business doing may well have been subject to a legitimate life i've prosecution if not in this jurisdiction certainly in other jurisdictions but even though i recognize the fact that my client has done some things he should not have done that is not to say that he is guilty of the charge that was brought in the northern district of california and in fact this is a case that could have broad math occasions it seems to me for the general nature of wire fraud prosecutions and veteran creditor rights and it is my contention and i think it is a legitimate contention looking at the facts of this case that my client was charged in this indictment on with taking money that the government had to and never did prove the victim in this case had a legitimate right to and as a consequence he is not guilty of the charge that was brought to starting point for that analysis of course is the indictment itself and i don't believe your honour's there is any dispute here that my client was charged with conspiracy to defraud the victim richard a money and that is the proceeds of the sale of wilderness twenty eight this is your idea of the heat that when you talk about specifically it has to be george washington greenbacks it is because all that is that is tangible property and when you look at the  statute it says a money or property and in this case it would be my contention that those actual funds where the focus of this indictment as opposed to is your honor knows from the briefs something that we might refer to as the chosen action which is the ability or the attempt to try and collect on that money which is a different species of property rights which of course the supreme court recognized in question tino hoskin pino which i hope to address too in a minute but this is clearly a case in which the circuit authority that says that money in the bank essentially creates a contract right between a deposit or in the bank and the deposited does not have specific rights to the money that's in the bank the bank takes title to that cash but i'm not so sure that's relevant here and i can explain to you why your honor there has to be in this case well it's highly relevant to the question of money but i think that in my client's possession but the government had to show an interest in that particular money by the nature of the charge otherwise there was no scheme to defraud my colleague and i could scream all day long at this point to try and keep my retirement for example from this badger but she has no interest in that  property right that i have and so it would not be a scheme to defraud that would be cognized the bill under the wire fraud statutes and so there has to be an tryst and the victim has in the actual monies for there to be a scheme to defraud charging order didn't do that it did not your honor for a number of different reasons the charging order secured a right in the victim to get the membership interests of my client's rights as a corporate manager and we shown throughout our brief and the first twenty pages of our brief are devoted to the fact that the government never proved that that would have resulted in any right to mr albury know that membership interest was essentially a sixth english by operation of law because of the other debtor  situation so the membership interest gave mr average no no right whatsoever thus the question is what right was there and what happened is that mr alba reno according to the government with the judgment credit and that as i have said in the brief is clearly what brings the adler case into play i would submit to you i have rarely been in for the ninth circuit in which i think there was a case which is more on point adler clearly says that when you have an individual who is a creditor and it's attempting to get money from a debtor that creditor has no actual interest in the money that is possessed by the debtor he has what's called a chosen action he can sue on behalf of that but he has creditor might have against an individual who they're suing you have the right to sue which is the chosen action and then you might have some legitimate right in the money they actually possess and recognizing that there was a distinction between those two rights that one might have in the property of an individual the fact of the matter here is that the government never charged my client never charged him with interfering or defrauding mr albert you know of his chosen action or his ability to sue mr shorts and for the money and that's the key component it is a fine distinction it very fine distinction but it is the distinction of tremendous consequence i think in a lot of creditor better situations creditors would be able to secure convictions for criminal cases whenever somebody who they believe the money might have moved that money around under the theory that they had some property interest in the money of the debtor and the minute the debtor move that money  ing quinto under undermined adler is simply incorrect all that the supreme court did in that case is to say that there is a distinction between a chosen action and money and so the supreme court not only did not under undermine adler but in fact we submit to you directly reaffirmed what judge a judge let it said in adler is that there are two different kinds of property one is a chosen action and one is actually money in hand and the government charged my client with the friday mr a n of the money in hand and not his chosen action and thus they did not charge him with the they could have they certainly could have or certainly back in denver they could have charged him with so easily with defrauding the court back in denver submitting something that was a false representation through the mails back in denver but the government chose that to charge the case here and they chose to charge it in a fashion that i think is controlled by the four circuit case directly and which was not under min in which he said in essence that what my client did was interfere with mr alba reno's right to collect money and what in essence the district court below was saying is that my client interfered with mr albritton those chosen actions and you that's not what my client was charged with in this situation and so insofar as tell me who he said there is a chosen action when one them deals with tax laws it is not relevant case and i don't think there's any argument you've seen in my brief at some length that mr georgian's own beliefs with regard to his his rights of possession were legally incorrect and undermined by the other evidence that the government presented and so in light of the fact that i have relatively low life time left and would like to save most favorable to the government drawing all reasonable inferences in favor of the government whether reasonable fact finder clude have found that mr albert leno had a property interest in at least a portion of with the fact that he was a judgment creditor of mr george sent to mr alex individually he had obtained the confession of judgment from both of those gentlemen and he had filed it in california court where both mr george  everything possible by getting the judgment of filing the judgment in california filing it in colorado going to colorado and getting the charging order giving him a claim in any money coming  a corporation doesn't have anything particular claim or a claim to any particular proceeds especially under the circumstances where i had done nothing to ensure a payment out of the proceeds in this case we have  entirely different situation where we have mr alba reno as a judgment creditor not of a corporation but of individuals and if you try and he has taken action to secure paying that from those individuals by operation of california law he's entitled to payment out of their personal assets and the government didn't introduce evidence during the trial that money number one was due out of the sale to m that they fully expected to receive some of that money because they were creditors of wilderness twenty eight l l c and in fact at one point the whole point of the permit otherwise i think they were indictment he must have planned sort of all goes together if there was money or property in the ordinary sandstone and there was evidence of it then there wasn't a constructive amendments and sort of go together but if there was no evidence of evidence for a rational juror to have found that that mr alvarez you know did have a property interest in the actual money and that is in fact what judge prior found in his in his written ruling and we said that that was not what our client was charged with so that would be essentially adding a charge to the indictment that was not there and that's what we meant by our argument with respect to a constructive change in the indictment with respect to the adler case there seems to be of course some issue as to whether or not it is actually distinguishable and i submit it is not on the relevant points adler we remember is the case in which print gear went after a company and the company came into those and sued them and in fact  right to the extent that they sued and successfully got a judgment against the company and the company came into possession of money and then essentially did things which were much worse than mr joyce and they lied to the creditor about where the money was going and they paid it to themselves and then they were sued a commune triage with wire fraud for saying that you you took this money and hid it from the creditor and thus committed wire fraud because the creditor apparently had rights to that money and the four circuit said no they had no rights to that particular money the money the printer got is no different than the wilderness twenty eight money that mr george then got now the government said that well that involved a company that makes the case even less persuasive because mr george and received the wilderness twenty eight proceeds as the manager of wilderness twenty eight in the government went to great lengths to prove that and that's how they tried to charge him with defrauding the investors so the fact that mr albury no had a personal judgment against mr shorts and makes it even