with your argument next in case fifteen five nine nine one shall versus united states ms bell thank you mr chief justice and may it please the court clause one of the federal bank fraud statutes premises culpability on intent to defraud a financial institution and this case concerns what that element entails the settled meaning of cause one's text based on a century of this court's precedent it's fraud process that makes clear that intent to defraud a back requires intent both to deceive the bank and wrong the bank in its own property rights intent to wrong a bank property rights which includes it's own possessory rights in bank help property means intent to cause the bank not the customer to bear the property loss of a fraud scheme and in this tree right regardless of what i want to do with this property over you who's taking it from me so where do you get the next step the rest per century right means that i have to  intent to deprive you of your purpose possessory right then that would be sufficient and where that comes from is from this court settled fraud precedent going back one hundred years the court has interpreted the term defraud to me thieve if there is one believes it all that jewelry is insured indeed over insured so it's not that well it's so it would depend on  the the language of the statute so if as defraud she lied he says i'm knocking on the door you know i'll go as far as you want i don't do that that has anything to do with it you mean if it if he if he the frauds and out of the money if frauds are out of the jewelry says here i am your local jewelry cleaner that's a jewelry wouldn't you think that was fraud even if she's insured even if you think she's triple insured even if he thinks that in fact this isn't even her jewelry but it was just loaned her on the occasion by a good friend the necklace it would depend on whether the statute in that case required the intent to defraud is the best that huge says is defraud defraud in that case it's much like the mail and wire fraud statutes which do not specify are required victim for the fraud scheme and therefore provided the government could prove the two undisputed components of the term defraud which come from i'm not asking you to repeat it i'm asking you if the local person comes to the door and says dear miss cardassian i am your local jewelry cleaner please give me your jewelry she does right and that's not fraud he wanted to get the jewelry he tried to get that he also believed that the friends are just good for the evening but she's triple ensured that she won't even lose any money because the bliss of he'll be worth it ok right now that my question is there is the statute i would have always thought from my first year in law school criminal law that that was fraud but perhaps i was wrong so i would like you to explain it yes your honor that would be a scheme to defraud the insurer if the scheme if the end in this case of the m wire fraud statutes which penalize a scheme to defraud anyone for example and provide heightened penalties for schemes that defraud anyone and happen to affect the bank then yes that would would satisfy the statute but if the status th specified a particular victim as clause one does here and clause one says the intended victim must be the back not the customer and so our argument depends on that and two steps based on this court's longstanding fraud precedent the first is how we defined a fraud but the second is the presence of the direct object there in the example that your honor posited there there was no required object of the fraud scheme and therefore at the very least it would certainly constitute a scheme to obtain money or property by means of false pretenses if you get mired in some very abstract concepts of property rights yes someone is insured but you know if they keep getting their property stolen their insurance rates go up here ok it wasn't if you correct it wasn't the banks own property but it's somebody else's property that they use in making loans and again they will have less money to make loans if the property is is is being is being taken now does your case turn on what the defendant knows you and if that's not right i mean  the argument is well people commonly think you put your money in the bank it's your money in the give it back but in fact it's of course loaned out by the bank but if the defendant really thinks i'm not and i don't want to take anything from the bank i'm taking this from  and he's wrong is he off the hook yes your honor so first of all the standard here is not what he knows but what he intends which this court going back to the durlan case in one thousand nine hundred six has equated with purpose which makes sense because we're talking about  scheme with is a plan with a purpose and precisely for that reason this particular liability scheme avoids the effect based technicalities that the government complains of because it doesn't matter what the bank in fact has possessory interest or whether the insur about that legal question of property so he has a do in two laws with defense your honor it wouldn't be ignorance of the law this there's nothing anomalous about an intent based liability scheme and the answer is that particular fraud scheme would be punished  obtaining property owned by or under the custody of control of a financial institution if they if the government in charge of that in theater defrauding a financial institution could show have been found guilty absolutely your honor that the appropriate charge in this case and the reason why the bank fraud statute works as a whole exactly as congress intended based on this intent based liability scheme is because the schemes that arise in the federal circuit sort neatly into cla one clause two or both depending on the design of the scheme so the design is in most every practical case and every real world example going to reflect the intent when design here the intent here is to harm who ever a harm to the interest not the harm to the entity it in fact it may be harmed although in this case of course this is an example where the banks never suffered any loss and there was no dispute on that point but certainly your honor it's because both of you are saying look there needs to be an intent to deceive the bank and there needs to be an intent to deprive the bank of some form of property interest but with the recognition that property interests include interests as well as more classic ownership interests and you agree with that correct your honor i'm going to think and mystery and you'll tell me that mr yang would agree with that too well so what are we fighting about i mean the it then it's just mr yang would say well look a bank has a possessory interest in assets that are part of its depositors account and so  that's whether you target the depositors account or whether you target something else you're still manifesting the same intent to deprive the bank of property including possessory interest right i understand your honor i think there are two issues here the first one is whether an intent to deceive is sufficient for an intent to defraud and the ninth circuit approved of jury instructions that permitted a conviction on that basis alone that seems right to man i just want to point you know that you might that all of that is right and that the government and you agree and what you really disagree on is whether these instructions reflected that correct understanding of the law and that seems fair to me and we should talk about the instructions yes but it seems to me that the understanding of the law is now you are in perfect harmony it may be the case but let me explain i think that on the the second prong in terms of if intent to deceive requires more than i'm sorry i intent to defraud requires more than just intent to deceive what is that second piece and there we get to what it means to be wrong a bank and its property right by under says in the instruction is intent to deceive cheat or honor two things first of all the i would disagree respectfully with the court's interpretation of the scheme to defraud instruction i do not think that the deprive the bank of something of value is plausibly read to has written extensively on this issue of intent versus knowledge yes your honor i went we just instead of using intent yes you can deceive someone without taking property rights certainly yes all right someone can open up an account in a folks the they've deceived the bank but it's not to cheat the bank of anything it's holding but it's the cheat the wife who he wants to hide money from right ok nothing of value has been taken you can cheat the bank in that way to out of moving something somewhere but not to take it or carry yes and you can deprive someone of property without deceiving or treating them you can rub them right correct all right so i thought and this is what justice kagan was getting too it has to be that you deceive or cheat and deprive someone of property correct your honor you're saying that by using the disjunction of the or the jury could have convicted merely for deceiving the bank but didn't find that they deceived and deprived the bank here at first i thought this case was only about reading your be brief about whether the deprivation had to be of something the bank yes as opposed to h me explain why it is i certainly understand the confusion the standard is that comes from this court fraud precedent the mailing wire fraud press and that everybody agrees is the operative body of law is the intent to wrong the bank in its what does that mean in practice and in practice what that means is the intent to cause the bank and not the customer to bet to bear the property loss of the scale that somehow that means that's not what it means  be something more is required or maybe it has to be to private ownership interest or cause a loss but the prodding of the possessor interest is not the same as causing a loss to the bank well let me explain how i mean it i mean it in the sense that as this court has recognized when you intend a deprivation of the victim you also the mirror image of that is the intended acquisition and that's where we're getting the idea that when you intend if a defendant were and i have never seen a case in my personal practice or anywhere in the federal circuits that approaches anything like an intent to actually deprive the bank of its possessory interests what defendants think about when they posit these schemes to get customer deposits is to either is either that they're taking the customer scheme designed to cause the bank that targets the bank as the financial victim of the fraud by means of concealment omission or any other kind of to my watching in the movies most of i be afraid in this case that we're going to write something a five pages is nobody's going to understand where the simple thing just see james goes up to the bank says your money or your life he sees behind the teller is a drawer and he knows that in that drawer the last five customers have given him some money that's the money he wants it doesn't matter whether in fact the bank is going to put that money in joe's miss account for whether the bank has something called the possessory interest or something else and in fact if jesse james brother comes up and says jesse james is on the way give me the money it should be the same result that's very simple minded but i need to build in me by the movies but if in fact you have a different approach i would like to know where in the law that different approach is and why it is and how this how this is i'm afraid in other words of confusion you only confuse me please yes your honor and when you when your honor says if i have a different approach in terms of where our for where our construction of clause one comes from in the court's precedent is that the question my question is why and just see james or his brother committed crime the brother probably because he's logged in says jesse james is on the way and whether the money behind the desk was put there everyone's knowledge by the depositors or whether the money happens to have been there for fifty years by the bank put in by the bank's founder makes no difference to this statute and i want to know why it should or anything else you want to say about them so that that case where there's some ambiguity in this gets back to your  question justice ginsburg that case would be best charged under clause two which covers schemes where that intent to victimize either the customer or the bank provided the requisite means of a false statement so whenever there is any ambiguity in terms of what as a practical matter does this cover clause two will cover the customer deposit scheme and logon i'm sorry the alter check scheme in locker and it will cover the deposit scheme here it will cover your hono hypothetical provided the intention also to deceive and it's not just plain let's say a bank larceny which is covered under another statute and and focuses on the effect of the conduct and clause one that is reserved for other cases like check kiting which was a major major impetus for this the statutes an act meant and congress knew at the time based on this court's nine hundred eighty two decision in williams that it was not going to be covered under clause two it's one of the most pervasive forms of bank fraud so that's not a minor role that clause one serves but in addition it's going to serve the long fraud and the bank investment types of cases where there is no affirmative false state the all right so if  of property in which it has a because of saree interest yes and we say you don't have to prove the bank is going to lose anything of value that it's going to be in green perspire insurance or that ultimately the customer is going to not if that's how we rule you lose this case no your honor because it comes down to the requisite intent and price and we're disagreeing with you that's how we're going to say yes what it means i not saying it does i think it's a hard question as to whether the instructions do or don't but it does seem to me you have an argument about the instructions that's that's correct and i think we also though would not under that second question about even if the court construes which we agree with that the intent is must be to harm the bank and its property rights it's the economic injury and that is reflected in every single fraud decision we see from this court started if the court disagrees with you about it the court  formulations that your articulated are one in the same in our view in other words the intent to wrong a bank in its property rights is the second component of the fraud but what does that mean in practice that's not nonsensical for a jury what that means is that the bank must normally it covers both purpose and knowledge so that if you tried to murder the queen by blowing up the case the cab of the carriage famous example and that would lead to the death of the footman even though you love the foot you are still guilty of killing the footman through murder ok that's the famous example yes you are so intent includes unless there's some contrary which you could argue to the boat the statute the can instruction they have to show the scheme to defraud means that the person intends which means he has knowledge that as i take it to deceive cheat or deprive that through the auris cvs cheat or deprive a financial institution of something of value so i looked at that and i thought what's the problem what's the problem that's what i want you to explain yes it's not saying intend to cheat or deceive somebody and then a separate thing or deprive the financial institution of the u it's in him to deceive cheat or deprive who a financial institution over what of something of value so what is wrong with that instruction that that's what i need to explain yes your honor and i'll answer that and then if i may reserve the remainder of my of my time that the problem with that instruction is that it allows for a conviction on the basis of a scheme to deceive the bank alone now even if your honor disagrees with me as it seems that you might that problem is compounded by the intent to defraud instruction which plainly it does not include something of value reference it plainly allows for conviction on the basis of an intent to deceive alone that flies in the face of this court's fraud precedent and we see this going from hammerschmidt in which the court equated the idea of wronging a bank and its property rights to p q neary our property last we see it the two the years later in the cone decision where the court made it clear that in intent to take something from the united states in that case the united the the statute designated the united states that that was insufficient to simply intend to take something from the united states custody without showing the intent to cause the q neary and property loss and we see that all the way through to the past when teano the two thousand and five decision about economic injury through to skilling where the court says traditional fraud involves the loss of property so applying the meaning that really the undisputed meaning of the fraud to the undisputed intent to defraud element here where clause one specifies the bank that your honor is what is wrong with the instructions that allow for a conviction on the basis of a mere intent to deceive the bank and if i may reserve the remainder thank you counsel th mr chief justice and may please the court the intent required in this bank fraud scheme case is an intent to deceive the bank for the purpose of the depriving it of something about trying to stop you so am but i did not understand that to be the argument your brief i'm looking at the heading see on page thirty six section thirteen forty four one requires proof of an intent to deceive a bank not to cause it monetary los so i didn't understand i'm not sure what it when justice kagan proposed asked suggested she was going to ask you the question i guess i am i did not think i did not think you agreed with the petitioner because i think the petitioner is saying very strongly intent to deceive is not enough and i understand you to say that it is i'm sorry that the the heading was a little incomplete but i think the rest of our brief when about to deprive the bank of its property yes and i think if you if you look at francis at page fourteen and then at page seventeen a footnote warning appeared thirty one we say what's required is thirteen forty four warnings on page fourteen reaches deceptive schemes designed to deprive the bank of property then on what does that do they have to have the intent to deprive the bank of property well when you're designing a new there's only one schemer here right and so the scheme is his scheme the case that it all comes down to the instruction deceive cheat or deprive a financial institution of something of value because you as i understand your position as clarified you do have to have the intent to deprive a financial institution of something of value right ok well then it's all a question of whether deceived in cheat stand alone or if they are also met modified by of something of value i think there's actually a deeper disagreement here and i'm happy to talk about the jury instructions and jury instructions of course have to be read as a whole and when you read that and particularly in conjunction conjunction with the materiality requirement which is discussed in the material matter you have to deceive that defraud the immaterial matter an immaterial matter is one that has a tendency that causes the bank to part with money or property i think when you read the instructions as a whole there's really no problem with the instructions but there's a really there is a deeper argument here and that is the argument the petitioner says is that you have to intend to take something that you know was a property interest of the bank you have knowledge of that and i had thought until today that they were disputing whether and intend to have a bank suffer a puny area loss in the end she says those are the same things you say they're different things let's assume you're right let's assume that that's that whether the bank in the end suffers a monetary loss is utterly irrelevant to the form of intent that's required by the statute all right so you won that one let's say you can go back to the chief justice is question about how these instructions reflect that there needs to be an intent to deprive the bank of a possessory interest in property i will do those instructions and i'm happy to discuss them but i don't think that's the end of the matter i do think that there are actually two no not at all i'm happy to discuss it but in terms of the enduring legal consequence of this court's decision the bigger ones i'd like to get to but i will discuss that the instructions here we know there's a big picture in the world what we want and hope but the instruction of instruction during consequence to mr shaw is a little bit different undoubtedly but the court generally doesn't take cases for error correction so i want to and the government's interest goes to the broader question of what does section thirteen forty four one say mr yang the instructions so on the instructions this is a pages seventeen through nineteen of the joint appendix and the first instruction that's relevant is the instruction that the defendant has to have knowingly executed scheme to defraud the defined term a financial institution as to material matter and we look if you turn the page to eighteen the scheme to defraud is a scheme in which someone intends to deceive cheat or deprive a financial institution of something of value here there is only one scheme or so the scheme or the one that created scheme had to intend to deceive or deprive a financial institution of something of value now remember the first instruction that we discussed talks about has to be a scheme to defraud as to a material matter if you go further down on page eighteen the material matter is one that has a necessary tendency to influencers people influencing the financial institution to part with money or property this is what a scheme to defraud is now i don't think when you take that in context and you have to read instructions holistic that fits in the second part is you also have to independently find that you did so that is execute the scheme fraud that we discussed as to a material matter with intent to defraud the financial institution so their intent to defraud simply says you have to intended to see or cheat again with a financial institution that's somewhat superfluous and a single person fraud scheme like this because you've already defined the scheme to embed there was requirement well but you've kind of instruction you do read it in context but if i read the instruction eighteen in the context of twenty one it kind of highlights that you have deceived or cheat separate from the deprivation of something of value so linguistically you have to say that what they meant in the instructions was somebody who intends to deceive a financial institution of something of value and that's just not grammatical it's not great but it is not but it's not ok once you put in the word material i think material you have an instruction seventeen i think that says you have to execute a scheme or differ on a financial to defraud a financial institution as to him tiriel that so no i financial institution to part with money or property that so what you took away in instruction twenty one you gave back in instruction nineteen i so it's a draw and so in eighteen says deceive cheat or deprive a financial institution of something of value something of value goes right along with deprive but it doesn't go along with deceive i don't think that's correct i understand your honour's challenge here it's that the you would say out of something of value normally if you are saying it by itself but when you have a series of verbs it's not uncommon in in common parlance simply to use the appropriate you know function word here with the that connects to the last word so when you say the c cheater deprive a financial institution of something of value the normal jurors going to understand that that means you're deceiving the financial institution cheating the fin that if they really instruction twenty one which talks about has nothing to do with it just says intent to deceive or cheat nothing of something of value and when you quote you know the instruction on page forty six to make it read to make it make sense you have to add in as you do after deceive deceive the bank out of something of value but i thought it makes no sense to say deceive of something of value it doesn't even parse under petitions reading because i think petitioner at least thinks that you have to deceive or deprive the financials like to deceive the financial institution writers or under either reader but i have to say that if a reader the way i understand this is you have to be you have to show  the scheme has to be one to deceive a bank to cheat a bank or to deprive a bank of something of value and and in that case the deceiver bank is operating as a disjunctive clause without the of something  actually you could still deceive a bank a loan cheat a bank a loan or deprive a bank of something of value and so i'm a juror i say well it's enough if the bank was deceived i don't see how you can read it you might say just deceive in the abstract no it's got to be that you're deceiving somebody else but if you're deceiving the bank if a financial institution which follows connects to deceive then so does of something of value i don't think so because that would make no sense it would be the scheme must be one to deceive a bank of something of value whoever would use words like that i understand that it's a slightly there is a slight grammatical issue with this language i think it's more than grammatical it's just like it doesn't make sense i think when you read it in context right you have to take this is the definition of scheme to defraud when you read this in context with what you're the jury is required to do knowingly executed a scheme for fraud a financial institution as to a material matter right so that scheme has to be with regard to material matter that material matter has to lead the bank has intensity today to part with money or property so when you take that in context what does that mean what's the material mattering the only way you can make sense is if you're actually depriving the bank of money or property that is something of value now if the court has concerns about how this ci the money into prague to cheat the bank of some interest in money or property i completely agree that simplicity is the is prefer i don't think there's a problem with what we have here but i w you on the simplicity i think the proper instruction is a standard fraud is one intended to deceive the bank for the purpose of the not private of something of value just just get rid of the disjunctive right that would be the better  instruction for a single member bank fraud scheme now if things get a little convoluted where you have schemes with multiple members we don't have to discuss the distrust in footnote ten of our brief but for the purpose of this case that would be simple we think that the instructions they are perfect but instructions had to be read in the context of what the jury heard or something like that i think that i mean we would say close enough for government work but i don't think we point said it but i'd it's in page forty eight forty four forty five which is the general proposition that you just have to that bank fraud this is made during forty six during structures must be viewed in the context of the overall charge and when you look at this in light of the materiality charge any kind of ambiguity that might have been injured jacketed in the definition of scheme to defraud i think is sufficiently displaced because it's not just the instruction it's what the court of appeals held the court of appeals held short quote the defendant was guilty of bank fraud because he intended to deceive the bank full stop so it's not just a problem with the instructions it's a problem with what the court of appeals held again i think this may be a problem with some brevity i don't think the court of appeals meant to say if you walk in to the bank and tell the bank you know that the nationals lost their game and don't have home field advantage that that's bank fraud of course the court of appeals knows that it's in order to obtain something from the bank that's what bank fraud is and i don't think that you know just as the heading for our brief in section c you might not have been fully complete the same thing for the court of appeals opinion but i'd like to get back to i think what's a broader issue here which is what is the intent and congress intended to adopt it specifically because it was broad and in fact congress considered drafting language that would have required scheme to arm cause economic loss to a financial institution and specifically rejected it after the apartment of justice said hey that's too narrow a scheme to defraud broader and this would to unduly narrow the statute so the government chose clause one because it was the broader clause and we didn't need clause to which and in which it could have complicated proof a little bit now on the the two questions that petitioners presented to kind of legal questions are does the defendant have to have some knowledge of the legal properties status of the thing that's took was custom deposit accounts didn't belong to the bank it did never intended harm the bank he'd still be still sculler bank robbery and if you did the same thing through deceit you call it bank fraud now there's no reason to add this additional intent knowledge about the property status of the thing that's being taken it doesn't advance any interest that congress was trying to advance was to protect the integrity of banks the cost of the bank does not depend on what subjectively in the defendant's mind about what they think is it own bodies or ownership is interest is it possessory interest is there insurance is there not insurance it depends on the nature of the actual scheme and what's being taken congress would not require an intent that there be property how do you want to set an intent to injure the banking in its property how do you say look some people bank robbers go into banks they take the customers they line the customers up against as a as a fact we do have to prove that there was a property interest of the bank so for instance in your example there was but it was a property interest in the bank what you have to prove in respect to that property interest is in the defendant s mind so the only intent required is the intent to deceive the financial institution in order to obtain something of value you know that something of value to obtain something of value so it could be of value and belong only to the  ory interest no in the reason it's something of value that in fact is a possessory interest whether or not a property interest whether or not the defendant knows it yes are going to bank the bank has to have a possessory interest in a property interest in this thing right and property interests abroad but the defender doesn't have to know about the property interest it just has to know i'm trying to get money that i want the money and that's enough so now the money happens to in fact be a property interest of the bank but it doesn't have to know that we don't require our defendants to have taken property law or banking law or studied the risk of loss rules that apply when frauds occur to banks none of these things have to be in the knowledge or of or beliefs what does he have to know well let me take a step back when we're talking we're talking about financial institutions and it might help to refer to page one and a of the government's appendix financial institutions or not just back financial institutions include certain banks when they're f d i c insured certain credit it's taking something from this entity which in fact again is a bank under the statute it could be a holding company it could be it could be anything it's taking something from this entity by deceit and that's the intent by something of value from the cen deceit it doesn't have to know does this entity is a small business investment company defined under section one hundred three of small business investment act it doesn't have to knew these things and the reason is when once you get into the realm of fraudulent taking something from the entity that's criminal conduct and the additional requirements like that it is a bank that's a jurisdictional hook it's similar to it has to know that a financial institution is involved it doesn't have that i mean  and it doesn't have to have any knowledge about whether the entity that it's depriving the property qualifies as a financial institution it could be for instance a a small kiosk in a grocery store that is conducting transactions and happens actually to misuse you don't have that knowledge of the status as property of the united states can you clarify what is in the overlap area what is covered only by one and where you do you know where your target fraud is not targeted at the bank or yes so to me let me start over it's a little confusing to cover is broader than one in the following respect it covers to cause two is broader than one because it covers schemes to deceive the custody in a bank property one does not because the deception has to be directed at the bank but one covers things that two does not because two is about the balance in the account check trainings covered other behavioral type of frauds if for instance it's a little farfetched but you could have someone impose their is you know dresses in a disguise and just walks into the bank the bank lets them into the well known customer walks in the safety deposit box takes out the money no statements made one we covered that kind of thing now these areas are you know on the fringe the two terms of the two provisions largely overlap and that's not surprising because the language that was the impetus for two was language that the court adopted in drew and in construing the term scheme to the fraud so there's a lot of overlap between these two things and that's what justice kagan recognized in law from what they both have independent meaning not a lot and some you know they often can be used the same time but they are independent mystery and you referred to us money in a security deposit your answer would be the same right if that if somebody went in and said i'd like to see the security deposit boxes and and made a false statement to the bank about his entitlements to see the security deposit boxes and took the money out yes doesn't you know the bank still has a possessory interest in that even though it doesn't use that money in the same way is that correct correct let me give you another example suppose that i'm sitting in a coffee shop and somebody comes up to me and says would i have to make a phone call would you just hang on to my computer for a minute and then disappears and then somebody else comes up the fraudster comes up and says oh she just told me to pick up her computer from her and that's a misrepresentation  i give him the computer do i have it have i had a possessory interest in the computer just because somebody said why don't you take a look you know you know keep keep your eye on this group too it is barely as what the would be and i think the answer is i think we would say yes for purpose as of the fraud statute now this would of course be bank fraud and yet but i mean but what you're essentially saying is that anything i can think of any hypothetical i can think of which involves my hanging on to something for somebody else that i have a possessory interest in that sufficient to satisfy this and i don't is sufficient for this purpose and i don't think this is unusual oftentimes rights and interests in the law are relative to other people so your possessory interest would not be superior to the person who owned the laptop but it would be superior as to third parties having no claim of right no valid right it shouldn't matter at all and i think that emphasizes why congress would not have wanted to add some additional knowledge requirement about the property status of the money like why does it matter all it does this complicate things congress would not have wanted to carve out this type of conduct is not criminal and in fact it's important recognize even petitioner says she's not carte he's not carving out anything that's non criminal in page twenty five  potentially a pleading game why would congress have wanted to make the broad language of schemes of fraud which has a history going back more than a century to be a narrow and on something else in order to force the government into a pleading game when  at the end of the day if it's played properly it's still an offense punished by the same it just doesn't make any sense this is not what congress intended and has no bit and no basis in the text or history of the bank fraud when you look at what congress did in the legislative history it rejected language that would have a dog the same thing as far as i can tell everything points against petitioner here if the court has no for the questions we' ms bell you have three minutes remaining way you present that the organ that was confusing yes took a lot of teasing does how does that affect what we do yes or that you weren't clear in the instruction don't you forfeit need to prove kunar a loss to the back with i know you want to win that but please accept my hypothetical i disagree with you that the only that the only state issue is that you have to cheat and deprive the bank of a processor of something in a possession in their possessory interest ok simple as that doesn't have to cause you don't have to intend to cause peculiar loss right where does that leave your instructional or it's still an error your honor because it permitted a conviction on the basis of the mere intent to deceive the bank and there's no curing it looking to for example the materiality component of the instruction how about if i the the challenge was always to the disjunctive lee worded jury instruction and that was consistently made from the district court to the court of appeals and to this court the only question is been how to formulate if more than intent to deceive is required then what more how do we explain that second component hammerschmidt itself which is the undisputed political definition here uses a number of different formulations and that's part of where the confusion comes from hammerschmidt says the intent to defraud i it's property rights with depriving a victim of something of value and it also equates that with cheating a victim out of something of property and also to make matters even more confusing in terms of the number of formulations it says that the mail fraud statute is limited to the infliction of peculiarity or property loss and so are formulations come out of the hammerschmidt case and what we have always asked the court to do here is t construe intent to defraud to require not just the intent to deceive as the lower court instructions required but also the intent to do that second thing when you counsel thank you submitted