring etc as events so to your question they i would agree the question that the government as to the informant the good cause was established by the government's objection further this court includes recognized that book but there was no explanation given for why the c i was called there might be all kinds of good reasons not to call the c i but i didn't see anything that explained why he's working other cases that put him in danger if we brought him in nothing and that was true that the officers to there's no no attempt to justify not bringing these witnesses and i think that's because your honor that the issue was not presented to the court there would be you the right to confrontation was never served it there the objection wasn't raised and mr murphy was involved in to control buys of cocaine now he goes on to say that he's not going to hold the my client was responsible for the bulk of cocaine at the trap house that we've talked about he does say that he believes that he did have access to that house but ultimately i would argue to the court that the decision was made upon those two controlled buys which were only witness by and only proven by a confidential informant that i never had the opportunity that i never asserted but also never did have the opportunity to cross examine counsel do you that the police reports are part of the record for a review of how the government didn't move it's like oh judge marion appollo used to say the supreme court of oklahoma he would say that filings are simply just pieces of tissue paper anybody can file anything it's only when it comes into evidence before it's before the court and a bit admitted that it actually is worthy of coming before this court just like my lack of objection it's got to be admitted for this court to be able to review it so i appreciate that to be answered no