testimony at the trial in clear violation of quo for versus washington had a substantial and injurious effect upon the jury's determination of guilt and the question already been resolved mr mays or there was they were the original ruling did find that the evidence hit was harmless however there was not any focus on the criminal enterprise but simply a general a statement about what the other revenants was and i think in light of the impact of how the court must must assess the testimony not under quote for versus how it was assessed under ohio versus roberts the court should revisit this issue in light of the watershed decision that's washington versus crawford was and in light of the fact that a panel of this circuit has held that the sitting to be retroactive but we previously said in that decision we did we did address your confrontation clause question was it was raised in that in that question wasn't it it was but what what what was decided and what was the basis of the court's decision in the court's affirm and here was that there was a firmly established exception to the hearsay rule under ohio versus roberts which admitted harmless here or there and that we would argue that it is the violation is a per se violation but we also argue what you think you're talking about structural error and some of anytime we have any  language is any discussion about harmless error and we are from that decision but we have previously held previously but in that there is a harmless error rule that attaches to the confrontation clause  after washington versus crawford it's not binding but if it is a finding by this court right that if it was error then it was harmless that's right and that's what we have here if it's a fair it's harmless unless you as you say it's a structural error and and you cannot find harm is there well i think this court has the jurisdiction to review the harmless error are now was just in light of what happened in crawford that's uphill battle but you know i think you've got some room to run i think i just mix my metaphors but i think you i hope you understood what i what i mean but if if that's the case then you've got to go i think you have to come up with something more than crawford itself because our that there was that there was a quote that there was a confrontation clause which crawford simply would confirm but our panel the prior panel that said it's harmless error but you don't have any change in the law since crawford that would affect that analysis to you know i don't you that if the court looks at the litany of questions that maria reyes was re ask they were virtually all went to the question of whether mr ramos was the organizer supervisor or manager which of course is are and elements of a continuing criminal enterprise and what one of the things which distinguishes the c c from a general conspiracy each of the questions that she was asked shows that mr ramos had control and still ramos was the person attending the source of her one on a regular basis and outside of this kind of testimony that maria gave th of just a movie that would go to the elements of organizer supervisor or manager there was some evidence of mr ramos his participation in a in drug distribution whether it arose to the point of being beyond a reasonable doubt with regard to the single ongoing conspiracy charge that was a question that we argued to the jury and that the prosecution says there's more than ample evidence on this right he did that that was actually brought up previously but i think if the yes but i think your honor if you look at what the government cites to other evidence we responded we tried to respond to each of those items in our reply brief and i think the government has overstated what that evidence it was and that really when you look at it pretty and i will reserve whatever's left from the bottle unless there's any other questions thank you our claim and i believe from the court's questions the court endorses this that this panel is bound by the earlier decision in this matter in that opinion judges are right hard rhymer ruled on the the court and direct appeal found that her testimony was insignificant when compared with the government's entire case against the ramos trial defendants and noted that the defense and found that the defendants face testimony from informants undercover agents evidence of telephone activity recorded telephone calls runners runner cars and runner apartments quoting briefly from the opinion in view of this overwhelming evidence the small number of statements made by reyes that may not have been primarily inculpatory did not affect the ramos trial defendants substantial rights and of quote and also as the court's already no the court below the court on direct appeal found that any error was harmless beyond reasonable doubt under chapman leave for those reasons the courts are bound by the earlier decision in addition since this claim was raised on direct appeal our position is that terminations retroactivity which is one of the preconditions for the application of paragraph six of division three is that terminations should be made by the supreme court not by any other court we realize that there are other opinions holding that the decision may be made by any lower court and the reason for our position is expressed most clearly in united states versus died in the dissenting opinion filed by justice stevens and what he noted there was that every court that has ruled that the retroactively decision may be made by a lower court has done so based on the language contained and twenty eight u s c section twenty two forty four b two a that contains the explicit requirement that a new rule quote made retroactive by the supreme court and then the proponents of that view argue that since that same language is not included in paragraph six of division three it must events in the tent of congress to allow lower courts to make the decision with respect the application of paragraph six subdivision three justice stevens analyzes this and concludes this is really a grammatical issue and if you note with respect to twenty two forty four b to a there's only one verb that the presidential phrase quote by the supreme court can modify whereas in the subdivision before this court there are two verbs newly recognized and made retroactive it's your position that the petitioner must wait until the supreme court has held it to be retroactive and then he has a year within which to file i believe that two answers your honor i believe that bush does have to wait till the supreme court has made the right retroactive however dodd holds that that period of time runs from the date that the instant decision articulated the new right not the date on which the decision was made for the case to be retroactive so you're telling that one year from the date crawford results could be harsh but that that the court in da court opinion was what the congress intended and if harsh results were not the intention that congress should change the law that's what they said in the majority opinion and you are of  do terminations may be made by lower courts have done so based on the example i gave of the language of twenty two before a story under  twenty two forty four b to a let me move if i may to the issues with respect to harmless error counsel of course is correct that proffer does not address the issue of harmless error however there is no  standard has been repealed or revised or in any way altered and we argue that the harmless error in fact is the standard cases both before crawford and after crawford have applied the harmless error standard there's no indication the crawford made any alteration in that standard in addition there are many cases in which the results of a confrontation error are arguably far more serious and in those cases the harm applied as well those were addressed at our brief of thirty one proffer doesn't suggest that there's any change in the confrontation clause issue the court should apply it with respect to the evidence let me quickly point out that both the ramos this conduct as the head of the conspiracy as well as all the coconspirators conduct towards him indicate that he was in fact the chief the head the person that managed and ran the entire organization a number of examples when even a longtime purchaser wanted to buy more heroin that he was normally just into buying it was only jesse that is to say ramos that could make the decision when  another buyer wanted to acquire a bonus of heroin because of the extra quantities he was buying only ramos could make that decision when the first twelve gram purchase was made by informant munda this is it s e r one fourteen  jesse the defendant was the one that had to bring the heroin himself because he didn't trust his own runners when there was it's his decision that an undercover agent was to be introduced in the form of national commission to do that the  he was told that he would have to make another by and that was decision made by the defendant the defendant also asked one of the informants how many people was he going to introduce he wanted to know the background of the people and he wanted to know if they were reliable which in his or did mean if they were good people meant were they law enforcement or not when one of the informants wanted to buy the heroin quickly for a customer it was the defendant that said come to my house and daly city and i'll provide it for you and one of the informants reported that when he was discussing the issue with the defendant's wife who as the only bilingual speaker both english and spanish was the one that translated conversations back and forth  told them him the informant that the only reason the primary reason they would never get busted was because of jesse's leadership ability it was also the defendant the dealt with short weighted packages the delays in the arrival of runners the issue regarding the quality of heroin the via locations and when they had to be changed he was the one that offered a front to one of the informants he was the one that provided a special occasion to meet with the informant when he needed care when quickly and it was also the defendant who ther charges for which he was convicted was predicated on a number of factors completely independent maria raised this testimony which were not refuted by ramos here primarily the ten heroin buys and