good afternoon your honors ma'am please the court my name is elizabeth daly i am here representing appellant dan heinie and also for purposes of today's argument i'll be presenting argument for both co appellants and heinie and they are negates what the court's permission i'll  to reserve five minutes of my time for my rebuttal this case involves the conviction of two bank executives based on unprecedented expansions of the federal bank fraud statute beyond its core purpose and in contravention of the clear trajectory of is the rule is that when a general verdict may rest on an impermissible theory of guilt and we can't tell that it didn't rest on the m permissible theory then reversal is required well read and read and not covered cases have nothing to with instructions that were given issue and yates was an invalid objective of fraud i think corona is the best example of a case where it wasn't about the instructions but was about the argument presented by the government and verona it was the continuing criminal enterprise case where the government argued to the jury that the five individuals that were required to be supervised they said well we have an abundance of individuals that could qualify here is twelve years eight individuals and all of those were presented to the jury and arguments when the case was submitted to the jury it was submitted to the jury on instructions that tracked the statute and there was no error and those instructions but because some of the individuals were illegally not available to qualify as supervisee is based on president the court held that it was and permissible legal theory presented to the jury and the court in griffin quoted in verona explained that this rule this invalid legal theory role makes good sense because jurors by contrast to how they handle facts are not equipped to determine whether a particular theory of conviction submitted to them is contrary to law and they went on to say when jurors have been left the option of relying upon a legally and adequate theory there is no reason to think that their own intelligence and expertise will save them from that error legal theories that were presented to the jury and this case were vetted by the district court in advance they were presented in the indictment they were presented in pretrial proceedings that approved by the district court and they were ultimately argued in closing argument and that is an error if any one of those theories and valid i think the distinction that i want to make sure that the court focuses on between that and valid legal theory and the sufficiency is that there is no deference to the government's version of facts and the context that we're  and moreover we know from verona that the general verdict itself cannot cure of the error so there is no typical respect for what the jury decided because the jury was given a ground that was legally and permissible without principle so the the principle is that i think the governments of framing this as sort of a pedestrian application of what the statute is but in reality it's a performance based salary theory that appears nowhere and precedents and the reason i think it's unique is because it goes to any scheme to exaggerate the quality of one's work to hide information from one's appearance about how one's performing their work when it goes to the quality of your work product your work performance how you're doing your job and your salary is tied to how you do your job than virtually any scheme to be deceptive within the scope of your employment would be turned into fraud and the reason that's important i think a few things is that one we're within federal bank fraud and this role this would implicate the banks role as it's employer a common role that any you know employer approved performs deciding compensation  also we have this long line of supreme court precedent where they have repeatedly and fairly consistently rejected these expansive theories that wouldn't turn an extensive amount of conduct traditionally regulated by the states into federal fraud and so this was discussed in mcnally it was disgusting cleveland and skilling mcdonnell and yates cali and i'm was well taken here that this case isn't a case where there was a particular financial metrics that was linked to a partition of that particular financial reward and that would be the type of narrowing construction of the statute that could save it from vagueness as the court has discussed in for example skilling but when it's that your job was performed dishonestly and had your employers known that you performed your job as honestly they may not have approved a salary increase they may have good job you met the tier one capital rates which they honestly admitted that they had never met there was that the whole performance of the banks the whole management of the bank and their rise much discussion of this in closing arguments about what are the you know half a dozen factors that the bank might consider and deciding salary and assigning a bonus and there was no particular actor that resulted in the bonus that can be linked to a particular deception proved in this case  and so i have two responses to it st it would not cure any error from the accurate information theories so if this court determines that accurate information standing alone is not a valid theory of prosecution that is the error that requires reversal and no argument inferences in favor of the defense it's a tall order to say that the primary objective pursued by the government from indictment through pretrial all the way through the end of closing and then continuing to be justified after closing was not  and and where it's the easiest path to conviction it's a tall order for the government to now come back and say we know that the jury did not adopt that theory we can tell that they would have convicted or that this improper theory that we argued to them did not influence their verdict that you had information quite honestly was the easiest way to get to a conviction here then i mean it isn't the difficulty here with that is that there are numerous transactions numerous examples the deprived of something about your that's not the element of bank fraud the element of bank fraud is that depriving of something of value is your purpose your goal your aim and kelly they were very clear about implementation costs that incidental by pro that below is which is because that wasn't the defendants didn't personally benefit from that the government agreed on multiple occasions that allowed their whole we know where they don't have to personally benefit but there has to be a motive for them to have wanted those funds that has to be their purpose and that kelly case they said of course that attendance wanted the port authority employees to be doing this work that was how they implemented their goal but where they wanted to have something about something that wasn't something of value was they wanted political payback and this case the government didn't pursue the theory is that use of bank funds was the purpose of this conspiracy because that you could use of bank funds was why it's allowed the conspiracy to continue on the government's view the defendants didn't want two hundred and sixty five thousand dollars to purchase the avenue they wanted the bank to recoup a loss from avenue and they wanted the bank's books to look better according to the government's theory they i would also remind the court that this is viewed in inference as favorable to the defendant i think that that evidence in the light most favorable to the defendant would suggest that the defendants weren't involved in the six hundred and seventy five thousand dollar whether that was for the entire balance of the bank's loans that had not been paid by a certain date your honor i see that i'm running out of time i'm going to address this point and if there are other questions of course i'll dress them but the undisputed evidence even from the f b i x e expert wording is that customer doesn't have to authorize a payment for it to be received by a bank that your grandmother can pay your student loans even without telling you that she's doing that that is very different situation than the grandmother during the learn i disagree with the requirement that it has to suggest anything what was asked here was a certain piece of information and the information that was provided was true the aliments of the false entry anything else would support their conclusion that alone is past you if the bank has in fact received payment leaving evidence in the trial show that everybody had an accepted understanding of her the way you you create criminal it's not written down anywhere and it's not fly by and what's on the piece of paper and i big even if you accept the defense argument that it can be the bar or club somebody else in this case there was no there was no actual payment by an outside payment coming into the bank of from from either the borrower or a friend and eighty nine dollars thirteen cents those are the house that there was that the evidence shows the bank actually did not receive an outside payment from anyone it was just a shell game that was created during the scheme and i do agree that  fifteen it is the hardest to defend once you bring in the the friends and family exception but i think i can do it because that was when loan officer walsh mason he met on the gov account on the last day of the order and we argued that in closing and the evidence showed that the defendants arranged financing for won't or projects by disguising the true purpose of the loan from the bank loan committee and the board of directors that is straight forward bank fraud in the us they were using i mean what's what's your answer to your friend's point that it would be different if they were directing the bank funds be you know given to themselves right but the object here was not to obtain the funds it was you know they were moving the funds around the netting them paid out as an incident to their scheme to make things look better than they really were so it's  how to use his property in this case the bank so the bank gets to decide how it wants to loan and something to bars or finance a project in the evidence depriving the bank of making those decisions with respect the for the port junior employee bank to finance this purpose bad decision to give money or loan money to a bank insider belongs to the banks through the board of directors not have been offenders so that's gives the bank additional nd tier collection rights that's the right to celebrate him and that is the right to initiate foreclosure proceedings for the failure of our property and take the proceeds of that fail to satisfy the sees in the records placing them on the record when they were actually dealing with the object of the evidence showed exactly why because when banks have bad loans on their books they have to recognize losses on their compensation by the financials the profit wasn't it wasn't tied in some you know very specific way like you know if you meet this target you got there was just you know if we think your if we think the bank is doing better we'll think you're doing a better job and will pay you more right i mean it is it isn't that a more accurate description of the relationship that i would i mean there are several factors that i'm at the board of use so there wasn't there wasn't necessarily the one all and all he all but the question is does the evidence support the jury's finding that the object of a lie about the profits in the bank then let me ask you i mean suppose you have a you have a bank employee and he's hired to do your banking stuff and instead of doing the stuff he's supposed to do he spends his day wasting time on the internet and he lies to his bosses about the fact that he's not really doing his job and part of the reason he's lying to them is if they knew the truth you know they would fire anyone no longer get his salary it is that bank fraud you are  read that that may not be that may not be bank fraud i don't really have any guy folks from this court or any other court to tell you where the line is that just because i know you're calling it the status quo the way it seems like on your view you could just as easily the end of the year if you do a good job and give you a raise i'm not sure that there is a difference there's no there's no in the one hundred dollars or in fifty thousand dollars if the object of the lie is to obtain money belonging to the bank  the compensation bases additional salary from the bank at the end of two thousand and eleven after the two year period where the vast majority of the transaction occur and they are able to say the financial health of the bank a strong are time to worthy causes that if you did that you you can come in and tell the bank and they might give you a little foreman's bonus that a little extra money around holidays if you came in and then i volunteered you know for twenty hours and in fac discussions that are illustrated in the supreme court opinions of nowi and skilling where the supreme court ultimately sad these concerns are what makes us apply the doctrine of constitutional avoidance and the role of lenity for a narrowin construction of a federal statute that would otherwise have limitless boundaries and if they go ahead sorry i was going to say and they say they particularly chose to not include on of services fraud within the money or property traditional fraud and mcnally and for similar reasons and skilling they sat on a services has to be confined to its core conduct of bribes and kickbacks my  indictment as presented to the district court as invalid this court needs to as to impose a harmless error of you when those principles are at their peak because the jury was never given the correct theory reply brief essentially says that how you look at the facts as you do all inferences in favor of the defense and the discussion today has largely been in favor of the government this was a robustly defended case we tried to set out just a small hint of that defense in our reply brief but that's why we've provided the court with the closing arguments and the closing power points which i think show that many many inferences that could be resolved in the favor of the defense if they didn't have this erroneous and easy pathway to a conviction ok