and for additional detail the sense is not to argue that the indictment was defective but rather to be able to show there was no factual basis for his guilty plea right now i'm i'm having a hard time with the two pieces of that sentence if it's if it's in fact the case that the indictment is not defective in count one because it does state the crime and it does know i'm assuming that if this indictment count one i should say were defective that is  frame let me frame the question this way are you saying that count one could have been challenged as being inadequate to state were alleged scheme to defraud then then that's that's where i'm hung up on your argument if it's adequate to state the scheme to defraud to say what he said in count one how can it be that there's not an adequate position is under rule eleven at the time accepting the plea the defendant in order to have a knowing plea has to acknowledge facts which constitute a crime is don't want to face getting kicked out of murder in the first or second degree and they know they were taken in for then they roll the dice so to speak what's wrong with the government's position on that well  we'll give you some additional time if you would like to as well a no risk of actual loss to the bank and there's no mention of attempts so i sort of had understood you to be saying your case hung on the v a credit union well were we mistaken i was i mistaken and understand now that that  that even if you strike citizens bank from that county it's still a valid bank fraud and it could have been charged in two counts but i want you to understand that the way this case came to me was in the context of mr repeller being prosecuted for another offense there was an immediate recognition by his counsel that this was always going to be a plea we just never got there and mr webb telling someone very slow to recognize things well that raises an important question for me if you're in the courtroom with a defendant that has been sent away for evaluation so everybody is aware that there are some issues about mental acuity and honor and this individual says to the judge that there's sort of a standard colloquy preceding which the government and its proffer identifies the victim as synergy not as either bank no bank is mentioned as a and you then have the the defendant somewhat slow as you put  it who when they asked you what did you do that makes you guilty here says i defrauded these companies doesn't say defrauded the banks but it could be certainly read to be in the context of  ding the computer company that at that stage of things under those circumstances is here and an obligation on on the part of the prosecution  and on the part of the court certainly on the part of the defense to perhaps to say wait a second the victims here been identified a synergy there's been no mention of the banks's victims  was mentally acute not neither i nor the district court ever but the baggage that he was trying to sell us with respect to his mental condition this record bought enough to have a value in right well he was asked to have the valuation judged kind of boy out of an abundance of caution i believe agreed to do it but in the end did not buy their argument that he was entitled to a departure under the sentencing guidelines but what those evaluations shelf i mean he's thirty two years old and he has a history of defrauding banks whether it is by bad check or bank larceny or bank fraud by my count he has thirty seven charges but you'd agree certainly that the fact that he's got a record doesn't mean that it doesn't bank right here government's got an obligation to prove a case right charge and prove the case there's no question about that but to make it make a thought that this man didn't understand what he was doing is it just seems to  bank fraud is that even extending it now to the first time in the briefing and so forth you attempts that by giving the crazy routing numbers and giving  accounts which don't exist that that's a form that would expose that that's within the bank fraud statute that's your position right yes or you expect us to believe that there could be a part of the perpetrate a fraud but no bank if that if it ever came to them would pay ten cents and there's nothing in this record that indicates that any bank was at risk that they would have paid any money on that on a  numbers which are obvious to any bank and giving him checking accounts which don't exist now is that your position that you want to accept that as part of the  you asked if a bank had lost any money no but the reason the v a credit union the routing numbers were correct so i had a house at the credit union it was insufficient funds turned and it was thirteen hundred dollars for whatever reason if you are moving into an attempt what you're asking us to do is be satisfied that if someone gives a in a check on education funds or tries to have money negotiate through a this case how can it be an attempt when it would be impossible for any bank to pay i want is obviously a screwed up routing number and and  which doesn't exist well you know that doesn't negate mr with policing yet he gave routing numbers for reasons i don't know that they were not valid but i mean i can't say whether he knew or he didn't know that they about the computer company what what is it in the regular me ask it this way what is it in the record that you can point to that shows he had an intent to defraud the banks and as you do now i would like you to answer the question that i tried to pose earlier of what are we to make of the government's statement that the victim was siddur ji synergy wasn't wasn't indemnifying the banks was indemnifying the computer company so what are we to make they're going to say you should have paid from accounts that don't exist or you should have paid us from accounts that don't have sufficient funds and that's your obligation because we advanced goods without getting payment first you the bank are going to be out money you really think they computer companies would have had any traction legally or in the room were more in reality with with banks on that argument or the bank would pay the bank might pay but th the system jani is that when scott gave them this information it and this really checked out in their system that's why they sent the stuff out so all the computer equipment out it was only because of that error that synergy step who's that who sat out when  defraud the computer companies or through them or city which is left holding the bag but the banks well if i am a computer company and i get an application that indicates false and fraudulent banking information in it the intent there is to defraud the back how do you make that we must he doesn't know that cid or g is in place or that the computer companies are going to be made whole by anyone but if i get you a computer that would send me a question on the basis of banking information that i've given you and you've taken as valid then then i have defrauded you the poor foolish computer company but how does that extend to i have the fraud support i think what you're hearing at least for me is a little trouble understanding what you're pointing to in the record to show an intent to defraud the bank you keep going back to he meant take the money but it it seems he meant to take the goods equivalent to money and he meant it taken from the computer companies and he used false information to do it but how does that translate into trying to defraud the bank that's what i'm trying to get you to respond to and if you've got something in the rectory can say it's here this is how we knew intended for some or all that was to get the bank show me he take just for example the v a credit union the information he put down was accurate  when they sent him the goods that they would have gotten the bank would have sent them the money and it would have been killed it would have gotten out before the check was returned insufficient funds and in the instance that happened but he said three hundred dollars in the account i think the check was worth thirteen hundred but the companies got the check before it was returned insufficient funds and it was sitting g that trying to round that and made them whole they would have so so your position is that any time that you use that you relate to a third party information which facially looks reasonable about a bank and you fool that third  legitimate account that led to his check number in that account so it was more than just invoking the name he was he was giving them that as a representation well it was a legitimate i  that there was no factual basis the rule clearly requires a factual basis for the play and the only factual basis was the conclusion that he defrauded quote the company so how could we let plead guilty that's the entire case that mr badie has baby or he's not saying this is the spain is pure as a driven stop he's saying that he did not knowingly plead guilty to bank fraud and proceeding that even fake the could be considered a factual recitation of bank fraud all he says is the conclusion i afforded the company and there were several companies involved in this if i can how can we justify that why should we send it back for please i agree with you let me ask you this is it clear that both the account numbers both for the citizens bank and credit it's clear that all the account numbers that were used o you've indicated that you think we could look at insufficient funding issue and understand that there was an intent to defraud  that that equates with bank fraud under the statute those facts are in the sense of what i believe it does but if you i write you a check and i don't have sufficient funds in it and you take it to your bank you cash it you get the money away and the bank sends it to the other bank and it turns back for being insufficient funds somebody is out the money not you but one of the two banks because the check is honor think this man has a long record of fraud including seeking financial institutions with loss and that is part of the record you could reasonably