are the st issue i'd like to discuss with the court is how the jury instructions were in adequate here the jury was not charged on an element of the offense count one charge of conspirac commit murder predicated on a violation of connecticut state conspiracy a law that state predicate requires proof of an overt act as an element of the offense now the government in response argues that there is no error because of because they found something that met the requirement so get well you may have a good argument of how is it anything but harmless in this case well i think that there was prejudicial impact here in this all reasonable doubt because the argument that one conviction on one count satisfies the elements of a separate count has some intuitive appeal but ultimately it gives the government a free pass on an element it lessens their burden and that is an important point and impactful on a close case like this one i think we should remember that i agree that excuse me i'm not sure i understand they would have had to have found the murder proved beyond a reasonable that and so to the extent that we are looking at prejudice i don't understand how you can argue that your client was prejudiced by the failure to say well on the conspiracy you have to prove an overt act when they're also charged on the murder you have to find the substantive cried and they say yes they find out you prejudice well i understand stand reasoning in the context of inconsistent verdicts in that context when defendants make the argument an acquittal on one count means they should have been treated in meeting should have been acquitted on another nearly identical count the supreme court has said you don't don't vent to a jury juries thought no i've been that way and i think we're sounding a bit like a broken record but if what you're saying is treated separately and the government needs to be put to its burden of proof on each count and i think that that analogy to inconsistent verdicts and supreme court years to prudence surrounding that is a good co integrity and chatter and how do you have that given the conviction and the murder well i i think it sort of circling back a little bit that the the government's evidence on count one was extraordinarily weak so weak that just your court judge granted the rule twenty nine motion now that was reversed on appeal but the point is that in close cases giving the government any advantage by not making a proven element on one i'm fair and runs counter to the th and th amendment requirement that the jury pass on all on all elements on each count and so we're engaging in a little guesswork saying well they found a murder on count six therefore they would have found those overt acts on count five that requires us to go into the jury's thought processes and decide well this is our best guess they would have found the same thing on kind prejudice in situations where the jury doesn't make up by where the evidence is overwhelming so to that extent where we're not guessing at all we have a jury verdict i don't know how you can see it i mean what you're arguing for suggests that there can be  and i guess i reconcile that argument by pointing back to the district court's granting him that rule twenty nine motion on count one it indicates that the evidence was extraordinarily weak on that count and had the government put in put to its full burden on that count by having those elements explained to the jury and require that the jury pass on those elements then it might have swung a different way  in close cases any error i think weighs on the side of finding it harmful especially when we're talking about an element of the offense i don't think it's a groundbreaking a proposition to suggest that it's important for a jury to pass on every single element on every single count and when you can just put your i think your argument your argument would be a very interesting and powerful one if the jury had the murder charge if they had not been able to find murder then you would have an interesting and strong argument that finding deals them yobbery one when they weren't charged they needed to find found what they had to be charged with too far and it's very hard i'm sorry but it's hard for us to to see where it's go well i certainly understand  the court's point and i think that count one was a close call for the jury understand they did not hang on to the murder count but i still go back to the basic proposition that in close cases when a jury instruction is missing an element d the government is getting a free pass it is being allowed to circumvent its burden of proof represented united states and in this matter given that the discussion was just about the jury charge i will jump i'll jump straight to that and specifically talk a little bit about the plan a error standard of review i believe your honour's had indicated there is there is an insurmountable difficulty with the defendant's argument specifically as it goes to the effecting of a substantial the whether it affected her his rights and so let's be clear about this the charge here you honor was by car murder and conspiracy in a car murder where are conspiracy to commit by conspiracy to kill commit murder where the underlying state predicate act was conspiracy to murder the murder itself was found there was a fact a conspiracy to commit murder that was found as well it is certainly true that the charge did not include an overt act and the government's view and i'm happy to talk about that was not required under nd circuit case law however that notwithstanding they found the object of the conspiracy was committed by finding that murder and so therefore even if the overt act had charge had to be included as your honour's just indicated in speaking to my colleague at the bar there's not going to be prejudice here that the that the defendant will be able to show with respect to the nd prong your honour's you know the  prong requires it to be a clear error a clear and obvious error here and what we have here is we have two cases the garik and diaz on one hand that have never been explicitly overruled although they have been subject  government's brief on page twenty four but they make clear that this court has never disavowed the broad language india has much less reversed its holding and that d s remains controlling authority and so your honor if you look at that language which is a fair and accurate representation of where this court's law is with respect to dia's and where it is with respect to the garc in the government's view there's no error there let alone clear or plain or obvious error that would warrant reversal here and so unless there are questions your honour's about the jury charge and i'm happy to turn to the th amendment issue at this point sierra and in any event was waived and i'll just spend a moment on the on the waiver argument here the defendant's argument your honor relies on miller which was decided in two thousand and twelve and montgomery which was decided in tw both of those decisions were prior to the original sentencing in this matter they were both decided to prior to the st appeal in this matter and they were decided prior to the nd sentencing in this matter as well and so the case law upon which the defendant relies was out there and available to be used now i understand in her my co counsels reply brief she raised the argument that you know developing standards are always developing and so therefore it can never be waived  honor there is there's a mechanism for which a defendant can pursue an intervening change in case law or or or a development along those lines and that would behave as a petition and so if down the road you know the supreme honor so that's certainly correct in with miller st miller was decided and then montgomery made it retroactively a pleasurable and your honor is correct to the extent that they did not make the decision retroactively a playable there would be significant limiting on the heaviest petition but i do think that sort of turns us directly to the merits of this case your honor which is the this court in sierra it was clear that the line has been drawn at eighteen there are consequences for defendants on either at on either side of that line and to be clear the material facts of sierra and material facts of this case are identical in both cases the defendants were older than eighteen in both cases the defendants were convicted of murder and face mandatory life sentence and in both cases there was an argument that was raised that miller applied to them because of scientific developments in brain science and this court in sierra knowledge that miller was a categorical rule acknowledge the difficulties of drawing  of eighteen but nonetheless said the line had been drawn and the challenge had to fail and so here too and your honor i just know in closing the district court decision in this matter upon which the defendant relied heavily  in the opening brief that was cruise that has since been and the district court there held contrary to sierra and a summary order cruz was vacated and remanded to the district court with instructions to reinstate the life decision i know i had asked the clerk of court to circulate the twenty eight j letter to to this panel earlier this week and so that further undercuts the contention that the defendant is here raising and so unless there are questions your honor for these reasons thank you i'm going to the government's last point i'm on the merits it's true since the filing of the creates the court has issued an opinion increase i believe judge chan and sat on that panel and i relied on those cases in my brief and they were not just cited in the defendant's favor and i just want to point out that the net effect of those decisions and sierra and crew makes youth and all of its hallmark serial event to the imposition of the harshest harshest prison sentence possible on our youngest adults and while no circuit court has yet extended miller state appellate courts i recently and she one thousand and nineteen and she one thousand twenty have a life sentences for useful offenders over eighteen years old because of factors like chronological age immaturity the failure to appreciate risks and consequences consequences and just a when the law is with below eighteen executions can't be done so how can we look at what the supreme court did in that case which i not  but that's not my job and say but this line which we have drawn isn't the one that we have used to whether we like it or no i mean there is something absurd about saying kids can't smoke until they're i know that i'm petition for rehearing was denied in cruise and you think other courts across the nation are recognizing that the science associated with used and social norms are sure courts are still instructing short of what they should be here and you won't run into these problems in case after case after case over two decades if not backcourt or even those three judge panel could