with whom PREGERSON, REINHARDT, and WARD LAW, Circuit Judges, join, dissenting:
A conceded street user of drugs is made into a distributor through the testimony of two witnesses, both facing mandatory prison terms. There is nothing particularly new about former colleagues “singing for their supper” — the problem here is that the jury did not know of the full extent of the witnesses’ motivation and they were actively misled about what they did know. The majority properly concludes that what happened violated the defendants’ Sixth Amendment confrontation rights, but ultimately concludes that this constitutional violation was harmless error. Thus, while I concur in the majority opinion’s analysis of the standard of review (Section II) and agree with its conclusion that there was a Confrontation Clause violation with respect to the restrictions on cross-examining Rick Lamere (Section III.A.), I respectfully dissent from the majority’s conclusion that the restrictions on the cross-examination of Joy Poitra did not violate the Confrontation Clause.
The majority concludes that the jury was sufficiently apprised of Poitra’s motivation to lie because defense counsel asked her if she was going to prison for a minimum of five years and she responded “yes.” A review of the transcript calls into question whether the jury actually even heard or heeded Poitra’s affirmative answer, as the government conceded at oral argument, because of the court’s immediate intervention.1 But even if the jury heard Poitra answer “yes,” it was to the question of whether she faced a “minimum” of jail time — not mandatory jail time — of five years, which only the government, and not the judge, could cause to be reduced.
In any event, any supposed benefit from this admission was immediately undercut by the court’s sua sponte interruption:
THE COURT: Well, just a minute counsel. You know that the sentencing of defendants in this court is the responsibility of the court. And I will make the decision about the appropriate sentence at the appropriate time. That’s not a proper subject of cross-examination.
When defense counsel tried to at least explore Poitra’s own understanding of the penalty she was facing — clearly relevant to her motivation to lie, regardless of the sentence the court actually imposed — the government objected and the court sustained the objection. Moreover, the court further (and, in light of the mandatory mínimums involved in this case, incorrectly) admonished the jury:
THE COURT: And ladies and gentleman, that is because in this court, all matters related to sentencing are the decision of the court and the court only. And that’s the way the law is set up and that’s the way it works in this court.
Because of the court’s statements, counsel was not effectively allowed to convey the fact that Poitra was facing a mandatory minimum sentence absent a motion by the government. Although the jurors may have been aware of Poitra’s general incentives to lie, they were not fully aware of the magnitude of those incentives, which could have significantly affected their assessment of her testimony. Indeed, the *1114little testimony about sentencing that was allowed — Poitra’s testimony about five years — may have actually compounded the court’s error in not allowing any cross-examination of Lamere on this subject, although Lamere was facing a mandatory minimum sentence of life without parole. Having heard Poitra mention five years, and being barred from learning anything about Lamere’s exposure, a rational juror may well have thought that Lamere only faced five years.
Because of these concerns, I also cannot agree with the majority’s conclusion regarding harmless error (Section III.B.). In assessing the harmlessness of the Confrontation Clause error, we must consider the trial as a whole, including the importance of the improperly-restricted witnesses and the strength of the other evidence presented by the government. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431.
Connie Riggs testified that she had purchased a small amount of methamphetamine from Larson in a controlled buy, but that even in that sale Larson did not personally have the drugs and had to go elsewhere to obtain %eth of an ounce for Riggs. On a second attempted purchase by Riggs, Larson did not have any drugs and said she could not obtain any for Riggs. Jason Gilstrap testified that in two controlled buys he had directly purchased a small amount of methamphetamine (also about yieth of an ounce) from Laverdure.
These small sales, however, do not link Larson or Laverdure to a much larger conspiracy to distribute drugs with Poitra and Lamere, which was the sole charge contained in the indictment. Poitra and Lamere were critical witnesses to establish the charged conspiracy, and the jury was not sufficiently apprised of their incentive to curry favor with the government. Thus, I cannot say that the Confrontation Clause error with respect to these crucial witnesses was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. 1431. I would therefore reverse the convictions of Larson and Laverdure.
. The Assistant United States Attorney who also prosecuted Larson and Laverdure at trial argued the appeal. At oral argument before the en banc court, he stated that, "With respect to Ms. Poitra, I didn't have a chance to object before the district court actually did that sua sponte.”