value one statute does not involve using the on statement in order to her property and it also you mean can i ask a question on that can you give me an example of how you would violate the in a business context between parties and only the property of the teams by any sense only later down the road at some point in time the property is dealt with the person deals with the property as his own and doesn't dispose of it as required but at that moment in time and the property isn't disposed of as required there is no file for representation but basically you if you get the in time the board decision or would that be a misrepresentation fact because you represented that you would deposit it in then you didn't the possible i mean you're saying that didn't exist the is not inherent in the initial design right is that your position right and it's not and the dictionary presented the court with three holist decision that came to that conclusion and there's also one stops you with just section forty three  the board doesn't get to leave things off the table on the chance that that you know if we prevail on appeal they can come back to get a nd or rd or th bite at the apple in order to meet that in order to affirm the decision  believe that the that the board is precluded from addressing the issue because it was it was really at that level and the is that fraud at that moment in time when you don't do what you're supposed to do it is fraud or i and all of those three cases no it doesn't because you are missing the key component of fraud you're missing a false statement which the person to part with their property you may have deprived the property owner of this property but you did apply them by that i think that the holding in those cases is the holding that that the case the answer in our case also doesn't require that there be any false statement which you do says the property owner and without a false statement in order to cure the property you don't have you also don't have pride in this case because to which you are not not otherwise entitle and in that case it was personal identifying property whether or not that constituted a benefit and the court concluded that it didn't have incurs no identify than this one because i don't really understand why someone would keep property that they weren't even less it was a benefit of well john think is a good example of that and in that case a bank employee who is responsible for making the deposits for the bank and sixty is categorically a crime involving modern two moral turpitude because the statute requires a defendant to make a false dame to another and the defendant makes this math misrepresentation to accrue something of value use of property as her own as she otherwise would not be entitled the board conducted its own review here so the scope of review is limited to the board's decision and legal subject to skidmore deference  determine whether the conviction was a c i m t it looked at the bomb statute identified the minimum conduct that had a realistic probability of being prosecuted under the statute that the statute is acknowledged to m c dollars to three dollars and it found that's criminal liability in the statute is triggered with two elements same chemical elements that were actually in her plea agreement in this case as well one  person obtains property subject to an agreement or legal obligation made in the course of business and two that property is converted to her own use and she failed to make property disposition as required by the agreement where the next in that under the false and miss it is not a hair in the statute i think we all agree that here not yes your honor however the board found that it involved inherently fraudulent conduct where the definition from this court requires there to be a false a making a known false representation to another and that they gain something that value and the statute here  the party holding the property to intentionally decide at some point in time after making the agreement that they will no longer dispose of that property as agreed and when they make that decision and don't say anything to the other party that  video game that has that on the shelf for two years on a stick and i say you know what no one flying this thing i was going to bring it home i'm going to play it over the weekend and i may come back and put it back in the box no arm property from work which i'm not supposed to do and not paying for it to do that eventually i home and normally if i worked in a store i wanted something bring it home i'd have to pay for it in some fashion either read it or or buy it and i didn't do either of those things i just brought it ho mean just looking in the statute of frauds see i am teased by this court it meets the elements the elements for that and then if you were to look into i think whether this is referential conduct which is another way i guess your honor to define it the c m t end of the generic definition i think you could go to the guidance of the the model penal code which kind of addressed this issue how they wanted to distinguish from default that should be assimilated to staff for nonperformance and this is not more than mere feature a breach of conduct their intent behind this was to punish more than mere breach of conduct additionally i think your honour's they're the ones the case that this court is to wanting the lynch the credit card fraud case and in that case they specifically rejected the argument that a fraudster by you know being able to pay pay they property at a time under consent and then later you change your mind and your interest if that property and decide to keep it for your own use the full statement your honor is the commission that is the statement the statement the admission that you are no longer going to dispose of that property as required by the agreement is mere commingle you know funds here is not prosecuted but you not only have to convert to your own use but you have to fail to make that property destroyed addition as required by the agreement again we have two parties here who voluntarily entered into a business relationship or a fiduciary duty and there's harm here i mean there could be harm as you know in this case specifically you know there is a harm legal property loss so there could be a property loss but not only is there a property loss but there is a loss of trust between the parties because of this i have no doubt that if we were allowed to look at the facts of this day i think  that no your honor no your honor i think i think one case came up it was nothing i mean it just the statute itself came up i think it was like a punishment or something nothing related to this at all i think obviously on the on the actual statute this and there was i mean i did not find it popper's ition but i i do think black's law which i may have cited in my brief but the general definition of a statement under black's law i believe your honor includes a statement of an omission i mission can be well your honor i think it meets at the basic definition from this court to be in fairly fraudulent i think counsel relies on linders gonzales as the case that supports that and your honour's this that case is distinguish from this one and that particular case the court stated that the statute did not quire their intent to defraud because there was no tangible benefit in the statute itself it actually said could be used for any unlawful purpose where in this circumstance it's it's a single syllable because the defend it by the plain as a statute that the defendant himself must convert the property to his own use he's not using the property for any unlawful purpose but he's converting it to his own use additionally one another distinguishing from that case says it only there was also key flaw in that case as well indicating that the equal fraud unless there is a duty to disclose act that has been omitted now that duty for example a lawyer has a duty to his client the tell them x can change whereas or for example there was no busy  way made you do what are right because of the of the relationship when the parties like that work and i was well your honor i mean that they actually if the statute itself requires subject to an unknown legal obligation or in the course of business and i think both of those together imply that the statute that there is if you do share relationship here between the parties you're up to three minute mark yes  your honor and again i think petitioner also argues in this case that it lease and there be brief that detrimental alliance is a separate requirement from this brief benefit requirement from this court's tangible benefit but i think your honors if you look at blanco and windows gonzales and even the most recent case a cardenas case none of these decisions specifically say that detrimental reliance is needed to prove be proven in addition to a tangible benefit  case was argued that every time the that you didn't do what you were supposed to do with the property in that case it was using the company credit card if you gas your own car every time you did that you made in this representation and the court expressly rejected that rationale saying there is no self representation there's no false statement at the time you use the card you're not concealing anything from your employer the border is not relying on anything that you ha contract and that's going to be the challenge with this with this statute which is distinguishing the fault that should be assimilated to staff from nonperformance from not which is traditionally left of the remedies for breach of contract so i think the courts right there is