this but your client knew what his job was and every time previously it was generic information this time it's ended on a been waived mr brady proposed jury instructions to this court and submitted them a couple of weeks before trial in which the new portion of noon formulation was included it was true as he pointed out in his reply brief that the or should have known language was written as to mr boone rules knowledge of the birth of his obligations not mr brace that is true however i think that the only way to rationally or stand what happened here was that he a case that this court decided it might be made for figaro it's thirty four f third thirty three in which among the factors that the court looked at to determine waiver was the fact in that case it was about whether a photo array was admissible or not in the closing argument the defendant had referred and invited the jury to look at that photo array in order to assess the credibility of one of the key witnesses and the court for circuit in that case said that in fighting the not had held but had noted at least in criminal cases that should have known was the proper instruction or at least was an instruction that was given in those cases russian is further it's plain now on appeal is stronger than this that is true in the state of the law i think it is not clear obvious in terms of the holding it in you're seeing a case in which the supreme court decided that you assess the clarity of the error at the time of appeal specifically talked different analysis then be clear or obvious wrong the second prong there's a reason why those i think problems are separate there's there's and then there is whether that ever was clear obvious the kind of jurisprudence around the clarity of an error of this kind in plainer analysis if if you look at including the benjamin decision that so didn't reply brief by the by mr bray that's where there's been a sea change like for example in the benjamin case the supreme court had ruled th beyond a reasonable doubt to the jury and now it's where you see a lot of these still not following you that is the question is whether it is plain today as a result of intervening supreme court cases for example said it was not holding and so therefore it's not it doesn't it me sort of reinforce what certainly what this court said and failed it was like clear but in terms of what it was clear obvious we just don't there it's it's clear obvious now this isn't this isn't a gotcha doctrine it's it's one of the laws clear obvious now at the time of this appeal right and correct or i guess what i what i guess what i would like to the the the standard that he cites in his brief in which he articulate it again today about whether there is a rash of evidence could rationally be to a contrary finding and citing cases which talk about uncontroverted evidence or overwhelming evidence be required in order to find that there wasn't prejudice that relates to a different set of cases where the element was entirely omitted  the case and that's a very different thing this court has held repeatedly that has the burden higher than when it comes to errors of instruction and that's what this is what's being alleged here and able to prove given the only evidence we submit there is on this on this with respect to this issue that mr brady knew for all the reasons that joe stall noted with respect to what happened that night in the bar in the passing of the napkin and that sort conclude fairly and reasonably that what was debris was saying was i knew something we weren't supposed to do i know they were probably you now who is your job but don't research i already came up with a cover story if the