they came back they said  consider other verbal or otherwise to quote them directly in this representations the judge did not limit the mental instruction just refused to say that the misrepresentations understand that problem i understand the instruction problem which i think is somewhat interesting but i don't understand how this turns into a parent's problem well there's a variance because the evidence that supported the conviction and which was which was magnified by the instructions and my closing argument directed at the actual misrepresentation someone the jury came back confused and they were sent back to the actual misrepresentations so we may have a specialty of evidence problem and you may have an instruction problem but i don't understand how  jury that they had to find that one of the charge misrepresentations with material he said and in light of the previous confusion that kind of instruction was necessary there  alternative theory presented and the instructions and the evidence allow conviction of that and here and i did argue obviously i did read the question of sufficiency of the evidence but i think the stronger argument is that there was either a constructive amendment or a fatal objected to by the defense largely because it defined materiality as something as a statement that would have been important to a reasonable banking institution which detracted the jury's attention jury's attention on a quote unquote hypothetical reasonable banking institution that really didn't allow them to consider evidence from even charm that he would have granted the loan even if the true facts about m be used in this case but i think equally it was not appropriate in this case because what might have then i mean i understand the government's concern about the whole corruption argument but at least with regard to count  it's near harm is there a problem here and weren't these these funds as i understand it were the money that was have changed for the sale of the building right so morning your honor hartley west for the united states i'm an assistant u s attorney here in san francisco and i'll be responding to the issues raised by mr de janeiro on appeal the first issue that mr de janeiro addresses is the variance with regard to count eight a the court seems to have recognized the district court directly referred the jury back to the indictment which alleged the three particular false statements so i'm just you know that it was proved that those three false statements of record page two hundred in which the court stated the statements of promises were material that is they would reasonably influence of bank to part with money or property not only did the jury did the judge  the indictment to the jurors and reiterate this specific misrepresentations alleged as well as the elements of the offense the judge also gave the jurors copies of the indictment to take back into the jury room with them so i don't believe there be something that the bank examiners would look at to determine whether this was a good loan or not i presume the evidence about that your honor the united states had the testimony that the papers were in order and specifically he also testified that a reasonable banking institution would find it material if there was a misstatement of income on a loan application so merrily he t consider the false loan application because it was stale and for other reasons however the facts that were before the jury indicated that mr chong said he didn't need the approval of the head office in singapore in order to approve t and the bank form a said you know we're collecting a lot of information here for our records for survey purposes but we really don't care what your assets stars long as they're over x amount of money and the person filled  reasonable person standard be correct in a situation where it would be prejudicial i don't think that there's any ground think that it would be error in such in such a circumstance if this may be getting to the court's question affect the investors and with regard to branches of foreign banks because of their interaction with domestic banks in appropriate transactions and also a fact and contaminate the u s financial system so it's for that had a natural tendency to influence or were capable of influencing the bank and misstatements particularly of the sheer magnitude of thirty million dollars more than double a misstatement would certainly have the capacity and a natural in this case the court did instruct consistent with a proffered instruction by the united states that was modeled after the eleventh circuit materiality instruction thank you for the definition of materiality in a bank reasonable no standard quoting the same language as had been quoted  and then of course the johnson decision says that these are acceptable alternate definitions it sounds like the court understands the facts here were with the bangkok metropolitan their brief mr de she knew argues that traceable to really means attributable to which here it i think i think it was judge used in who said that any  error there's really is a distinction without a difference in this case what the court should be looking at is what were the proceeds of mr deja news thanks for that for the counter conviction which in beyond that there would be the profits from the sale of the property but that doesn't even need to be considered here because the six point five refinance loan that is so directly obtained from the first loan application already  you judge for sure you asked if there was evidence on papering up the file that was there was evidence presented as to the bank of metropolitan bank but not the international bank of singapore i just wanted to clarify that  specifically argued but that certainly the federal reserve examiner testified that you know that a false loan application was material one ever received which i think that testimony conflicts might conflict with the legal definition of materiality but that was relevant to the notion that well these this application was submitted late to paper up the file to cover up with the federal reserve but however the conduct of the bank v well in terms of i just wanted to make that actual point to answer that question i actually wanted to turn briefly to the question raised about reliance which is materiality we agree i would agree that reliance is not an element but the fact that there was no