father met one of the central issues in the case was mr gonzales marshalls intent because it's testimony his defense was that he didn't know that the material witnesses in his car were undocumented and that he wasn't a classic case of impeachment because the government never asked mr gonzalez marshall about that particular incident on cross examination the government as it was i don't the government doesn't have to well in this particular case this this contradict the claim that he gets nervous when the police are here though the the claim that he gets nervous about police being around related to intent his intent for for running away and intent is one of the permissible for all four phobia so i do think that this is the kind of case that that does go to character does go to basically what he's like as a person how he reacts in a particular situation it was the government who   but they're the ones that really on cross examination got him to say more specific things under direct examination he said that he was afraid of police given given its notice the district court held that that one wasn't entitled to notice until the evidence actually went in to the case even where the government was fully familiar with the theory of defense and so our position wasn't that the government could have asked mr gonzales myself questions about this particular incident with this particular police officer but they were very careful not to the structure of their cross examination to get him to answer questions about this and to get  controlling intervening authority that would have told it wasn't substantially different evidence but there was a decision that the judge thought was clearly erroneous and that the enforcement of it would create a manifest injustice in the court explain very carefully that on reconsideration of the evidence if the instruction didn't fit but this report also said well that's it that's an argument that can be made and he permitted the district are permitted on defense counsel to argue in closing argument and so obviously if the district court believes that there was insufficient evidence to give that instruction then it should have permitted the defense attorney to argue it i thought the argument by allowing him to argue that you know you permit argument about lots of different things that doesn't mean you give an instruction or ago but the question is whether it was clearly erroneous and how much of what you're really attacking is the fact that the judge made a factual determination that the treatment of this particular witness was not did not constitute special treatment justifying the giving of that instruction and therefore what i think you're attacking is that judge is factual that actual determination well but  both that judge allowed that defense attorney to argue no closing argument under those circumstances i don't believe that it could have been clearly erroneous because otherwise he would have precluded defense counsel from making i guess you forget that let's talk about what was qualify for that kind of unfair for the material witness clearly had an incentive to testify in the way that the government wanted him to testify he testified that he had been prosecuted that his brother wasn't being prosecuted and that he hoped to at some point be able to enter the country legally no quid pro quo there was no contract there was no agreement and that's what the court identified as being the the problem with the instruction that that instruction flows from an agreement truck is telling you that the judge concluded that you need him agreement for this kind of an instruction and the question is is that a correct it's is the trial judge is free to change a ruling ok let's get back to that one a little later let's assume for the first question the law the case does apply and the question is was the judge's ruling the first and clearly in our briefs which only give the instruction when there's like a plea agreement or cooperate in codefendant someone's being paid as a professional informant i'm not aware of any case under these circumstances where the special into an instruction has been do we know whether the government sent a letter on behalf of this witness after the trial was over to some form of homeland security or in the gratian to be included in the person's file should he make an application to return i believe i can answer that with a no but i can't be one hundred percent i move toward this case case comes back up to another panel that second panel is not going to read this is that issue unless the law the case exceptions are met which is you know when offense and justice change a circumstance where that kind of thing i th maintain consistency during the course of the lawsuit implicit that is that at some point a ruling becomes so important to how the parties are conducting a lawsuit it's unfair to change horses in midstream neither of those neither of those factors allowed the defendant to argue all she wanted to are he wanted to argue about bias and prejudice and and so forth there's absolutely no reason to apply the law of the case here and the change of circumstances was to just look at the cases and i think i was wrong this is not the kind of  case to support the giving instruction the special situation is there a way to reconcile smith in alexander the way i was trying to reconcile was that is there was a change from one just to another the litigation strategy had been formulated by the first judge motion to reconsider and it was granted and then i think implicates the second part of the the reason behind the lobby cases and it's some point the trial judge's ruling has become so intertwined in the kind of litigation it's just not fair to change horses contact there was no evidence of character to prove motive opportunity plan anything like that what there was was impeachment by contradiction because studio and beverly from the second circuit clearly had this out totally appropriate it's not for four it's what what they can means is if you have any extrinsic act that you want to use in any way at this trial you have to give notice that's absolutely in violation of the prior precedence of this court i think mr order one was the four point nine that that and judge didn't give the jury instruction for plan of the second trial and the that the police officer testified in the second trial and so i do think that under those circumstances there was