the last case on for argument today is united states versus  the morning your honour's may please the court my name is john casey i'm here on behalf of appellant marcel perry detective reagan was the sole witness it's reversed in a day morning able to prove it so that it should be for there should the finding should be that there was no violation and there would be a new hearing i understand that the government i believe their position is if it's based upon the fact that he allowed the hearsay and then an independent then they would argue i believe that it goes back for a hearing  one i would submit that the government had their their one shot and it should just be a finding that they didn't prove criminal possession of marijuana in the th degree is a violation and there should not be every hearing can really only get half of the proof or at least testified to half of the proof that we say would be necessary for a finding he was the arresting officer he ran into the building cuffed mr  there's a disconnect between him and the marijuana that was allegedly found there was no photograph in the record of the packaging or the marijuana itself and there was no reason given why another one of these other officers could not come to close the circle and present that proof so we determined it was all right for george sharpe to have wasn't correct what what's missing here it still wouldn't tell us that it was marijuana it still wouldn't tell us no testimony about being present during a field test i don't believe so but if the field the lower standard of preponderance of the evidence of a field test of itself again might prove marijuana but then there's there's also the weight element  and it's from my reading of the record that he can't we can't make the leap that he observed the way he observed that we also saw that the field testing was done it it seems that it was information that was conveyed to him which would make sense if he arrested and he even says in his testimony that he said get that out of the can because he had mr perry in handcuffs and then even the report it says refers to detective   ach weighing in field testing it whether detective reagan could have said that at the hearing and he just if he didn't on the records i would say that the proof was lacking in that regard  it would be it would not be hearsay if detective regan saw what the scale registered and saw the the result of the field test i would agree with that and i think he said that he was just it was he was present at the time which could mean a lot of things he did at and he said he didn't participate in doing it it was it was a laundromat i mean he wasn't doing his laundry he was obviously attending to the to the to the you were asked that he was present and he was present doing what officer contract was also our reading my reading the record doesn't give it doesn't give him that much of a benefit of the doubt your own right but was it wrong for drug czar to have interpreted inferred from the testimony was not a proper inference based upon both the direct and the cross examination and it wasn't even really clear he didn't really say where the field testing occurred was it back at the station was it right there in the the laundromat where he made the arrest so it was not sufficiently established to make that inference no it didn't happen in this case but i'm just curious since we're all headed nationally headed down the path of seeing more and more marijuana virtually every place you turn around don't you think we're getting to the point where even the citizens on the street can say you know walks like a duck talks like a duck smells like don't to me and i can tell you it's marijuana if the if if this violation was just marijuana without a wheat requirement we might be a different question but here there was that the two ounces and without the physical evidence and without an officer who actually picked it up and did the testing i would agree would have a different story if it was just he was just charged with the marijuana it might be closer to dismissed which we don't know why but again there was nothing underlying it the say that this evidence was tested in a lab to determine that it was marijuana your honor so  the court in our brief we have includes the following testimony from detective reagan basketball players i never got it is this quote in it and i have in quotes in it it's from the testimony or the appendix page thirty five dollars it's in our brief it pay jury and this is detective riggins testimony it was two plastic sandwich bags with vegetation substance which we field tested and which we later field tested in weighed with a positive result for marijuana so it was a little bit more than just a physical description of what was se simultaneously field testing this thing was obviously done by one of them and this witness is not saying which one did it and it seems to be the other one and us that that we can and self observed a positive result of this task well he went so far as to say it was the other detective who actually conduct his puncture and that he was physically present when that occurred and i think it was is a fair inference from that has the money that he wasn't physically present with his back to her and to the events that were occurred release that permissible inference and  is this is this hearsay issue mind or critical in a proceeding that involves a violation of supervised release will it's problematical speak maybe personally is problematic because the rule sets out a procedure to be followed and i in my experience it is to often not that said had the balancing been done in this case if this was hearsay because it would not have been in my opinion and abuse of discretion to allow  you're saying that my adversary is correct because the testimony was hearsay and the district court failed to engage in the proper bounds i believe the remedy is to remain and not to have dismissed the petition  try again because i think evidentiary errors routinely increase in the criminal context in the trial context and that are found to have occurred do not result in a reversal because there is sufficient evidence here for the district court to have concluded that this violation occurred but that that evidence maybe should have been evaluated differently there should be no finding by this court in my opinion respectfully that the evidence was insufficient perhaps that should result if it's supposes all hears it that would be but my point is if you look at reagan's testimony there is no question but that the events he describes are sufficient to establish a violation of the statute in issue the only question is was that evidence wrongly admitted like perhaps in a criminal trial evidence should have been suppressed but wasn't so the evidence comes in it was necessary for the verdict and i think that's that's all the problem with that analogy mr silver it seems to me is if we're in on the suppression issue you turn around and say that evidence shouldn't have command that we look at the record absent or double jeopardy issue here i tried to determine if there is a double jeopardy issue here for a different reason and i'm going to go a little far field if you don't mind please i don't think this was charged properly is a supervised release violation because we have ensnared ourselves in the intricacies of new york state law simple possession of marijuana i someone like me which  this fellow dash into the laundromat stuff apostle into the garbage bin covered over and then have his partner pull it out and see that it is to all aspects now on right now there was you know i would that be enough and i think what you're arguing with that weighing in and without field testing and we charged it differently i believe your question yes yes yes simple possession mr perry has a prior drug so he can what's different now the difference now is that we had to prove the way in which comes in through mr detective well i would submit you're on of the detective regan saw the evidence being placed in the garbage him was there to see the other detective take it from the garbage can and was there to see the other detective field tested i hurts i think that's a fair interpretation of the evidence in mr casey's reply brief he raises for the very st you could see somebody take a test and not if you saw something to a test that it doesn't mean the past so you can see things field tested but that doesn't mean you know what the result is unless you thought the the the the meter or the change of color or what ever t raises for the st time in his reply brief the element of the state offense which was not discussed below or in his opening brief that the defendant has to know the quantity that's involve so i would ask the court to deem that waiver to the to the extent the court will consider them i think it's reasonable to say that the district court could find my preponderance of the evidence based on the defendant's actions and even though under state law furtive actions may not be admissible to show knowledge i think a district court in for a judge can look at those facts  obviously the defendant handled the package which is a permissible consideration under state law but to the extent we might be bound by those considerations one of the arguments below was that the evidence is insufficient because my client never failed a drug test which from the precut prosecutorial perspective would lead one to the conclusion that he wasn't using this marijuana he was selling the marijuana we know that he was arrested arrested they said on the two violations in the probation petition for sales of marijuana and my point being that one who sells marijuana would know what the quantity is because he's selling it for a particular amount of money  mr perry has two prior arrests for lawful possession of marijuana he has a prior conviction for possession of controlled substances a prior conviction for sale of controlled substances and he was i think the problem with saying that this would be harmless error is that the hearsay that came in through the police report in connection with the testimony that was given and the fact that he says we then admits on cross that he did not weigh it that he did not feel tested but he was merely present when it was we it's hopelessly confused it's impossible to say whether it did affect not only the witness's testimony about what he gave about what happened but also whether the same finding would have been made without the hearsay police report and i do believe judge sharp probably felt that well that they could do it even if they didn't really prove it they could and why why wasn't an inference available to the fact finder that one person says we feel tested it and it was more along that that person observed the test and in sufficient way to ascertain that the result was positive why why is the finder of fact have to assume that that's based on what someone else said when officer reagan was right there in the laundromat well i think that the reason is because here it's not clear that detective reagan was saying that he was i am not you know judge i was looking at the i'm a member of the panel in the northern district and here i was looking at how do you apply for that for that i was thinking of doing that thank you for your service on the northern district title and put in an application the next time there appeal and mr silver i want to say i have over the years appreciated your offices but in particular your candor with the court in these discussions that we've had over time so it's always a pleasure having you guys from upstate i