had made a knowingly false and material statement in order to convict him of bank fraud and two did he make such a statement on first of offered to prove materiality because there's nothing the prosecution statement thanks for you should we more accurately kind of split those up and just determine for example in the indictment whether there was a requirement for allegation of materiality for a false statement and then finds those false statements made by king then goes on to find that they are in fact material and it's in the going of course mind although there is no specific i think really matter what he had to say we weren't going to it wasn't going to be material we were not going to honor his request so i under lopez which i think i've cited in my brief those statements by mr omer could not have been means that the united states supreme court didn't think now that was a ten fourteen violation maybe go beyond that and woods where we had on an interstate fraud scheme for millions of dollars accounting on magazine thing what we're talking about here is bank fraud there are other statutes obtain a conviction for bank fraud in a pure check kiting scheme where no false statements are made and he does that by misinterpreting neither and misapplying this court's decision and williams in meters the supreme court determines that a material false good is an element of federal mail wire and bank fraud statements or cases in williams it was a ten fourteen case and this court determined that a check presented to a bank is not a statement so it's a free for a good way to combine those two at least according to the defendant he's saying that the court did recognize and deal both of the first and second subsections of thirteen in forty four different substantially and in the woods case which has been mentioned difference i don't know that there is a difference at least in the way this is being presented to this court we did not charge mr o'mara with making a false statement and that that's the beginning of our analysis materiality allegation in the indictment judge i think that is a very good question in that how do you have materiality as an allegation without a false statement where  materiality in the course of a charging document like this one where we've put that word material i think what we've alleged here so efficiently sets forth materiality when you look at the entire scheme that or which fail to measure up to the reflection of moral uprightness a fundamental honesty fair play and right elaine role in this new slice of members of society and then of course this court holds these assert as a backup position here that that court was considering and talking about thirteen forty four to understand where we are in that is and that is to us where we actually do have to charging check writing in this case we set forth the details a series of actions by the defendants which clearly set forth the material conduct and i'm just saying are gathering from the court's concerns that that really is what the how what does that mean next that's the truth that the government has in this case is materiality with respect to what the scheme to defraud will be our answer it was a material scheme to defraud as we set forth occasionally that happens i think when you stand your argument thank you very much this course of tension first of all the thomas that i just cited from the third circuit but to the actual language of need or at page twenty two and it's it doesn't say thirteen forty four generically it doesn't say thirteen forty fo artifice to the prime language in and of itself must must include a false materially false statement and here the prosecution even either