the morning honors may please the court robert foster supervising deputy attorney general for responding i want to thank the court for allowing us to file the supplemental materials i want to apologize to the court for the material mistakes the facts and the fellas opening brief i didn't them when this case was assigned to me we discovered them and within three days of that we filed a request to clarify the record goes mistake should not have happened i apologize to the court as to the issues we face today it is our position that the district the magistrate judge and the district judge applied it they make the mistake of confusing they have to find an unreasonable application they don't do that the analysis is simply taking the state court analysis evaluating it and saying of the california court entitle the difference i don't think it matters whether it's the trial court decision or the of the intermediate appellate court decision you still have to use the difference anal i don't know what more you would need from them are you talking about the rationale under the theory it was working on if that's what you're talking about sometimes we have that sometimes we don't but as this court did in a case called franklin ricky johnson it doesn't matter what the state rationale was and you have to look at the ultimate decision to admit the evidence and the question is was at the station correct even if the underlying theory was incorrect and to ninety fifth or twelve twenty three at twelve thirty three the question is was this evidence properly admitted is it entitle to deference and i think that's the problem with the analysis by the district court is it never when it gets acknowledged deference but it so the statements the additional statements in that case did that crime has an element of conspiracy with innit and as a result the court said well the statements that the that the prosecution is trying to get in had an element of conspiracy in it and it didn't therefore it wasn't specifically disturbing to the interest of the declarant but that's not true here because in this case there was a charge of manufacturing methamphetamine every single statement you go through that might seem is made was a declaration against people interest he said i'm going to let him use my garage to make the math of that of i'm going to watch how they do it she comes and says i just helped him get the stuff to make the methamphetamine every single one the court and of course there's the other question about whether the statements here in furtherance for court has any indication from which you could let me go dressed first i'd like to know whether the magistrate judge used the wrong standard on page twenty five of the report recommendation  reverse it and send it back reconsideration back to the district court yes well i guess that's that's certainly a possible alternative but i think that you would need to be the wrong alternative choice it's the dischord believes that under the seen or heard that it's well i think that we have to take into account the relationship between charlene and peggy evans in assessing that question and everybody pretty much has agreed that their relationship was they were close the fact that he's making that arrangement there are the coconspirators are making that arrangement furthers the conspirators the but that's seems to be just not the question the court of appeal relied on that for his decision but the real question was how did shirley and telling as decorations against people in person not as a matter of california law but just in general wouldn't wouldn't that solve the confrontation problem which is what we have to worry about well i think that that's putting the cart before the horse  frankly i think that first it has to be shown that they come with an exception to the hearsay rule under california law because otherwise they won't come into evidence if we do go back to what the trial court said about the statements it's our position that what the trial court said about those statements was unreasonable because in the context of things it's clear that there was it's just a conversation it's a  a problem he was often thinks about it for a while makes up his mind if a woman has a problem she wants to do is to talk to somebody about it and they just talk and talk and talk and this with these two women we're doing here and i don't think that sterling expected peggy solve any of the problems that she was bringing up or to participate in any of the deals that she was describing she was just talking to her girlfriend to girlfriend and that's what's going on here it's not a question of erling trying to induce to come and help in the cook or anything like that and so it's unreasonable for the court of appeal to conclude that that kind of a narrative furthers the conspiracy there's really no evidence in the record that at all that shirley expected peggy to come and help in this book you know i mean the attorney general has has made much of that statement where he says we were cleaning the house and charlene was in a hurry and she wanted to hurry up and get out of there and she said it was because she had to go meet day the question is is it reasonable in light of the whole record to find that that's a statement in furtherance and what you see if you look at the whole record is where they go after they finish cleaning the house charlene says let's go to the thrift store and so they go necessary prerequisite to making the methamphetamine as the number two she says we've done i mean it seems to me that she's explained her participation in it is intertwined of the conspiracy is the first statement is what exactly as we call it as we cited to five seventy nine to five eighty two of the record your ancestor what it says that does she ask if ever you want to go with them and she did she stayed in the car while they went into the store