this case in the white most favorable to the government the proof a trial show that mr nicoletti and others submitted one applications bearing false information with the intent to obtain money belonging to  mortgage michigan l l c which at the time in two thousand and five was not a crime under the federal bank fraud statute in two thousand and five this rd mortgage michigan l l c was not a financial institution question in the evidence as to what that relationship is your mr clitheroe was the primary witness but presented by the government he was an employee a th rd bank and he described the relationship of the bank entities at the time the rd mortgage and i'm speaking in two thousand and five was not a federally insured depository institution but was a mortgage lending arm of their held accounts at the rd bank but otherwise the evidence is not entirely clear there were there was there was some evidence that it was a subsidiary but as this court knows that is not enough to five with respect to these transactions mr klippel didn't offer specific testimony about these transactions he didn't have independent knowledge about these particular transactions so yes that their mortgage had accounts that affect their that's the issue here and because of that there is no all of that all of the evidence pointed to mr necker leddy's knowledge that he was dealing exclusively with th rd mortgage doesn't it go one tear back isn't the question where psystar mortgage money came from sister bank so on that point there was the government points to the testimony of mr klippel which again was not specific to these transactions just as to the general practice in two thousand and five the government points to two official checks that were drawn on a th rd bank eastern michigan account that funded one of the loans that was discussed at trial that mr nicoletti knew that the that the property that they were seeking to obtain was in their own by a financial institution or in the custody or control of a financial institution that that was not happening at the time any fraudulent argument in briefing about so your honor that the the exhibits that were provided to show what those two official checks were indicated that they were drawn on bank accounts held by th rd bank eastern michigan that to my recollection recollection and knowledge is the only reference in the testimony of the government witnesses about that particular entity  there was no there was no connection between what was presented with the two official checks and mr clipless testimony about what all of the th rd entities were what educate me on one more issue were those two chicks were they from this eastern michigan placed into consolidated account in order to fund the mortgage or w which is that the certified checks yes the to checks from the buy were very a to mimic the to mimic the  purposes of finding the lucy alone and again your honor put your finger on something there indicating that for all all that mr that point was that th rd mortgage was funding these loans with its own money of course because they were the ones to whom all of the representations had been made to they were the ones by all appearances had made that the funding decision the decision to make the loan we knew about the affidavits of occupancy that were submitted in the loan packages that the rd mortgage indicates in those documents that they were lying upon to make those decisions and that the mortgages themselves the security the nd prong about has to be proven that the the money being obtained must be obtained by means of some sort of misrepresentation and the misrepresentations at issue at that point and in the in the transactions are not those that lead it any entity to part with its money the misrepresentations had already been made by way of the bank the bank loan applications and so when you get that far downstream why isn't the wire the cashier's checks those are misrepresentations like you're taking what is supposedly a buyer down payment money that's actually won't proceed money so you're misrepresenting where the down payment is coming from right well again the what the you know when you go back to the supreme court case and law friend the court and that case  emphasized that that by means of language is intended to be sure that there is a connection of course to the federal the federal interest and what the courts that and  that the loan excuse me that that by means of language has to have some real connection to the federally insured back if the representation and the loan right i'm using loan proceeds to make these down payments the transaction would have gone forward because the bank wouldn't have said well wait a minute we need real down payment money there would be just forgotten about it it wasn't a misrepresentation at all i mean  would love to get that kind of house you know are well it's not that it wasn't a misrepresentation but that wasn't the misrepresentation that caused the lending entity to part its money that had already happened why is it all part of the same scheme i mean if you don't make that representation you don't get the you don't know the mortgage company says oh wait a minute i'm going to lend you the money right all of this stuff has to grow the title company at the same time to him to get the purchase price down for the property right i mean if you don't get that mr presentation you don't get the proceeds at all well the because that the lending decision had already been made my position is that at that point it was the misrepresentation on the front end about the source of the so it's not a breach of contract if i may go ending decision and then somebody misrepresent something and i say well whoa whoa i'm not going to when you get money like that's a breach of contract i'm i have to when you the money at that point based on your it doesn't in the sense that me sure the closing obviously is is a is a continuum i understand what you're saying about that but my point is is that the the misrepresentation at that is that must be proven is the one that caused that causes the lending entity to part with its money and that decision had already been made ok any further questions and you've bennion is pretty clear and it seems to me that the mere fact that somebody has an a k out and about is not and not the type of custody that we're talking to show that the in t n was to get to fight money and that's why i ask him who funded the mortgage money because that might be the connection you need if you  between the entities that were involved we have the same subsidiary parent relationship we knew though as trial counsel that banyan was pending before this court and we wanted to avoid the issue about the reliance of subsidiary parent lation ship so we proved up affirmatively that this money was in the custody of th rd bank at the time that the loan applications were made at the time they were dispersed to the continental title account which was so how do you change it to money and since rd mortgage company which is where all this went on was actually fists rd by next money not just in their custody not just in their by pay the money by means of the postie whim or one of the false returns which i want to which i want to get to because i think it answers the court's question but again and i underscore there's no requirement banyan or otherwise not the money that they obtain through the broad scheme belonged to pip rd mortgage the requirement is that the money was in the house the of their mortgage plan if you accept  was not if her mortgage but was at least in the custody in control of that rd bank the courts already covered it in the in the opening session so the st i would say the st evidence using so he was using proceeds from what he thought was the mortgage company using the proceeds to get the cashier's checks right will be deposited those checks the funding checks into his bank account all of the other loans were funded through direct wire transfers into his but account but those two charges are the ones that he had to have no came from the bank because the name of the bank was on the checks now with respect to th  your concerns your strange and banyan is concerned to limit the scope of that in response to a defense argument law print that this will make all frauds that the funds were tame by chuck a the limit that the court rejected the idea that we had to show an intent to defraud a bank but instead said that by means of clause was a limiting clause and what the court said was context of the facts of that case quote by means of language is satisfied when as here the defendant's false statement is the mechanism naturally inducing a bank or custodial bank robbery to part with money in its control fully defined what by means of required it just said that the facts before this case qualify it had significantly and i don't like reading from case law and i apologize for the court producer ignace but this is a significant in the clause additionally demands that they defendant have a specific intent to deceive a bank which would kind of indicate that the specific intent to deceive the mortgage company in this case if did that in the course of this fairly elaborate broad scheme involving many accomplices involving many false statements to different entities in the course of that scheme false statements were directly mr nicoletti and or is accomplices that caused transfers of funds between between different accounts at the bank so those false statements cause transfers of guns in thank you in the light most favorable to the government the proof showed that mr nicoletti and others submitted one application specific bearing false information with the intent to pay money that belonged to  about the custody and control the government pointed out as i mentioned that they would to the two official checks i would also point out that the government also offered exhaustive testimony tracing these fin there was lots of testimony about a total of six transactions for five of those six transactions all that all that is known about where those funds came from was that they were transferred or they were deposited from  th rd entity again i go back to the to the the entire premise of banyan which requires that the intent element to be established requires that mr nicoletti know or at least be aware or he found himself in the position of going to the bike and getting a certified check and putting it into his from the bike not some mortgage that on the buy and putting it in and the tile companies in order to complete the scam is that not sufficient to take it outside your outer the that as i was explaining in my earlier argument to me  goes to the question of the missing misrepresentation being the mechanism that causes the lending entity to part with its money and that decision had already been made by the misrepresentation of mates that their mortgage and the rd mortgage was the one exercising that discretion as we don't know anything about how any otherwise any of those representations may made its way to th rd bank until much later in time after the funding decision had already been made by  the financial institution to part with its money are there any further questions you know now we appreciate this is a an interesting text and we appreciate your briefing which was good and you