United States v. Millard Robert Beasley, Defendnat-Appellant

McCREE, Circuit Judge (concurring in part and dissenting in part).

I believe that the majority opinion has correctly resolved all but the final issue it discusses. However, in discussing appellant’s second contention, I would not characterize the missing laboratory technician’s function as involving the performance of a test. If he had performed a test the issues of which were relevant, it would have been error not to have required him to testify because the test results would constitute an assertion,, verbal or otherwise, about a matter material in the litigation and evidence thereof would be…