f for the period of supervisor leaves i just learned yes i just learned yesterday that he had then revile aided in mid december for testing positive for marijuana and at that point the judge imposed an eleven month sentence and terminated supervisor leaves after that point for that reason i do not believe this case is moot because if the court determines that there was a due process it shouldn't  month sentence was improper but i have a question here obviously from the standpoint that  what the witness that you wanted to testify was the gentleman that was present when the actual sample was taken and the testing that was done it was test that that was before in the hearing and also your client says he drank a lot of water so what was this witness going to show well your honor i mean if he said he drank a lot of water then i was a lot of you studied but he doesn't claim that they can't consider the test because i'm a diabetic and that's what that was his explanation of why he drank a lot of reading on appeal that has formation as to why perhaps the sample may have had too much water  and i want to back up the sky and focus on the the decision to not put mr colton the person who actually has collected and has the sample who could have been cross examined cross examined about meter basically that left mr parkinson with no defense other than to take the decision ok we'll have to assume that that has a correct if we can attack the test because we don't have a person here that we can attack with so we can do say how did you collect the sample did you use the clean up the dirty cop retrained how to take the samples did you put in the refractory meter were properly did you make sure it was contaminated right can we make a harmless if we find a violation can we make a tested well but there is if you have the test and you have the the female officer that says i sent him in there to have this sample and you have your client saying i drank a lot of water and we know that probation officer young did tell mr parkinson if not the night before with other occasions that you have a valid test you should have get a good breakfast and not drink a lot and we do know because mr parkinson was put in the position of having to defend these charges without being able to attack the tests themselves he said he never said you know what i definitely had its last sample he doesn't know he didn't do the test when he was what he could do is say you know what i was drinking a lot maybe that's what caused the correctness flush sample maybe that's what caused it but i don't think his testimony can be used to infer that the test itself showed up made before the testimony came out with respect to what the probation officer testified to was objection on the grounds of hearsay and that it's the government's position to not raise the specter of mor versus brewer with the court would have to then go into a balancing test of whether or not the defendant had the right to cross examine but assuming i don't understand that supervised release settings or at least in this progeny what they're looking at is trying to develop some flexibility the defendant in the case of martin before this court was able to put forward at least the hearing that he was contending that the results of that your analysis were in dispute and it's the government's position that when the defendant makes simply a hearsay objection without raising the issue of what or who it is that he needs is the same as saying nothing there that we have chosen not to call this witness and if there are circumstances in which mirroring can then it's sufficient if the government the government's position that this was one of them that the because what the person on the stand was exactly that that the urine sample that he submitted to his probation officer contained a lot of water and because he had been given instructions by the probation officer prior to that not to drink copious amounts of water before submitting a urine sample he was in violation so if there wasn't an error committed by the court not engaging in this balancing test under morsi because simply by virtue of the fact once that hearsay objection was made the court would have had to go into that balanc back to court and request a special condition that the person be specifically instructed not to drink large amounts of water prior to testing but as this this court held in and its ruling and duff that those the district court's ruling that a violation had occurred so that was the procedure or at least set out in this one nine hundred ninety seven guidance for probation officers it was not followed in this case but it is the government's position that actually not to starve the district court ruling that there was a violation with respect to duff it brings us to the second issue of whether or not assuming that the defendant are part of me that the witness did come forward and that that was not a violation as to what it was that she testified to whether or not that constituted a violation on the terms and conditions of the supervised release it's the government's position that it did in fact constitutes such a violation because what the defendant had been ordered to do as a by the district court judge was to participate in a drug treatment program as directed by the probation officer if directed by the probation officer that in concert with the probation officers obligation to facilitate the statutory obligation to facilitate the the defendant's participation in and carrying out of the judge's orders was allowed to supplement that explicit instruction with her own instructions and that authority was given pursuant to thirty six o three and that is consistent with authority by this court that the probation officer although instructions are not explicit in the court's order probation officer has authority to supplement those instructions to facilitate the defendant's participation in supervised release here what the the probation officer did was simply tell the defendant if you are going to participate in drug treatment the urine samples that you will provide must be ones that we can test that is you should not drink copious amounts of water prior to the testing and it's the government's position that that was a under doctor that because that instruction was consistent with the the court's order to participate in a year and a drug treatment program and because it was carrier pursuant to her statutory obligations to facilitate the defendant's participation in that program that that instruction  the that really gets at whether or not the defense that the defendant put on at the supervisor at least revocation if it was of an abuse of discretion for the district court to find a violation given the defense that this was done pursuant to or least because of a medical condition i think what the district court took into consideration in weighing that defense was whether or not the defendant had complied previously with the terms and conditions of a supervisor lease and what came out during the  the post a letter to the to the district court judge was that the defendant had twice submitted urine samples that tested positive for marijuana at once mr drug testing and on one occasion had missed drug treatment counseling and i think that it was not  not was not credible and that the court made a decision that this was probably something he did to avoid detection of for their drug use there was some back and forth between the district court judge and the defense counsel on this yeshu which raised whether or not if the defendant had this medical issues throughout drug testing in the drug testing program why this was the first time that a diluted sample would come out that is if you have been drinking large amounts of water because of medical conditions that hello i seem i don't have much time left so and i didn't get a chance to talk about the second issue which came up from the government's arguments so i was like the court had any questions to me about the second issue raised in the br going all right in that case i'll just summarize and say that i think that that the probation officer has delhi has been delegated certain responsibilities to carry out the drug testing provisions but which you can't do that you can't rewrite provisions well you can ask him to submit a non flush sample so if you can get a valid test but if he gets stuck call invalid sample that does not mean that you can rewrite condition to say he's no longer participating in drug testing because of that that's redone by the district court all right thank you thank you for your argument this matter