this court and other courts of appeals f consistently recognized that when the truth or falsity of a statement depends on the meaning of the term the government bears the burden of proving that there is no reasonable interpretation of that term under which a defendant statement is true in this case a government necessarily cannot satisfy an urgent interests for a term past due and be reasonably interpreted not to encompass the loans at issue he regulatory guidance but not an even bigger asleep require the reporting of such laws given that there is an objectively reasonable interpretation of ast do under which the bank's reporting was true the government necessarily cannot of the regulation has to be considered do they have to comply with the interpretation by the government or do they have to apply comply with something else well your honor i think that the regulatory guidance by the f c c and the federal reserve here you know it is is what in theory should at least draw the clear line  those regulate that regulatory guidance didn't set forth a very clear and unambiguous definition of past you under which these loans had to be reported then you know i don't think that you could certainly enter a judgment of acquittal for defendants i think you still might face it you still have the problem of course here sending it to the jury nonetheless with improper jury instructions and without all the available evidence as my colleagues are going to address but the real issue with the s e c and call reported guidance is that contrary to the government's argument they are anything but i mean big u s and clear as to the reporting of these instructions of these federal reserve defined with clarity that would still mean that something could be not a false statement for purposes of the f c c species but a false statement for representations made to the federal reserve for the following reason which is if there is not a clear definition of past due in the s e c guidance may and as the government is doing its own rate it's going outside the four corners of the f c c guidance to try to provide a definition for past due in the main for example it goes to online dictionaries which you know we have a reasons as to why that's not appropriate but what it's really doing it once you go outside the four corners of regulatory guidance you're really opening the question up as to what is reasonable interpretation for that term and a bad point i think you do have to take into account not only other guides which might be the color poor games but also other federal four corners of the f c c guidance to try to provide a definition of the term past due which is own expert conceded it was not contained in the f c c guidance then you know not only are there problems with doing it in itself as we explained in our brief but then you have the problem of the defendants not being able to introduce evidence on their own outside the four corners of the guidance that speaks to that same definition of past due and whether the loans here add to be included  it the agency its own interpretation of this rigid tory guidance is it what a reasonable bank would perceive of that guidance is it what a reasonable member of the public would understand it to be and when we don't want to make the circumstances so fact pacifica becomes essentially subjunctive question but what is the actual object of question  asking about the reasonable interpretation well i think the reasonable interpretation is not going to have a different understanding than what it means in typical agency decisions regulatory decisions but with you know with the understanding however the important aviad that this is not an administrative case this is not a civil proceeding this is a criminal case and that's why in these reasonable interpretation that would make a defendant statement true and so here i think that when you are looking at these particular particular regulatory guidance you can use sort of additional tools of construction and premised on a the same false statements regarding the waiver practice and whether those loans had to be reported as past due in just to put a pin in it i was going to get to this but i'll be the one addressing constructive amendments of the indictment might adopt a baster most reasonable interpretation but the agency can conduct for itself any reasonable interpretation and it can impose a higher legal obligation than what might be required by the by the best interpretation and it made a distinction between courts resolving ambiguity using the methods of construction private parties my boss to reliably  follow versus an agency that might bring technical expertise or i even political values to its its interpretation so when we think about the the decision about whether the interpretation of a particular ter is reasonable or unreasonable what perspective are we taking i think you're right that your honor i think you're still taking the perspective of a reasonable observer and i don't think there's a difference in this case just because it happens to involve regulatory guidance because to be very clear this is not regulatory guidance that it clarifies anything you may never want it wasn't you know certainly wasn't passed through sort of notice and comment will making or anything of the sort but but here the regulatory guidance itself is what we're looking at so you know the question then becomes is that guidance providing the necessary clarity so i don't think it's necessarily a question of whether there was a reasonable agency determination here because there wasn't an agency determination except to the extent that there is this guidance and as we go through the geithner question then becomes is there a reasonable interpretation of past due according to this guidelines under which these loans do not have to be reported under the f t c is definition so i guess eleven interpretation would be that the waiver or the mass extensions changed the terms of the contract and if the waiver in the mass extension change the terms of the contract then they aren't passed if the waiver in the mass extensions didn't change the terms of the contract then they're probably past due under this definition because the maturity date  questions of contract interpretation are those usually left for jury so should we go to a jury st to decide whether or not the waiver contractually change the terms of the agreement whether the mass extensions contractually change  begin with that that's not even what the jury was asked to do in this case and my colleagues will discuss it more but to go back to your your immediate question i think i would i would push back a little bit on the idea that if there had been you know no change that there that that would somehow render these loans past due because i don't think that you can simply say that you know something that you can read contractually into the meaning of past due because the phrase is contractual under any definition as to if you missed the maturity date and you missed the final interest in your past under any construction these loan agreements if you miss the final payment or you miss the final interest but it depends on the type of loan and what exactly is missed and that's where the color port instructions i tend to give some sort of clarity but insufficient clarity because the color part instructions there say that if you've got a loan the boat providing for the payment of interest at stated intervals well then you report it is past due after one interest payment is due and unpaid but then you've got and that's perfectly satisfied a person with a loan misses the final maturity payment and misses the final interest payment that triggers three dollars and four dollars so under any interpretation you're past due and so the question would have to be well let's look at the contract and see if the contract was modified based on the way you or the masses but i don't think that the i think i would go pushback on the premise of that which is that you'd be do under both number three and number four because as as as we would read those those instructions to the loan can either be only one or the other number three or number four and the best way to interpret those is that the loans that were at issue in this case only fell under number three which is what the face of the regulation actually says i mean if you are looking at these is this regulatory guidance that is the clear plaintext it applies to these loans the only way you can get to a number for applying is if you sort of engage in you know it in interpretive backflips that we don't think are proper proper construction you know you have to treat numbers three and four it's changing depending on the maturity which would be very different from how you treat circumstances that have mature even though there's nothing in the text about that you would have to read number four as the only one that applies to maturity even though that's actually not a universe of assets that number four is in compassing this is a this is a variation on the what assume instead of a list the five circumstances there was only one circumstance and that one circumstance happened b circumstance full under that circumstance you still have a falsity argument you still have an ambiguity argument i think it would be a harder argument for certain i mean i think there's still some ambiguity from from the f c c instructions but i think that you know that that's a premise that  not in this case and it's and i'm not just saying that to sort of be glib i'm saying that number three makes all the difference because not only on it's plain faced as it applied at the moment here but it's that exact same language number three number four together at the o t s  guidance was looking at and looked at that same number three to reform or to really identical language and said you don't have to report loans like these and so if it d you know i think that certainly underscores that any reasonable interpretation of this guidance the color report guidance is to say nothing of the f c c guidance which doesn't provide anything along these lines whatsoever is that it is reasonable to interpret this guidance as not in compassing the loans at issue here i think when you've got another federal banking really a regulator one of your two federal banking regulators and they've actually you know signed an agreement and made public understanding is that they're going to approach things with uniformity that when you've got one of those regulators looking at this exact same language and saying loans like this current or interest they don't need to be reported that is certainly reasonable to construe the color pornstar to saying the same thing and we're not here to argue that it different directions you know that the ryan case seems to make it very clear that if there is a if there if a term is open to numerous reasonable interpretations and the defendant's statement is true under one of them that that statement cannot support  assigned case sends the case to the jury you know but i think that our positions are not entirely inconsistent because what we're asking is that you know if the court is to be clued at that there is a reasonable completely to construe that guidance as not applying to these laws but on the other hand it nevertheless sent the case of the jury and so i think under either approach the government has a problem because you know it has to either establish the regulatory guns here was completely clearly in an unambiguous but then it has a problem because the case did actually go to the jury at which point the jury at least had to be instructed on the proper burden and the proper legal rules in accordance concludes that no it can't go to the jury because the government necessarily cannot satisfy the element of falsity and if you want to call that fundamental ambiguity which is an argument the government never made below and only raises here before th you know will play on that field because ryan makes it pretty clear that when you have numerous interpretations and you have something where it that the term does not have a meaning about which ordinary men of men of ordinary intellect  then you have a fundamental ambiguity it's really saying the same thing as all the other cases which are saying if you've got a term that is open to multiple objective lee reasonable interpretations and the defendant statement is true under one of those interpretations there must be an acquittal because it is the government's burden before the jury to have to establish that there is no reasonable interpretation of the term under which defendant statement is tr trying to establish you know whether there was a reasonable interpretation of that objective term is important you know to that particular inquiry but if the court you know were to conclude  are you know that there is not a particular reasonable interpretation of the term then at least it still i think has to go to the jury at that point because again it is the it's the government's burden to prove so the court could conclude before it goes to the jury that you know  there may not be a reasonable interpretation backs you know is enough to d you know negate the government's burden beyond a reasonable doubt so that it could still go to the jury but at that point the government has to prove to the jury beyond a reasonable doubt about the reasonable interpretation and all the other elements of falsity and so i think that there is a way that you know that there can still be a question of law before the court you know and because of the government's burden of proof interpretation was unreasonable which you know i think is it is a hard decision to defend to given the regulation regulatory guidance but it then went ahead and sent a case to the jury and gave them all the same instructions while putting sort of a thumb on the scale you know as my colleagues are going to talk about and not actually instructing as to the government's burden to prove beyond a reasonable doubt that there was no reasonable interpretation under which the defendant's statements were true and so you know that's that's i think that's the main problem with this case is that whether you treat it sort of on the front end or on the back end there's a real problem with the decision below so i false they get to the point of saying yes you know we think we can clear that we can make both types of proof maybe the key and maybe they can't but if they get to that rush will they clear the clear the rule twenty nine issue and that goes to the jurors and i think what you're saying is they don't clear that threshold because they can't even get to that poor that rd option but if they could you aren't saying that would go to a jury only right if i if i fall here question and i think it would be a harder case to get to the jury on that particular element except that you know i think that you you might have a question about what is you know what is the jur what i understand the linchpin is is that the proof under that rd definition just wasn't there so your argument is look you know they may have had it under the th definition but they didn't have it under the rd definition because there as well if you've got a situation where a term is open in numerous interpretations and the defense statement is true under one of them then the conviction can stand and what you just described in terms of it if there is a reasonable interpretation under which these loans are not passed do then it should be a matter of law on a judgment of acquittal and so if you look at then you do have to go to the regulatory guidance and you have to decide does the regulatory guidance clearly and unambiguously cover these limits and it and i just don't think that it's a plausible answer to say that they do when the f c c guidance doesn't provide a definition when the gap provisions also referenced in that k to announce an articulate its own policy for determining past do stats and so there's something beautiful about the gap guides which it says the regulators not picking record eight for eight and this is in rebuttal to the guts of the government argues in its response brief to this data provisions point which is the only thing they have to say about it that oh well the wilmington trust own ten k acknowledges that they use the in the ten k and you know the government simply misstates the ten k in trying to say otherwise and so if you're looking for where does wilmington trust provide its approach to past due loans it's right there and that's consistent with how we had it done things for thirty years with nobody saying a word about it not it's outside auditors not the federal reserve they were doing it in clane view and nobody said a word which i think only underscores that writing doesn't do that either and i think that to the extent there's some you know overlap between intense and and falsity in some of these other cases you know i think a lot of that is due perhaps to the fact that in some of those cases you know there are perjury cases d and false statements are rising in perjury we've got this sort of back and forth going on about you know questions and so you know it's it and the court has said in those cases you look to the context of the questions as to you know what did the defendant really think at the time i don't think that you have that same sort of situation in the sort of form cases where you know you've got to try to interpret the meaning of term that is set forth in a government form but i also think that you know if you're looking to context which is what those other courts are talking about sometimes and trying to determine this in the context here is the regulatory guidance which really doesn't get you anywhere and it only gets you to sort of lack of clarity lack of sufficiency that you need for a criminal conviction and so you know i think that when you're talking about you know the necessary clarity administrative proceeding or civil proceeding i think it might be maybe a different story but this is a criminal proceeding and you know and on the subject of sort of the the idea that this is like a post hoc interpretation of the regulatory guides this is the way that the banket been doing it for thirty years in plain view of every one of its own employees its auditors of the federal reserve not hiding anything and government constructively amended indictment here so in signing a court found constructive amendment of some charge counts but no constructive amendment of other charge counts and the distinguishing feature was whether the charge to count identified the specific eery that the government later used as a basis for liability so in that case it was something called the pennsylvania rate theory and if the church count did not identify that theory there was constructive amend if a charge account did identify a theory there was no constructive amending and the court i didn't take much to identify that specific theory the court held that it was enough that there was an abbreviation in a chart within the charge count but there still have to be an identification of that theory in the church  the indictment if you look at count one paragraph sixty nine dollars to seventy three dollars which lays out the manner and means of the conspiracy it says it refers only to the waiver practice there is no discussion of the mass extensions there and then paragraph seventy three dollars which i think key one in all of this it says the waiver practice also concealed from investors in the bank's capital raised the true nature of the banks loan portfolio so it's tying it to the securities fraud there and then when you move to count two there's nothing about mass extensions in there all it does is it states the two the two general theories of false statement end and scheme to defraud that are available under the securities fraud statute terms of identifying the specific theory of security scheme to defraud it doesn't do that and neither discount one and that is exactly the situation inside and that this court said is insufficient and that constitutes constructive amendment because bear that the court found that there was constructive amendment when there was simply not even a reference in the charts counts to the specific theory and it was the pennsylvania rate theory and in that case all it needed all the government needed to do was say at that abbreviation p a which stood for pennsylvania or a theory in the charge counts but that wasn't the case and so the court found constructive amendment there even though it wasn't much here we don't have that you look at number two the bill of particulars doesn't say anything about mass extensions the whole problem here is that there was never any specification of the mass extension theory in the charge counts of the liability and number three i think you said at the outset of your of your question which broke up a little bit you're pointing to the incorporation of the rest of the indictments and in a few critical response it's a bad number one it's it's not relevant that there might have been an and there's a reason why i think that's the case is because if you number one if you look at federal rules of premeal procedure it says account may incorporate by reference an allegation made in another count so already there's not really a basis for looking create stuff but i think that would also be not a very good rule because the government can always lard up to the part preceding accounts with you know hundreds of paragraphs about all sorts of information so for example here you know they spent a number of paragraphs talking about supplemental financing which really did not play any eventual role in the trial and so to ask defendants to have to sort of parse hundreds of paragraphs preceding the charts counts just doesn't make a lot of sense but also if that were the case i would have come out differently you know sign would have held that that there was no constructive amendment even aware there wasn't a reference to the pennsylvania rate theory in any of the charts count because it was mentioned earlier on in the indictment but that's not enough and clearly here you know even if you sort of accepted the idea that you could generally incorporate entire proceeding part of an indictment into the char agree with mr hicks that the lack of any statutory and regulatory definition of past due means that any conviction that's based upon the failure to report loans that fall within that category of pas of the offense at issue a proposition that the government does not contest or really even address it had to go to the jury and it most importantly for purposes of my argument your honors it had to go to the jury with appropriate correct jury instructions in this case as it turned out regardless of whether it should or shouldn't have the question of falsity was in fact presented to the jury and that jury had to decide  the government had proven beyond a reasonable doubt that there was in fact an established definition of past due under which the defendant's statements were false or put it another way whether the government had proven beyond a reasonable doubt that was no reasonable interpretation of the term past due loans that would make the defendant's statements factually correct that was either of those were the jury's task and with it instructions that they should have been provided  actually correct didn't you mean correct so an if there was no reasonable interpretation that the government would have had to prove let me be because you know these instructions the way they're articulated by the various courts that have adopted them and no court has gone the other way but i'm just greenberg i understand though awkwardness of this of this phrase yalit but the way the courts articulate the standard is that the government had to prove beyond a reasonable doubt that there was no reasonable interpretation of the term past due loans that would make the defendants statement factually correct that is the government had to make it the idea that there was a reasonable interpretation under which the defendants version of events that is that the waiver practice constituted hicks's position mr hicks is correct that would lead his position would lead to a judgment of acquittal if i'm correct in my and i don't disagree with him of course and we would prefer a judgment of acquittal by all means we think that that was what would have been appropriate here but under my version of events at the very least if them when the matter was presented to the jury there needed to be proper instructions and if there were not proper instructions that would typically require reversal and remand for a new trial at which as well the jury would have had to have been instructed correctly with regard to the fundamental element of falsity because those were conspiracies too to make the false statements i don't i don't think this would be a griffin or sime for that matter issue in that regard either way the jury has to be fun and the instruction that was provided which i'll describe in a moment went to all of those counts  think that's more within mr hicks's area than mine but let me try to answer it for your honor with regard to counts one and two which are conspiracy counts there would still have to have certainly never still have to have been a proper jury instruction so that but but either way if there was insufficient evidence of falsity then i respectfully submit that the conspiracy counts can stand as well i mean beyond mere taint it's hard to imagine how a conspiracy to make a false statement could and it doesn't mean that you can't ask me questions about anything you want to but but that's really what i what i wanted to address because to me that's the fundamental flaw and it really sort of came up in judge fitz's questions before which had to do with if you have all this evidence that of that there was ambiguity with regard to the phrase past due then shouldn't that matter have been presented to the jury  what actually happened here was this the judge in and i would commend to the court to actually read the instructions that the court provided here those instructions with regard to the question of passed to trace through circumstances three and four only and i will say did not correctly or fairly or even handedly even do that it ignored other evidence that went directly to the question of whether there was a reasonable interpretation pursuant to which the defendant's statements would be true evidence such as the o t s question and answer which was right on point  maybe even more importantly in judge phipps i wanted to go to your question because you asked the question wouldn't it be fair wouldn't a an interpretation or wouldn't if something satisfy both three and four would we where has the definition of passed to the definite past the definition of past due in the federal reserve guidance starts by saying the past two status of a loan or other assets should be determined in accordance with it contractual repayment terms that's critical because among the contractual repayment terms those in this case that existed in the promissory note was the following and b seen this in our brief but i'll repeat it anyway the parties agree that lender may renew or extend repeatedly for any length of time this loan and take any other action deemed necessary without the consent of were noticed to anyone those are among the contractual terms and maybe that would not have won the day maybe it wouldn't have but given what we know happened here which was for years in years in case after case these loans were extra that were in the was evidence that the record that they were told about it contemporaneously with the events in this case but leaving all that aside once one gets to what the contractual terms were that is among the evidence that the jury should have been instructed it had to consider instead what the court did in this case not not mentioning that phrase not mentioning the o t s humanae about which we've spoken so much in our brief just going over circumstances three and circumstances four which are frankly difficult to understand and appear to be contradictory it did not then correctly tell the jury what they were supposed to do should be given as to knowledge or at least urged by counsel with more open ended instruction as to knowledge and as was given here consistent with the way the broad street for example right i heard you ask that question to my colleague as well men's obviously a question in the case but here's why at the end of the day the answer is respectfully relatively easy if one looks at  time and one looks at castro we don't have to go outside of the circuit those cases make one hundred percent clear that there are separate and by the way that even this court's instructions standard instructions make clear that falsity and mens rea a falsity and intent are two different elements of the offense each of which had to be properly submitted to the jury and with regard to and so in castro the court says and here's the direct quote to properly convict a defendant of a false statement charge the government must be able to show that he made a statement to government agents that was untrue and the government cannot satisfy that burden by showing that the defendant intended to deceive these and and simon also could not be clearer that they're that these are two separate elements each of which has to be the subject of an appropriate instruction in which all the evidence is circuit asked that question and wilson and print more which you mentioned but the question those cases was different the question was did the defendants and here to the definition that they were in fact  definition let's talk about what that meant here here the defendant's definition of past due was that a loan was not past due if it conforms with the waiver practice and that the waiver practice meant that  when the way they handled it was that alone was not past due if it was current for interest and in the process of extension is it relevant whether that's a position that is thinking in this point exactly what the court the question of the court asked and wilson said it had to be the understanding at the time but certainly was of the understanding at the time here we know that the way we know that is that at the time the bank did not report loans that were in the process that were current for interest and in the process of extension as passed to this is not our definition the definition of past or that the bank employed and the falsity of which is before this court was certainly the definition that was being used through all those years so there's not the same question in wilson where there's a will there was some a post hoc effort to make up a definition and say we adhere to it no question here as to what definition the court was in fact using i'm sorry the court that the defendants were in fact using at the time they were hearing to the waiver practice and they were saying that loans that were subject to the waiver were not past due and the the question the only question in this whole litigation really was whether by doing that they were making a false statement that's the only question so so so there's no question that they're not they're not making up a new definition now for purposes of this discussion they're just saying that the definition that they used for decades and decades was was a definition persist that was that this does not appear to be clearly false and your honor if i could just step back from this in a common sense sort of way so you know if if a if an if if something is current for interest in a loan that by the way is a all interest loan we'll i think we understand right that these were loans where interest was all that was being paid it was as th point is respectfully that if the if a loan is passed this maturity it passed the date that it was originally due and is theirs and it is not in a process whereby the parties are contemplating extending it as was the expectation with regard to these loans these were short term loans where the bank was looking to see what was going to happen and often they would be extended and also to do so if the bank then declared no no we're not extending this loan it is it's time for you to pay and at that point if if they haven't paid it's past due but if more to the point if the parties are not in the process of talking about and extending the loan then it is past due at that point our definition is not that when the when the due date comes and goes and nothing happens then it's not past due our position is that under the waiver practice if it's current for interests of interest as it always has been is being paid all along and there's no process under which it's being extended then at that point it is passed to so well let me just ask kind of you know i mean it well i will it you know the journey starts a process you know almost no one's ever completely happy with the sort of jury instructions  under four and you've got a false statement if it doesn't prove both and then the no false they know what that's dressed up in the verbiage of the formality of jury instructions but if that were the jury instruction would that be sufficient for you generally argument this term past due is not defined in either the statute or the regulations we're talking about is regulatory guidance and and regulatory guidance as this  pointed out there's not have the force of law in this case that regulatory guidance is among the facts that have to be considered in deciding it in deciding whether it is a person could reasonably believe that when they were not reporting these loans they were not telling a lot so so so let me just tease this out so so what you're saying and maybe this is just an inference from what you're saying so so correct me but if past you were falls under definitions and if the statements were false is the past you wonder definitions and false under definition for what you're saying is there still a scenario in which your statements your client statements could be viewed as true not circumstance three and circumstance four are two facts there are other facts there are as i mentioned earlier when i was discussing where circumstance three and four come in there's the language of the contract itself nd there's other regulatory guidance from a sister agency another of the agencies that were the regulators here that seems to point in the other direction and what the court should have done had to do was to tell the jury that it should consider all of that evidence and by the way not just that evidence but also testimonial evidence that came in in this case problem numerous witnesses so so so so let me just stop it let me just speak about the scope of regulatory guidance right if o t s comes up with regulatory gu in the f c c comes up with divergent regulatory guide it's but it's crystal clear yes he sees it's crystal clear yet intention with o t s it's i don't know is it your position that a client that says hey guidance that might absolve you from fraud instances with respect to representations made in the o t s space but it doesn't absolve you from representation is made in the as he sees us and so i guess my thought is little bit because it's a it's a very important one for purposes of deciding this case but let me go back just to be it as simple as possible with how i think this had to come out at the end of the day the jury had to be instructed along these lines did the government prove beyond a reasonable doubt that there was no reasonable interpretation of the term past due that would make the defendant's statement factually correct that is the law it's the law that derives from this court's decision in sign i think it derives from this court's decision in ryan but it certainly is the precise formulation of other courts of the other  reasonable to look at the o t s if the f c c provides just clearing guidance if if if so this would be a much more difficult case for me if there were clarion guidance coming from anywhere but here's the truth pes do is look at the definition of past due under the f c c guidance and under gap those are that's not clarion clear i mean we're dealing with the very same statements with regard to o t s and the federal reserve as you know their sister agencies and to the extent they were both the regulators in this case both are operating under the same regulatory umbrella and as such to the extent that they have conflicting or confused or confused definitions of past due then those confused definition has have to be considered that sherry should have been allowed to consider that properly instructed as to how to deal with it and how to deal with it would be it just in order to vindicate our whole system of justice whereby there has to be proved beyond a reasonable doubt with regard to each element would have to be that if it was reasonable if his pot if this is a reasonable interpretation would have been that these loans were not has do then the defendants must be acquitted but to your point earlier all of that not just circumstance three and circumstance four but also in the what's in the introduction to circumstance three and circumstance was was reasonable and in and more to the to the point the government would have had to show that under no reasonable interpretation of past due with the with the defendant's statement could the defense they must have been true that's the government's burden to prove that let me put it different way in terms of simon if i might which was in sign with the court said was that the government in this is its language this court's language was that the government had to prove beyond a reasonable doubt that there was in fact an established definition of past due under which the defendant in that case was home station but under which the defendant's statements were false that's what they didn't do here they didn't prove that there was an established definition because of all of these different regulatory it would again it would be of clearly a job for the court if what they were doing was interpret language but that's not what happened here what happened here stan what happened here and decision that the court i mean about instruction that i had in it that considered what the evidence would support in terms of instructions such that whether you were around contractually asked you or whether it was circumstance three or four that under under any of those with with evidence that the government was debtors for example that it would be false under any of these interpretations if if so your honor either way the problem with that is this fundamental notion which is here's what judges can't do if this were just a theory of the defense charge that would be a reasonable concern but this is an element of the offense and as an element of the offense the court had to correctly and struck the jury and our argument is that the court did not do that it did not do that both because they did not set forth a standard that the jury could apply in sorting through all of these inputs and also because it did so in a way that was specifically not even handed then emphasized some some of the regulatory guidance over other and and that was just unfair and incomplete but leave that aside either way the court had to instruct the jury more than in the very very basic way it did at the end of the day the court instructed as to circumstance three and four by the way you know really put its thumb on the scale in the way that it did that by saying that circumstantially same of circumstance for applied as you'll see if you look at the instructions and then said a statement representation claim or document is false if it is untrue when made that was the sum total of the court's guidance as ufficiency of the evidence as to mr caskey that this court is not oral argument concerning so i wanted to spend a little bit of the time that you have allotted me to talk about a fundamental issue that your honour's initial questions starting with judge greenberg st question and then followed on by both judge kraus and judgeships regarding st principles specifically the due process considerations that underlie both the jury instruction issue as well as the falsity issue that mr hicks raised and our supreme court has talked about this issue as recently as this spring and as long ago as the last century and a half and boils down to this your honors before a court may send a person to prison it owes her an independent determination that the law has forbidden her conduct and put in practical terms how was mr macaskill supposed to know she was committing a crime when she joined a bank in two thousand six a few years before the conspiracy period allegedly began and began to participate in a supervisory capacity along with literally dozens of other bank employees in the preparation of past d reporting in a manner consistent with the bank's practices over the last twenty eight years and in view of both the the the hundreds of employees at the bank who participate in this process over that time the various authors from the most well regarded and skilled accounting firms that acted as outside auditors as well as the various regulatory agencies at both the federal and state levels how was she to know and this is at the root of both arguments that my colleagues have made and it presents your honour's with a choice as to how to resolve this case say i take issue with the our idea that they're inconsistent the best solution here your honour's is to is to is to dismiss the case to reverse the convictions it's miss the case if you don't do that the nd best is to send it back for another trial consistent particularly with the the jury instruction point we're making but you need to start i respectfully submit with what our court this court and of course the supreme court have said about fair warning and the government mentioned fair warning in its brief we mention it in our priest mr hicks mentioned in his opening brief  statutes such as the statutes that were cited or relied upon in the indictment in this case their statures of what the supreme court calls calls a catholicity about location there are statutes of general application that do not enumerate within them the specific misconduct so the conspiracy statute a false statement statute what the supreme court has forbidden is what's called a novel construction of those statutes and  briefly due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed within its scope just so there's no decision no law no authority no regulation that defines pass to do in the manner that the government has has placed on it in this case there is no prior authority that hicks as well and that is in trying to understand at the outset who is making this decision who we're talking about he our legal reporting requirement i take from your briefs your squarely  that is more than one reasonable interpretation as opposed to it being a question of law i'd like to understand more what position you are asking the court to have got there defendant who's been indicted threshold determination excuse me a threshold determination as to whether the conduct alleged establishes falsity and  ambiguous when it is not a phrase with a meaning about which men of ordinary intellect could agree nor while on which could be used with mutual understanding by a question and answer unless it were defined at the time it were sought and offered  no better evidence of the banks view and the bank's own conduct this was not conduct that occurred surreptitiously aren't a matter of that or any of the characteristics of criminal conduct it was his conduct that occurred over a period of years openly without without hesitation and that in judge greenberg's phrasing he his honor also goes on to talk about a mutual understanding by a question or an answer unless it were defined at the time the definitions as as mr lush works are skillfully pointed out in the last twenty minutes they don't line up the government's various sources of authority the government's definition that it puts in the indictment that is d not  particular legal authority the f c c guidance the r c m the f r b federal reserve guidance gap none of the sources cited by the government leaving aside the o t s i'm talking strictly about what the government says none of them clearly define pass do but let's get let's let let me just ask you this question let's just say that the bank itself had an internal working definition of past  is let's just say it happened again so so in there may be reasons why it happened because it said we are getting good regulatory guidance we need one that works for us and then they made statements to the regulators that were inconsistent with their own internal working jeff and mission of past due and statements to future investors that was it was wrong under its own working definition our purposes this is what falsity and then they what pass do means and then they went in and told the regulators something completely different when it came to pass and let's say they said not only that is this our working definition but this is what we think the regulators most want it to mean so that so they do their absolute best to come up with a subjectively accurate definition of past knew report zero that would be a false statement because under any circumstance it would be would be false to me but again that's not that's not what what what you're faced with here your honor and i and i think the point that definition of past due is fundamentally ambiguous but but fundamentally ambiguous has to be viewed as as as as as having some practical application again and i and i i know we're we're we're we're talking and deeply profound terms here but but how is mr caskey supposed to know that this this method of reporting past two loans was a crime it was never a crime until the government showed up with a grand jury subpoena years after the  fact as as far as she was ever concerned i'm not talking about the sufficiency of the evidence against her that's a totally different issue i'm saying as to any banker operating in the world in the two thousand and eight to two thousand and ten period how are they to know the way that woman can trust corporation was reporting its loans was was a criminal act and then it's there isn't any way that they could have possibly known that and the government's assertions that for instance the definition is clear and unambiguous i  have argued in my briefs both to to this court and to the district court mr lunsford just parse through some of the definitions mr hicks just parsed through the definitions very skillfully all i can say your honour's is take a few minutes and read through through them yourselves it's impossible for someone to conclude that they are clear and unambiguous it and i leave it at that i i just would like to  to get to the judges judge process question that she started this this morning with which is about where one of us were where do we look for understanding and the supreme court has made clear that we do not to the agency in a criminal case there is no supreme court case that has ever said that and agencies and titles of deference in this in a criminal case in the civil case yes you've got chevron you've got a whole host they says that you are very familiar with but but in the criminal case no there's never been definite deference given to a new agency and similarly for separate separation of powers reasons there's never deference given to the prosecutor or prosecutor gets to set forth their theory of  depending on the jury's interpretation of what's reasonable and not you could have entirely inconsistent her ex based on the same circumstance the same statement i did i don't ask you in  this particular context to look to what a reasonable banker would think or reasonable anybody would think this is i'm not talking about knowledge i'm not talking about intent i'm not trying about mens rea i'm not citing about the specific defendant on trial may have no i'm talking about falsity and what our court seems to be saying our courts seem to be saying is there's got to be some notice in the law that the conduct is wrongful and so if if you're asking me for example when this far past due prosecution unless and until what would somehow bar a pass to prosecution because you can never have that st case because there's never been a prosecution to begin with my answer would be yes in the following sense if the government was concerned about the banks reporting a pass to loans here the remedy was not to go from zero to nuclear from zero to a criminal prosecution the remedy was to go to the civil process the regulatory process the process that bankers any industry use uses to become aware of what the right answer is when it comes to a reporting question for example and instead here you had four people who by all accounts conducted themselves honorably for years and mr taskings case was barely at the bank with this when this conspiracy period allegedly began being told by the government years by the prosecutor years after the fact what you were doing unbeknownst to you was a crime i mean i mean but it one of saying that your point here is not clear to you therefore there can't be prosecution seems to prove too much because it would strike me that if that was viewed is not passed do such a launch under really any definition that would be well i understand your honor and obviously this has to be viewed with the rule of reason has anything i mean for instance in a false statement case against a prospective juror the jurors asked have you productive jurors as have you ever been arrested before and the juror says no and the fact the jury is going to rest one hundred times in the past the jury can come back and say subjectively i don't know what rest meant it wasn't defines me at the time because that's completely unreasonable to take up position and likewise if the bank under its own contractual terms which which require an extension of the loan if it's not fully paid in terms of principal and interest by the maturity date allows a loan to the language for what is it's seventy years i don't think this court or any other court would respect a defendant's billeted to stand up and say well i had no idea that law was passed do but here as as the record exhibits the question of what's past due was was front and center every of the trial and it was the source of as symes phrase highly contested evidence because it's simply clear as mud it's like a complex accounting advice is to lawyers it's completely impossible to to to to tease out of it a clear principle of what a pass through loan is so i urge you to view both of the arguments that you've heard already this morning it through the lens of notice due process i just have one minor not minor it's highly significant eleven small point your honour's have not invited any discussion of sufficiency i don't intend to discuss efficiency i realize it's not in this particular case the kind of topic that susceptible to to oral argument it's very fact  the court rubber cravats on behalf of the united states as the experience district judge found correctly here the defendants construction of the term past due in s c c and federal reserve reporting is not logical in there is no ambiguity in the reporting requirements as the court wrote it is not as though they state only report passed to loans without any instruction as a what a pass to whom is rather the instructions specifically tied past to status to the loan contract into the payment or lack thereof of interest or principal the district judge was right yes c c and the federal reserve mandatory reporting requirements on him big asli tethered those requirements to the loan contracts both require that loans must be reported as passed to when loans exceed their contractual repayment date for interest or principal in for emphasis the federal reserve instructions underline the word or defendants would have you read it or as a end because that's the only way that they can succeed with their argument that the word or is underlined for a reason in addition both of the reporting requirements prohibited unilateral bank decisions to exclude loans or to provide for grace periods and if you look at the standard this court has set in lyon a fundamental ambiguity is when it is entirely on reasonable for a defendant to understand the construction that's belied by the record in the diff and defense counsel referred to the record here the bank's accounting system its policies its practices public statements of defendants all aligned with the district court's construction when these loans had passed due to answer judge greenberg's question from earlier the bank actually sent out a bill to the client it took a manual process it doesn't go to the jury or if there is a fundamental ambiguity that's the only circumstance that does go in the jury if there is a fundamental ambiguity it doesn't go to the jury and you can look to ryan for that your honor the court found that the term address in ryan was fundamentally ambiguous but the term social security number was not as to the latter what ryan said was some ambiguity one not shield a false statement conviction the jury then decides the construction that the defendant placed on the on the question that goes to natalie when then that you know it and not only that there can be some ambiguity something less than fundamental become a fact question that's foreclosed by this court's precedent in bonn koski and obasi and just a reader on we've had a lot of discussions today about about whether district judges can decide the scope of mandatory regulations in which we cite in our brief the court said quote it is our obligation to interpret the d l l d o l regulation issue in this case in other words we must decide what the terms quote overnight stay and quote actually mean it is then the jury's responsibility to just dispose of any genuine issues of material fact on the basis of the judicial interpretation of that legal concept the court the same outside doesn't use as a legal concept let's  ambiguity and we agree it's a legal question the court concludes it's not fundamentally have been us but there is ambiguity under that circumstance does it become a question for the jury a to the whether the government has indeed proved beyond a reasonable doubt all city under any you are either of those reasonable interpretations not as to falsely your honor it would go to knowledge in inten that's consistent not only with this court's case law and and sarah feeney rhein and heard that the the jury decides the construction that the defendant places on the question but also with the other circuits we had significant litigation pretrial regarding the pregnant or decision from the st circuit and in order as as a subsequent decision wilson indicated under those circumstances that determination of whether there is any type of so called arguable ambiguity goes to knowledge intent the position must be objectively reasonable and there must be evidence that the defendant actually held the belief at the time that's the standard in terms of the other circuits there are also numerous cases that state goes to falsity right as opposed to  why i would disagree on or i don't believe there is any case in which it goes to falsity if you look at it whiteside which is one of the cases on which the defendants rely whiteside was decided as a question of law that the regulation there the ambiguous regulation was quote funds borrowed and quote and the question was the phrase was unclear as to whether borrowed referred to the entirety of the loan amount and origination or the amount as it was as it was being paid down the defendants construction was the latter and subsequent guidance from the same agency supported the latter and even in a later case in play which we cite in our briefing from the th circuit they explain that in whiteside there wasn't a regulation that actually applied certainly we'll talk about mass extensions later on i'm sure but all of the loans that were mass extended were actually signed by the borrower that that way they came off of the loan accounting system so if you had a loan it was actually extended in writing for the bank's policies  practice those loans those came off we were talking about here in terms of the waiver practice the evidence at trial was that those loans were waived automatically there were no informal extensions regulators picking this up and saying something your honor the reason why is because the loan amounts that were waived prior to the financial crisis were relatively low they were only one million dollars or two million dollars and we have a chart  of two thousand and nine when clearly there was a material amount of loans that were weighed in our briefing on page twenty two we have a chart that we show the jury during our closing argument which show that over the course of time even from the  you know in terms of the practice that early on there was a very small number of loans that were actually being waived and that's when there was an extension in process if i heard judge greenberg correctly he was asking why didn't the f c c or the federal reserve step in and stop it the reason is day to know about it and that's a factual question that was litigated heavily a trial was resolved in the government's favor and we get all the inference is that on appeal they simply didn't know our position is the evidence showed that they didn't know throughout the period of the conspiracy and it was only in the rd quarter of two thousand and ten when the bank actually reported ringback its past two numbers correctly but the bank collapsed and that's borne out with what happened from the time line of the case you can't can't can't just i mean a question about falsity is that you know there is there's the f r b definitions and they've got these  infinit seems that you really believe if that subsection four provides the governing definition of past due i guess my question is were the bank statements false if we if it was false under four and false under three and so i guess what my question is is does the evidence so who are conviction of falsity under three the evidence supports a conviction under for your honor and not for not with respect to three because we're talking about mature loans and part of the case was that the bank was using other loans to make the interest payment over one hundred million dollars worth of other  not true of all counts that that's that's true under with respect to the counts that relate to federal reserve reporting shall be prepared in a consistent manner and further indicates that if there is a question regarding the interpretation the fed's interpretation would control that's at eighty nine thousand six hundred and thirty eight so what about what about what to that type of regulator beyond that and beyond the mandatory nature of the call report instructions the district judge held correctly that the o t s instructions here were not hide any specific loan reporting language even as to the o t s and as we noted on pages sixty three and sixty four of our briefing the actual guidance of the o t s in all of the financial regulators at the time was that all loan extensions the formal guidance that was applicable at the time we cited on page sixty three and sixty four dollars of our brief any loan extensions had to be in writing and i'd add you're one of the o t s q and a in the district court sat with this case for a number of years and sat through that the trial it doesn't even describe the waiver practice we explain that at length because the bank didn't do it for informal extensions that's the record they're all extensions had to be in writing loan waivers were automatic and we talked at trial about the fact that we need to trust did have a temporary loan extension policy that may have tracked a little bit of the o c s language it came the closest to it but you had to use that before the loans became passed to you could only use it for ninety days and importantly all extensions had to be in writing so there was no evidence at all the trial that the district court set through sat through that yes she would even describe the waiver practice if you  testimony at trial and we saw it this in our briefing pages sixty four and sixty five with the citations is that loan extensions were automatic at wilmington trust without regard to anything that was going on with the relationship manager that's testimony from steven cummings in march in follow on c and we would get the benefit of those those inferences on appeal it was it was automatic even to the extent that the waiver practice had the standard that that the loan must be current for interest in and the quote unquote process of extension going to the st problem it's undisputed here defense witnesses testified that loans were being kept current for interest because other loans were paying them down over one hundred million dollars worth of loans honor but in terms of the f c c definition you have to have a loan that's accruing so it's actually accruing interest and the loan has exceeded its contractual date ninety days or more as to the payment of principal or interest and it states in the f c c instruction that quote no loan shall be excluded from the amounts presented mr hicks's argument here is that every single word in that instruction isn't defined but that's certainly not the standard that the supreme court has applied or that this court has applied last week in bostic the supreme court was able to determine the meaning of sex under title seven even though it wasn't defined in bonn koski the court decided the meaning of the term overnight stay even though it wasn't defined in obasi the court determine the meaning of similar to a director function even though it wasn't defined you certainly don't need every single term in guidance to be defined as long as it's clear with the meaning it's clear in why shouldn't we be considering that there's other agencies interpretation when we're assessing what a reasonable alternative interpretation of the reporting require past due certainly not with respect to an entity in a completely different regulatory scheme which the district court found was an even entitle to any type of kaiser or or our  even if the court was going to go down that road in terms of administrative deference principles and hugo boss is clearly forecloses that your honor it's important just like the call report instructions the f c c instructions were mandatory it was undisputed that under reg s x item three hundred and three if the bank included that statistical information in its management discussion and analysis it had to follow the industry guide so i think it goes back to the question the judge phipps asked earlier why would you go beyond that what the answer is you can't given the case on the circuit nor would there be any reason to do so with a securities regulator not even another securities regular but with a banking regulator if you seem to be suggesting where the now as to what what that meant should be taken as the only reasonable interpretation well our position is you should only consider the the a c c in terms of the wasn't tied to any schedule r c n are even the analogous guidance for the o t c and yes the court would would review that for clear in terms of what the district court found when he was making a subsidiary fact f something from your answer a moment ago that you were saying when really looking to a given agency that we should limit our understanding of reasonable interpretation to that of the agency itself it i understand you that go along with deprivation of liberty that we recognize that in deciding the question of whether there was a violation of an ambiguous regulatory terms that we would be looking to what was a reasonable understanding was not the agency's own understanding because that could be highly specific and even could be affected by politics well so i think your honors asking here not about the instructional the claim of instructional error but the claim of fundamental ambiguity yes well i would i would look back i think it's going to depend in context but but here if we're looking at the standard is whether it's entirely unreasonable to expect to understand it the construction we both of these reporting requirements the fed in particular held that the federal reserve's interpretation control so you know to the extent we're getting this later that this was a factual issue then you should've been able to bring in someone from the federal reserve to explain that but even if your honor i disagree is again the standard is not a complete on  that there must be a complete that there must be complete an ambiguity here as this court's precedent has said some ambiguity will not shield a false statement conviction in the standard is was entirely unreasonable to expect the defendants to understand the government in the district courts instruction and here under the clear language but also in the defense counsel discussed the record it's bel just ask this question did the loans that issue require require payment of interest and stated intervals yes ok but but importantly your honor if what i would point out in terms of and i mention this before in terms of the use of the word circumstance you have the prefatory language which establishes three broad principles st that pass through status is determined in accordance with contractual repayment terms nd no grace periods taken into account so there's no circumstances are met then the diff than the bank must report it's not as if the jewel r c n you identify whether you're reporting under circumstance three or circumstance four if any of the arkham stances in that languages  are met then that's when you report and the circumstance for four is when you have an asset providing for the payment of interest at maturity and as we set forth in length in length these particular loans allow for the payment of interest at and beyond maturity so it would trigger circumstances or after maturity so long as it was passed through for interest or principal so criticize the question wrote grace periods me yet it is your position that that the waiver rules or the mass extensions constitute grace periods well city accent that they did they were clearly disallowed under under the language a better reading of the record would be that the defendants were clearly aware of what the reporting requirements were knew that they were in a bad position and given the downturn in the economy were decided not to report and then later on down the line decided to report it to the right way and then the banks collaps practice as as i guess i would look at it in terms of being a grace period there was a clear linkage between the the loan contract the internal accounting system and the the decision to man manually adjust word a grace period you would have those two different considerations in terms of is a current for interest in is it in the process of the process of extension so it was not the government also takes the it's not it's the way the practice was not a grace period we take the position that you couldn't take a grace period into account there wasn't any contemporaneous information that they thought that there was any type of grace period point back to mr gibson statement in terms of when a lo from the loan accounting system all the way through the manual adjustments of of the waiver practice and there was contemporaneous evidence in the record that the defendants knew that the loans  let me just ask you like the difference i mean let's say let's see that you're convinced that circumstance four is the best reading right let's say that's two missing but that's the best reading but you don't you have to be more convincing than that you have to be convincing that four is not only the best reading but the only reasonable reading this kind of thing to specter bronson and that and that great line of questions out do you currently have a swiss bank account did your company at any point in time have a swiss bank account and then the charges brought because the individual previously had a swiss bank account the whole point was hey you know what we were asked and maybe that that individual did know what was being asked but i guess my point is if the question is if the interpretation of it wasn't the only way to read those questions then bronson says sorry the question wasn't enough just to sustain a false statement conviction and i guess my question here is why is for even if it's the best read just like maybe the best reading of that dialogue and bronson was there asking about whether you had a swiss bank it's right collectively can textural but but don't you have to prove more than best reading you have to prove only reasonable reading right well so i disagree in terms of bronson because you had an  unresponsive answer to a question of perjury prosecution here here are looking at what's provided for in the form and going back to that phrase your honor principle or interest with the term or underlined that is in the prefatory phrase and the only of the the four circumstances in which you see principle or interest with or underlined is in circumstance for so for a principle to mean anything at all it must apply when the loans are mature for principal or interest and again you find that term this goes back to on saturday that may be the best reading that maybe the best reading but but but but my point is is that the only reasonable reason but that's not the standard is the standard is whether our reading is entirely on reasonable under under ryan how how can that be if the  burden is on the government to prove each element beyond a reasonable doubt the defense doesn't have to put on any evidence at all about it's knowledge it's understanding right so if we if we look at reporting requirements and looking at that reporting requirements there are a reasonable person could say there are two reasonable interpretations here under one of them the the report that was was false but on the other one the report that was made was true since the government has the burden to prove each element beyond a reasonable doubt then as to falsity why doesn't the government have to prove that the statement was false under both of those reasonable interpretations well so we've been talking about fundamental ambiguity as you look at kind of the someone said before the taxonomy of how you proceed with this case the  question whether as a matter of law the term past you and s c c and federal reserve reporting is fundamentally ambiguous as a matter of law for the court and it requires this court's make a determination whether th construction is entirely unreasonable this court's precedent has made clear that if there is some ambiguity again to give a distinction in lyon that ambiguity goes to the construction that the defendant placed on the question that goes to knowledge and intent so we don't disagree here that we're there evidence in the record that the defendants held a certain viewpoint about the o t s instruction in there isn't because they conceded that there briefing that they could argue that in terms of knowledge or intent  well your honor although the cases that the defendants have cited when we've actually gone through the sufficiency analysis and in these cases it all goes to knowledge i'm even going back to predict more if you look at footnote two and print more which is the case we talked about of arguable ambiguity in instruction goes to knowledge the th and the d c circuit is have come out directly and said it doesn't go to falsity at all it goes to knowledge and intent that's the  all of this all of this works where it's a subjective standard of false and i thought we were working under an objective standard we're talking here about the construction that a particular defendant placed on the term past d and that subject and that's why in all of these cases where this type of arguable ambiguity instruction has been given to the extent that they've even been given they've all related so and so the knowledge aspect or intent in every single case that we're looking to the construction put on that requirement by this particular defendant not quite sure it really is phrased does seem a question of knowledge but isn't the question for purposes of objective policy not the construction by this particular defendant but is there another reasonable construction by a reasonable person  not at all with respect to falsity your honor and again i just go back to the cases i cited they're all regarding knowingly i think that comports with our court standard you think about how this would work in practice and it wouldn't be workable and that's why the walk through  know how all of this works in terms of the construction of a statute and same with on calif the district court has to make that underlying decision as to how to decide the scope of regulations and that's reviewable for clear in your the court can certainly do that here in terms of the construction that the district court made you think about how this type of exercise would work in practice we're not going to give jurors fifty different pages of textual interpretations and walk principles in the supreme court decision two weeks ago was one hundred and fifty pages on the meaning of of sex that's not something that juries do what juries do is the district court applies what is the construction of the term just like in bonn koski just like in a and then the jury applies the facts to that kicks and so here the factual determination was whether these loans had mature what in terms of what the court looked at and considering at the outset that a reasonable person considering this requirement could construe it a couple different ways is it isn't it turned for falsely purposes doesn't that have to go to the jury and  make the assessment as as to whether the government has this proof and the truth of this statement under either of those interpretations so i think counsel have talked about the fact that you can you treat falsity unknowingly in intentionally separately and you know there's a reason for that because again the court is going to determine the construction of the particular language and reviewable by by this court for clear air again the construction that the defendant placed on it goes to knowingly and if you think about your honor if the definition is now a factual issue for the jury's consideration the government should be able to bring in someone from the federal reserve to testify that this is what the meaning was because they all report instruction stated that their interpretation control same with the s e c the defendant's move preclude that under this court's decision berkley with the argument that only the jury can say what the law is and in fact before they pivoted to this argument now they move pretrial for the district court to hold that circumstance three applied as a matter of law so before the pit in the trial that this was now some type of factual determination for the jury the definition they argued to judge andrews initially that it was an issue of law for the court i submitted to the jury and the question whether the two constructions question three were questions or it was up to the jury to make a decision about which one of those was reasonabl as follows it says the th circumstance outlined under the definition covers the past two status of loans that are passed to because they have made sure that is the loans are overdue for principal repayment under the terms of a contractual loan agreement proof but they made the argument to the jury that quote the bank can do whatever it wants and quote but that was an argument about the language of the contracts and at no time have the defendants asked for a specific instruction about contractual ambiguity we're talking here about definitional ambiguity and again that's completely unworkable in practice with the jury it's also into federal to this court's precedent the district were also put in front of the jury instruction in terms of contractual ambiguity they asked for an instruction regarding definitional ambiguity and the argument which the jury could clearly reject and of the terms of the promissory note and the loan agreement was the bank couldn't do whatever it wanted to do in order to the loans were in default once they hit the maturity date in order to extend the loans they had to get an extension signed by all parties in writing and that's the fact that the jury had to decide in terms of indictment charges a scheme to defraud theory that was incorporated both in the conspiracy count and count two which alleged security fraud in the indictment itself paras forty dollars to fifty two dollars of the indictment there is a separate section that was actually labeled the a basis for the government's theory of the case what you are the mass extensions were incorporated into all of the the incorporate into account one and two in terms of the scheme to defraud theory as you noted in questioning mr particulars are used in scheme to fraud cases and then the information is provided so if you look at the way the bill of particulars is structured here your honor it's an essay ninety through ninety two dollars of the supplemental appendix the district court directed the government to provide the specific false statements for each of the counts and then in the next section we went beyond and said here are the additional false statements that are that are relevant some of which in compass the extension process and we noted in the footnote two as well as as the reference to the to the bill of the bill of particulars but beyond that i want to make a point regarding simon mr hicks referred to sign it's helpful that judge becker actually included a copy of the indictment  and that makes clear that the specific charges that there were under eighteen u s c section two hundred and eighty seven dollars that's the criminal false claims act so they're the reason why there was a constructive amendment was because there was a difference between the particular false statement that was charged on the chart and so the government said that every single one of those counts under section two hundred and eighty seven could proceed under the pennsylvania raid theory it's different from a scheme to  fraud type of situation where we're typically this court case law allows for a bill of particulars in a while consideration beyond specific false statements and would also argue that any error here was was not initial because the jury also convicted on the same substantive false statement counts count four which was the title fifteen offense count five which was the section one thousand and one offense that 's question about circumstance three and four keep saying that ryan is about wholly unreasonable to understand the construction of the term that is absolutely not what ryan says it says wholly unreasonable to understand the question posed to him i e a term that is an indisputable if the term is open to numerous interpretations or doesn't have a meaning about which many ordinary intellects agree it's fundamentally ambiguous that's why the court held their question concerning ryan's previous address is open to numerous and reputations and doesn't have a meeting about which many ordinary intellect could agree its falsity not intense nd mr kravitz said there is no case talking about just falsity and using as an example whiteside i don't understand how anyone if st of all this is not a given are going to the government has ever made in its briefing here and it didn't even make it in the briefing in the bail pending appeal i would think that if there was a basis to uphold counts one in two even if everything else went down the government would have made it on bail pending appeal but it doesn't because of the falsity issue so if fast do is ambiguous enough to defeat the false statement counts because the past you can be read in different ways reasonably or if the jury wasn't to be at the very least a retrial because there were general verdicts on those on those counts but we also think that it doesn't that you can even just based on the construct of men were reversed there and if i can just add one other point  from the bank's interpretation the supervisory agency may require the bank to prepare its call report in accordance with the agency's interpretation and to amend previously submitted reports in issues two important things number one it shows that the bank interpretation may well differ from the agency's interpretation and number two it's just that the st step in all this process for the agency to require the bank to quote prepare its call report accordance with the interpretation and previously submitted reports that's consistent with a clear that is not fire me it doesn't say we're going to go right to criminals liability and but people in prison and that's exactly what the government did here without the sufficient clear notice be complete ambiguity