pending appeal i want to belabor to those points i think they're pretty well set forth in our motion i also won't really belabor that mr weaver is not a flight risk i know the government put up some so a little bit of opposition to that but i think that  are six most of which are fraud convictions and actually what i want to talk about today is the substantial question concerning be expressed concern contractual disclaimers on the fraud conviction now i think that this doesn't dispute and we know this in a footnote in opening brief that mr weaver was sentenced to sixty months even though the guideline range is zero to six months and so if you find that there would be if there would be a reversal or a new trial on the fraud counts  would almost certainly necessitate a reset and seeing on the on the false statement because there was no explanation provided for why that would be higher but to get back to as to all the fraud counts the argument you're making about the disclaimer of danes to all of them that is correct your honor and and we do think that this is that this is a question of first impression in this circuit the government does not dispute that to be sure there is no reliance element in criminal fraud however neither this court nor the supreme court has ever said anything about whether express contractual disclaimers can nevertheless preclude fraud in particular because of the materiality elements of criminal fraud and as you point out in our reply there are a number of courts of appeals that discuss and i  the common sense relationship between between materiality and reliance and if i can like to point out the juxtaposition between what this court has said about reliance and what the supreme court has said about materiality and fraud context so this court's leading case on the alliance is the the grumman case which we do cite in this court has said we're a party specifically disclaims reliance upon a representation in a contract that party cannot in a subsequent action for fraud assert it was fraudulent we induced to enter into the contra by the very representation it is disclaimed now that's reliance what the supreme court just last term said about materiality is the following misrepresentation is material only if it would likely induce a reasonable person to manifest his and sent his assent or in the same opinion a misrepresentation is material if it will induce action by a complaint party knowledge of which would have induced the recipient to act differently so at the least we think there's a very substantial question and that by the way is the united health services case from last term the site is one thirty six supreme court nine hundred eighty nine so we think that at the very least as other courts of appeals have recognize there is a substantial question concerning this relationship between reliance and materiality such that al though there may not be a reliance in a criminal fraud case there is materiality and the effect of the relationship between reliance materiality comes to bear when you've got these sort of very specific express disclaimers that every single customer signed if i may in my remaining time i just want to talk about some of the government's arguments on that point they do not dispute that this is a question of first impression addressing first of all sufficiency of the evidence argument but more important the keystone of the seconds of the seven circuits decision it was a statement that well the misrepresentations must have been material because otherwise why would the the defensive have said the you know with all respect to the second circuit i think that's a obviously a very circular argument that doesn't really answer the question that would be before this chords and again as as has been pointed out you know it is it's not our burden at this point to you know after a full briefing  the court will have it on behalf of the united states to begin with your honor's initial question it is true that mr weaver's burden at this stage is to show that he's entitled to either a new trial or acquit questions and i you know our argument does not rise and fall on the question of flight risk i do note that after trial or after finding after a conviction is the defendant's burden to show like owners did in seeing evidence so your real argument is that there is no substantial question that is right and i do point out your honour's that mr weaver has presented those arguments on appeal but did not present those arguments to the district court the district court didn't have a chance to pass on those arguments the government have a chance to respond and so but i'm happy to proceed to the question as you chief i only note that those arguments normally when a defendant does not raise an argument below those arguments are used for and by addressing them here you're not acknowledging you're not conceding that there wasn't a waiver or a forfeiture of those that's right but moving to the question as to whether or not he raises a substantial question on appeal i do note he has to make that point with respect to all of the count conviction and i don't think he's done so here even if the court thinks that there may be such a question with respect to the fraud counts but going to of the fraud counts i think that what mr weaver is doing is he is trying to import the standard for justifiable reliance which is an element of civil but not criminal fraud into the materiality requirement and every court to address such an attempt has rejected it and the seventh circuit did so expressed it did so express case it also did so expressly in the case that we cite in our opposition which is ross bean and there judge easterbrook said and i quote that the supreme court has excluded reliance as an element of criminal fraud and so it will not do appellate judges to roll reliance into materiality that would add through the back door an element that is barred through the front door and if you just look at the standard for materiality the standard for materiality is not whether  victim was justifiable was justified in relying on the misrepresentation is whether the misrepresentation would have the tendency to induce to influence the decision making and what this the way that this court put it and its own bank decision making is that is the question is whether or not if the truth had been told if the defendant had told the truth that would have a tendency to affect the victim's decision making and here there is no question there can be no doubt that if the victims of this fraudulent scheme had been told the truth about what ben starr really did if they had been told the truth that these machines more essentially worthless that they have no hope of making money there is no question that they would not have entered into the congress to do that i agree that you don't have to go that far here but i think that that is just the truth and that is what is reflected in the record and i note that the district court in rejecting the argument that mr weaver is presenting here today said that the evidence of his guilt on materiality was overwhelming and we think that that is absolutely right as to m points out that this is a question of first impression in this court and you know i guess what i would say to that is that there are many arguments that are made for the first time in this court of but that does not mean that those are close questions and that is the standard that the court applies is whether this close is whether the court could reasonably come to the opposite conclusion and here i do not think that there is any real question of whether or not the court could come to the opposite conclusion as to this if there are no further