the court cornell in behalf of florida shall subsection one and two of the federal bank fraud statutes are materially different while subsection two broadly covers by its plain language schemes that aim to obtain money in the custody and the control of the bank subsection one more narrowly includes schemes that aim to defraud the financial institution i want to tell us a though he was living with his girlfriend who happen to be the daughter of mr shoes employee mr she lived abroad and he had his bank there was he was a rich guy he was a rich man and he had his bank statements sent month after month after month to the the lion's share of that actual loss pay pal which was the third party non bank entity which shah used to essentially effect the transfers out of bank of america pay record is uncontroverted that bank of america never lost any money washington mutual never lost any money and neither bank in this particular setting or the risk of loss because  recalcitrance in reviewing his own statements on the one hand and pay pal's role in in allowing the outgoing transfers to occur it was almost a perfect crime  impression in this circuit although ten other circuits have opined on subsection one the question here is what an intent to defraud a financial institution means for purposes of subsection one whether it requires nearly as the government contends proof of an intent to deceive the bank or rather whether it requires proof of an intent both to deceive and sheet the bank in other words an intent to deprive the bank of some property interest which is shaw's contention and is also the position of seven of the ten circuit that have a pined on this particular issue the government has never contended at any point in the proceedings and does not contend on appeal that it has shown proof of shaw's intent to cheat the bank and therefore this court should reverse understand it correctly from wrong is that is that he never intended to expose bank of america to any risk of loss right that's the factual premise of your argument yes your honor it's a little broader that bank of america did pay out but then they will reimburse by pay pal no your honor that that was the i think the with was somewhat muddied in the papers but as set forth and in our reply brief actually that record is uncontroverted on this point  to sue in fact bank of america when it got sues paul simply passed the buck to pay pal pay pal mediately understood that it was the entity that had assumed the risk of loss for that sixty day period  legally the risk was pay pal's and not the banks but that doesn't go to his intent to put the bank at some risk and he was trying to get the bank to pay out money to the wrong person judge when was going to be that in terms of the actual loss of the risk of loss and these kind of complicated issues that only matters to the extent it's circumstantial evidence of intent here and i think they're the second circuit's opinion  is very useful because what the court there says it was a similar type of scheme where the appellant aims to get third party money by deception of the bank and there was actual testimony that the bank had lost money and scheme was to get mr shoes money and actually if you look at the facts to the extent what is a what what are permissible inference would be in this context it would be that shoe was not attending to a statement that mr shaw in fact and to drain the account before mr xi would ever even realize that the money was gone and in fact it did play out largely that way because shoe was left holding the lion's share of the loss to the extent you can you can and i think this would be impermissible speculation but to the extent you can say beyond that if he if he were to of thought that there was an entity who would be responsible which with that entity be well i think the permissible inferences to the extent there is one it would be pay pal and non bank because pay pal  the one that allowed shaw to open the fraudulent account and to essentially transfer transfer the money out but in this setting the government could have developed the evidence that there was an interview of shaw well listen we've got a at the government's witness washington mutual witness at page four twenty eight and both the preceding pages and the subsequent pages but there and i did want to just reserve a tiny bit of time for a bottle but verify the government's own witness  it never testified that that that with that washington mutual in this case was placed at risk of loss and in fact said in general as if the bank if the account is open fraudulent need to begin with we are not going to be at a risk of l instructions were with respect to intention frogger correct this is the model language three seventeen which has been upheld by this court in trouble and should see it is also the model jury instructions in the third fifth sixth tenth and eleventh circuit essentially what is circus but as i understand it that is any circuit ever interpreted the two sections differently with respect to the risk of of loss interpreted the two sections differently one and two we have to say that there is no such requirement in one section but there is in the i know the eighth circuit there's as he's called staples in which it said that it's interesting why the first the first section didn't mean risk of loss in the pages fifty one fifty two the government lawyer in arguing before the supreme court said specifically we disagree with the tenth circuit precedent that says you need a risk of lawsuit or one and went on to have a discussion with the court about what would happen and this is where if you read the entire context of discussion you see what's happening is they're saying the court is asking government well what happens if we do what you want to bring the defrauded element from one into two where there are where the money is i mean that's that's all that the defendant knows and i think that law for makes this point a lot of says that we don't want to pay for it isn't about this you know trying to know exactly what sixty day rule is and what this other rule is and who ultimately bears loss we don't want to get into they are the brunt of the loss in this case several things one is mr the defendant here didn't know mr shoot from adam he was getting these manna from heaven bank statements but all he knew is there's money in the bank and he  quota somebody you have long someone but he certainly didn't seek out to target this person he didn't seek to steal this person's money over that person's money he wanted money that was in the bank and he created the pay pal as a shill and normally when in the old days to get money out of the bank if you go up to the bank teller and pretend to be somebody or he was using pay pal as a mask to pretend to be somebody to the bank the bank was the goal here and that's where that money was  d secondly there is a there's a real dispute between the government and defendant about what whether or not anyone actually had a risk or had an actual loss and with respect to the sixty day rule that sixty day rule is a moving time period every time the defendant lied to the bank and said i'm mr hsu i'm the elder mr shaw i have a right to this money that sixty day period is moving right along with him and in fact when  the victim and mr hsu in this case notified his bank bank of america that very moment that sixty day rule says bank of america you are at a loss you owe this amount of money to the defendant and that's the point at which he noted yes they turned around and got the money from pay pal and some from well from washington mutual but the fact that they were able to get reimbursed doesn't take away the fact that they were at a loss at that moment and it the washington mutual witness was saying that washington mutual wasn't at risk of loss it was over and that's not correct if you look at the entire record at page four twenty eight she was saying we wouldn't be wouldn't suffer a loss because we would be reimbursed and i think that that's the sort of thing to be looking at all along is yes they may not suffer an ultimate loss because they will be reimbursed but the case law with respect to bank fraud says over and over again just because you're reimbursed doesn't mean fault of the bank if you have the fault of the bank doesn't make it not that make the defendant not guilty we don't look to see if the defense if the bank should could have been a better bank to see what the defendant's guilt is in the matter and one of the things that i wanted to talk was it seems to be the defendant's main argument that sections one in two are substantially different that points to me and says they are substantially different and therefore any case law with respect to two in this circuit because if there's a substantial overlap and if all of the arguments with respect to why risk of loss are not appropriate to subsection two if isis actually gets put in the government to charge him under both here yes why do you have any idea why didn't i wasn't the charging prosecutor i think it was a concern about the additional misrepresentations that are required of a subsection to i think that that's not i think we could have overcome that that question but i think that the issue  am given the design of the scheme sous abdication of his responsibility to review statements pay pal its role as a nonbank third party and city it is sufficient to say that this there was not the well known exposure to loss that might