good morning ron it's canoe johnson i represent the defendant appellant boyd taylor your honor there's only really one question in this case and that obviously is whether under these facts were appellant was retrieving his own money from a bank whether that can violate ten fourteen i think that the government has tried to shift the field a little bit and claim that we're arguing that we've added an element which is risk of loss which we certainly have and i looked at our opening brief we never once committed that claim we certainly didn't in the reply brief but the cases some of the cases do talk about risk of loss and risk of loss is probably the most important analysis that the court can do in determining whether or not what happened involved an application or commitment and then you're saying that you're not adding an element but that there has to be shown risk of loss well i'm not quite what the statute requires actually it may help to go back to when the statute was enacted it was to protect banks it was a post depression era statute they want to protect banks who are lending money for extending credit and so they said if you make a false statement in connection with a loan and all those things then or a commitment or an application it violates the statu but what is a commitment or an application to us now and it's it's pretty it may seem on its face hard to understand what that means it can't be anything it can't be if i go into a  bank and asked them for a parking spot and they claim i'm a regular customer and i'm not that can't be an application that violates the statute even if it's a false statement and i'm applying to the bank for a parking spot but in this case in every case cited by the government and in every case cited by the defense there was the bank committing its money for is in danger of committing its money or breaking a promise it made a liability like the bor in the case the boring case involved of a person saying to the bank stop payment on the cashier's check with a cashier's check was a promise by the bank to the person who held the manc who held the check that they were going to make payment so that the person applied to the bank to get the bank to break a commitment in this case mr taylor asked the bank for his own money and the evidence was absolutely clear that the bank didn't want to keep the money and there are two piles of cash called imaginary piles but it but isn't the cashier's check still a commitment by the bank it can be but that's not what mr  stop payment on the cashier chaff that would have been an application with regard to a bank commitment to make that payment but are you really saying that the lie has to be material to a banking transaction and isn't that well as hell does not the case   no i'm not what i'm saying is it's cannot be a commitment or an application unless it puts the the bank's money at risk in every single case cited every single case percentage has now you are sounding like you're saying risk of loss is an element that puts the bank's money at risk isn't that saying risk of loss should be an element and if we did that would be in conflict with the fourth circuit no risk of loss guys are analysis in what is an application or a commitment and that's my point of my hypothetical if you go into a bank and lied to them and ask them for some device sam a regular customer can i have a pencil i'm applying for a pencil and they give me a pencil and i walk out of the bank i don't think anyone's going to say that violates temp fourteen and ten fourteen it's pretty clear this has to be if you look at every single transaction in there alone a in the case is a letter of credit clearly putting the bank's money at risk there was nothing in this that put any of the bank's money at risk so you are arguing that there needs to be a risk of loss yes yes i think there are but the but that doesn't make it an element it can't be an a commitment without a risk of loss and so if you say that a false statement in connection with a loan we clearly understand a false statement a connection with a loan puts the bank's money at risk what do you think the jury needs to be told that there needs to be a risk of loss when when a jury is instructed about when you need to find to find someone guilty and it sounds like you're saying they do well if you are this the jury needs to be instructed what the elements of the and if the government is proceeding on sale alone that's that's a loan is clearly stated in the statute if it's saying a letter of credit probably don't need instruction but if you're saying th juror jurors this is an application we're saying it's a commitment and if the jurors want to know and if the lawyers want the jurors to understand what is an application or a commitment yes i think they should be told now put britain volves putting the the banks money at risk but that's not the it's not a jury instruction question here is was there sufficient evidence and in this case it is absolutely clear the bank's money was never at risk it was mr taylor's money if you ok so how about applying for a checking account is that an application well now probably not because you're not putting the bank's money at risk so what if you have them or drop protection think my answer to you might be that it would depend and i know that's not the answer you want but yeah i would probably depend but on the record we have here all we know is that he went to a bank and he wasn't charged with a false statement opening that bank account except for one count count thirteen that has to do with the the the church but the count of the ten fourteen counts had only to do with going in showing a driver's license that had another person's name on it and that he had opened the account in that name in opening the count was not the crime charge it was getting his money out of the manc and that can't violate ten fourteen because there's no risk of loss to out an application is not alone it's not a line of credit and it's certainly not covering a bounced check with the bank's money their banks money was never a risk in this case an please the court great after the ad states african fest i've got a little confused as to whether or not the defendants are going for risk of loss element so when i begin by addressing why the transactions that occurred here are commitments the forecasters checks transactions and in this court united states be borne explicitly recognizes that a cashier's check is a bank commitment therefore it follows that the defendant's false statements of his identity made to influence the issuance of those commitments are covered by the statute now the defendant focuses on the precise holdings of warren which was a stop payment request on a bank check is a commitment that i acknowledge that that is the narrowest most precise holding of boren but the problem is for the defendant is that you can't reconcile that holding with other than that a cashier's check is a commitment and by the way that's consistent with the general legal understanding of what a cashier's check is also can so i agree with you that it's hard it's hard to define a rule that would be consistent with boring and wells and also have him not be guilty but isn't it very odd that he is guilty i mean how in the world are the facts of this case what the statute is supposed to be about well because it doesn't speak in terms of a broad variety of transactions and is designed to protect the banks from false statements and that the bank wasn't injured no one was injured i mean he was prosecute for tax crimes and he was held guilty of those and that's clearly a problem that occurred here but in terms of the statements of the bank the bank wasn't injured the government wasn't injured no one lost their money what why is this a crime well i've noticed that the bank may not have lost any quantifiable deposit funds nonetheless the bank employees testify that they had of general interest in knowing their customer in order to ensure that i was that was the statute is about some people can say hello to the right person variety of institute and the bank employees indicated that that enters the circumvented in this case because they want to make sure that their accounts are being used to facilitate criminal activity which in fact it wasn't case and so that's a legitimate interest in of itself  moreover we have the bacon boys testifying about the administrative and the legal expense that they incurred in order to track down defendants fraud for example wells fargo investigator jerry johnson testified about the steps that he took to trace of the transactions between these frauds with council's fargo insultingly identify the defendant lee taylor we have the testimony of wells fargo attorney what triggered that what why did they need to do that that was in response to the defendant's request for a cashier's check for a long time so why all the sudden i started investigating that was in connection with that requests for a cashier's check the bank grads are at the at the at the appropriate branch realize that there was a lack of supporting documentation for this account that he had held jointly and homes in the names of james hollow in a church mount windsor church and so that was when the investigation began and that was when that bank branch manager contacted wells fargo investigator terry johnson and he began to track down all these identities so given that who is really investigator in this case and just by trial so in light of that investigative history i think it's important to to push back on a suggestion that the government here was just looking for some excuse to tack on aggravated any theft counts and look for some credit events in fact the banks by their own actions indicated their interest in the defensive very concerned about idea of course of course they are because they want to make sure that these accounts aren't used for money laundering or in this case activation as in fact they were so even if there were some risk of loss requirement for the statute which there isn't but if there were i submit that this type of legal and mystery of expenses the banks incurred in order to track down the project identies would satisfy that requirements and i would note that in the context of bank fraud section three hundred forty four this court has held that even assuming that that statute requires a risk of loss that type of administrative expense on the part of the banks would be sufficient to satisfy that but in any case the merits of the defendant's argument for a loss to crime it whether he's describing his elements or otherwise are as likely an illegal support that you do agree that the false statements have to be made in connection with their doing banking business and not requirements and imposing such a requirement would make any sense because it makes no sense to limit the reach of a false statement statute to a period of time after the event has already made false statements and he already has what he wants in this case your honors i think that the government's argument shows how far they're trying to push this statute and stretch it it's a very simple depression era statute and they talk about the silted in criminal activity this is a place where he kept his money under false names true but it's where he kept his money and no one else's money he wasn't running a ponzi scheme out of this and although the government may have an interest of keeping track of where money is in understanding that that's not what statute protects and in fact the government citation of stoddard is is very interesting because i'm going to quote from stoddard here the purpose of section ten fourteen was to cover all undertakings which might subject insured bank to risk of loss and that's what almost every case there's a may not be an element but if they if you look at the facts of every one of these cases there is a risk to the bank before they will impose ten fourteen liability and there was erode risk in this case because it was just to finish up a hypothetical i started or just a very simple explanation there's two stacks of money in the bank one stack belongs to the bank the stacked belongs to whoever put it in there and this came out through the testimony of the witness if you are reaching into or asking the bank to do something or put at risk that the banks stack you violated temp fourteen if your it's your own money you have not in the cases the horror cases in other cases make that point pretty explicitly about what does and does not violate tim fourteen for instance argued that crediting his own account would not be instant instituting or inducing it to make an advance loan or commitment is this case you're talking about in your brief yes what is the name of it or h o r d it's six f third to seventy six fifth circuit nine hundred ninety three it's also in the in the government bri or if it's not in my brief i don't think it's in your briefcase in the government brief and the court case made absolutely clear that some act that undeniably influenced the actions of the banks are not nevertheless not criminal by ten fourteen and they talk about deposits i think under hoard under stoddard under every case cited by the government there has to be some risk to the bank there was none here thank you thank you get the case