we have challenged the government to point to anywhere in the record where a witness was asked is the methodology used by ed heller our self described crap in collecting samples in this case did anyone ask the question are the methods that he used reliable valid anything that would comply with rule seven or to the government has been unable to do that and that is the reason that you don't have any findings by the court on your national question which must be asked under direct probably even under frye and definitely under rule seventy two and that years are the methods that were used in correcting the staple reliable the court did not answer that question because he couldn't because there is nothing in this record here's what happened the first day of testimony mr hall al got on the stand and the first thing that the judge question we recessed for the dewey he came back he came back with two pages for me and you know in his work book from cal state university and he didn't even reference anything in either one of those documents that would permit anybody to find that what he was doing the reason that i brought exhibit eighty was told that you could see what he was talking about you have a smaller version in front of you this i checked this out from the evidence for it at the court silver state plating and that there for the jury could conclude that mr merengue and knew that those just charges were occurring because at that point in time mr gold was no longer in the facility they were specifically not only did they charge it that way on specific dates because they had to but they also argue that that's what their testimony shouts so they needed to show that those that the results of the way i had were applicable to those particular time period problem is that that's not how they announced the start so you must start with whether or not the protocol that was used was reliable because i have nothing to compare it to but can i ask a question about that we've had a lot of difficulties with albert to put it mildly and what you're saying is that the way that the samples were taken have to be demonstrated to have been scientifically acceptable practices i guess  provide the basis for exclusion of the opinion only if that era negates the basis for the reliability of the principle itself so what you've learned from that is that you have to start with a reliable methodology for sampling even the government's exhibits say repeatedly that the laboratory in a simpler have to work in conjunction with the stamping results are only as good as the technique what you wish by the laboratory in the simpler together in this there the government is the proponent of the evidence never put on any of the evidence which would allow you to do that and then instead what the court did is to start the test was whether or not the findings were consistent with the product of less than rigorous sampling protocol that's placing the burden on me and the problem is your honour's is that if this goes to the jury what you and i cross examine in front of the jury what are they comparing it against as opposed to  complete the factors that could fill the factors under seven o two they needed to do that because let me tell you the danger of this testimony this is me and will be going to prison based upon his testimony and what happened was he took construction able to even talk with mr noel before he did it to see whether or not what he was doing was was scientifically valid or the methodology was such that it could create it could pick up reliable samples because they fail to do that there's a real danger in this unfortunately institute they couldn't do that the reason they couldn't do that is because mr allow in the clark county sanitation district never talk to anybody including the laboratory before they employed a set of methods that they never used not there were standards in place and they didn't talk about think they didn't talk about the methodology used both in the lab and in picking up the samples and that's the case with the government relies on you can't do the analysis because they were trying to go backwards after it was clear that hillel was applying no standards whatsoever they were trying to go backwards and they couldn't even get their own people to allocate what he did in a case in which the jury found my client not guilty every single charge count in this indictment and we are now down to the lesser included negligent charges based primarily admittedly on on the laboratory is they are even making an argument that this was non prejudicial they couldn't because they know it's scientific testimony is what is going to stand my client if you know with this case is not reversed and all i'm suggesting to you in challenge the representatives of the jury saying it was trying to think of analogy seems like the reliability of a jury sample and what happened was this expert comes into court and says well i've never done this before it isn't a regular practice of ours i didn't talk to anybody but i just sort of looked around and took some numbers which is what happened here he didn't he didn't you were not even able to show that he followed the procedures for that because when the system got after methodology of standpoint goes to the weight ok as long as the methodology is reliable to begin with and i find that on page eleven fifty four in alleged here in the application of a reliable methodology however even if the court chooses to address this issue the defendant's argument has been correct dobber acquires a district court and it function to determine whether expert testimony meets the threshold level of relevance separate d'albert hearing at the defense request and allowed two additional witnesses for the government to testify and heard also from the defendant's witness douglas adams whom it found it did not later present to the jury so here's the record at the end of necessarily making a determination as to the reliability of the last am playing so the procedural argument that the defendant is making here is that is that the district court didn't follow the proper procedures under jobber for determining whether the sampling was was reliable but again as kumo tires states district court enjoys bronze discretion and and how it determines relative reliability under d'albert this court has repeatedly rejected efforts to limit dabur and found the issue of sampling protocols to be significant it gathered extensive information on what he did and did not do with trial testimony and at a separate dauber hearing and ultimately ruled that whole sampling was sufficiently relevant and reliable to present that person to present the information concerning the samples to the jury salver requires nothing more the other argument that the defendant makes concerning the reliability of followed a consistent logical series of steps for collecting the samples and this case we discussed the steps of pages eleven and twenty six of our brief with the steps are pretty logical what you need is enough flow so you can collect the water but there seems to be at least some possibility of danger that if you're back in the water that you will pick things up off the bottom that have been standing there that are not coming with the new flow well your honor that's certainly true and this was an these violations are not borderline violations there are significant violations that would not be impacted by trace consuming action or other missteps minor there are i mean there are violations involving metal concentrations or the pounding down on the plastic manhole steps or not introduced any significant contamination into the samples they would introduce if anything contamination in the parts per billion range the  the testimony with respect to the sample was critical to say if it was erroneous lee admitted it was prejudicial you agree with that i absolutely agree that if it was a rather silly erroneous lee admitted it was prejudicial because the defendant's conviction was based upon the samples that were collected and stored story you know if this was if the testimony with respect to the sample was improperly admitted that that's yep that's correct but i would remind the court that our samples moreover the defendant today oral argument suggests that in fact did not base them has the procedures that he followed upon any source this is absolutely incorrect as we discussed at least twenty five of all relied upon years of experience taking samples training classes manuals and a sample he had used hundreds of times to collect the samples in this case government witness simpson the defendant s which government witness since and again he was regional technical coordinator for the e p a s national inforce an investigation center said that yes i think the samples collected from that manhole were representative of what was in the sewer during those times that he h the sampling when asked the question and any potential cross contamination that might have occurred you think that would be of a significant concentration significant enough to affect the result he said no i don't think so than absence of controlling standards goes to the weight to be given scientific testimony not its admissibility here the defendant has not demonstrated that there was an absence of controlling standards in fact there was extensive point to a mere collection a series of steps and call that a methodology that there is no requirement and albert or any other case that in fact a methodology must be standardized or have a formal name  procedures in this case but method one hundred sixty nine as we discuss it page twenty seven through thirty two of our brief is not is simply not a clickable to this case because it goes to testing for trace metal district courts your heard here and what the jury heard was extensive testimony on what procedures followed and those that he did not follow and the district court again i would emphasize made a reasonable are you firstly argues that the guidelines must explicitly distinguish between negligent and knowing conduct but this isn't facts what the guidelines do the guidelines provide for an optional downward departure from negligence at section two q one point two there's also the catch all provision at section five point zero which allows a district court to consider factors that feels aren't adequately accounted for in the guidelines including mens rea or these provisions reflects congressional intent which is to actually says that that's not what he does when he's doing unfortunate sampling he doesn't do it the way mr hopewell dies any he's never asked the question of reliability and the court never rules on the question of reliability i'm not sure why counsel is suggesting that we raise consider what it is like when we are searching in order to be able to challenge these methods when there is simply no scientific basis for what mr hole out there isa we could have simply gone to the lab and said what kristi too should i use what the government is arguing here and what is very dangerous and if this holding were to be true you could get any testimony and including the testimony that was excluded in government all the expert would have to do i step by step procedure and these are the steps that i follow that's what the government's argument is and that's what the court held as long as you have a procedure regardless of whether or not it's reliable you can go forward with scientific testimony that's not what will  the sampling methodology would it be for us to remain and who are the district judge to decide the question using the proper burden of proof court were to review this record i think if the court actually applied to pro create burden i think that we would have to prevail so i think we would have to prevail because there simply was no testimony in this record and you'd have to prev meaning we should remember that determination all we can do here right now i think what you should do is what happened in shelley i don't think you should read and i think you should look at the record that the government made in an appropriate proceeding if this is not a player review that had the