that leaves us with the key question of timing whether the wire fraud statute criminalizes obtaining money innocently but later retaining it after the fraudulent intent develops i hasten to add that it's not the only question of the mail from statute let me deal with their argument about the two clauses first and of course this is the argument that the first clause of the fraud statute criminalizing a scheme or artifice to defraud establishes a separate before he even obtained the property the conspiracy and actually started in one thousand nine hundred three the conspiracy to take the wall street journal's property and give it to the brokerage graph after that intent after that deceitful inten occurred is when wine and wrote his own columns and then gave them to the brokerage firm so each time you turned it over to the brokerage firm each time you actually wrote the article he had a fraudulent intent and each time he turned it over to the or property by false pretenses but cleveland and mcnally both did not deal with the timing issue i started a number of ninth circuit cases which cite the element to be proved as obtaining money by obtaining money or property with a fraudulent intent but i think it's fair to say that none of those cases cited the obtaining versus retaining issue either i think what we're left with commonsense approaches one is yours which is a plausible interpretation another plausible interpretation is that the obtaining occurred when he put his hands on it put it wherever in the bank account that he put it in but he didn't know fraud occurred until he who was originally a victim of this scheme would develop the intent to deceive himself and then put that money to his own purposes and fail holding that the license to operate poker machines didn't fall within the scope of property rights and both of those cases there and that we will not expand the reach of the federal fraud statute which could plausibly put anything within its scope unless there's clear congressional language that they intended to include this in mcnally there wasn't clear congressional language because of the obtaining money or property for fraudulent pretenses well i think the same thing is true here your interpretation is certainly plausible i think my interpretation is plausible as well i think under mcnally and cleveland the court is compelled to apply and going back to general and coming to that conclusion if it wasn't completely clear from the mcnally opinion that they rejected that interpretation it's certainly clear from the dissent which criticizes the majority for rejecting that interpretation and then we have cleveland thirteen years later in the year two thousand in which the government once again makes the argument or scenes that there are two separate crimes then of wars combining them in the just john just and cleveland said no intent to use this money for his own purposes and thereafter makes a series of false statements related to the use of that money for his own purposes and i think it's fair to say that  really there can be sort of to put points in time where there is money obtained he takes that money he holds it and whether you're calling it a legal fight you shareef duty honesty ston promised he had it for only one purpose and at the point at which he starts to use it for his own purposes he's committed that fraud and he's now walling people into the fraud by making a series of statements very after in terms of what happen and fourth article where he turns them over in advance of publication but when he gets the information for the first article did he conceive it at that point that he received that out at the time of his guilty plea were precisely the elements that we're arguing about here is he is minutes and i believe that's it you are seventy one after the call a query with coun one the first monies and that is the fraud continues until the following year on and i believe it's through february at least of two thousand and two he obtained mon and it talks about the fact that if your bird if the money spent it is not on clarity that i would prefer to be in front of you arguing  that he should have been able to withdraw his plea if he was operating in a sense in a different framework even though he's operating in a mistaken framework in terms of the elements well your honor i don't think that i mean i guess to answer your question i don't first of all perhaps not take answer your question i don't think he was not grading in a different framework  perhaps at best that he misunderstood that perhaps he had a nutritional argument to make at trial and in fact what i think is most telling is that the motion to withdraw