am just a united states attorney victor rogers appearing on behalf of the plaintiff united states of america in this case may it please the court with respect to the government's appeal of the district court's ruling granting summary judgment bank fraud statute that's issue number one the second issue is assuming that this court disagrees with the government's position as to the breadth of the need to repent here is a lower court error in determining as a matter of law there was a lack of materiality with respect to the activities of antonio medina in connection with his attempt to multiply an initial seven hundred thirty nine thousand dollar deposited at bank of america when he instructed that thank the winds transfer the money which was written in spanish and in its native language spanish of the check for three hundred sixty five dollars somehow he persuaded first bank of boston to give them immediate credit in the sum of three hundred sixty five thousand dollars and he because that there were difficulties in various processing departments within the bank if you why you transfer exact money to england that was an actual bank fraud case this is an attempted bank fraud case in our particular instance i would never believe that that type of scheme would ever be by attempting to pass the check it down the savings on july one two thousand without first canceling the instructions that he gave to costa mesa branch of bank of america was attempting to double his money and that attempted bank fraud theory under eighteen u s c thirteen anybody to transfer the funds overseas so he decides to move it to another bank and i'm sorry there's no suggestion that he wouldn't have cancelled the order to the bank of america at the evidence that i would point out the first answer i would give to that question is to the extent antonio medina had move for some reason on the grounds that there was no evidence of intent the government of all of us the other evidence we would have offered is let's look at  tony anderson now if all he wanted to do was withdraw the funds by shaq antonio medina should have could have walked through and through the opening close to mesa branch of bank of america with a check payable for seven hundred thirty eight thousand dollars on june thirtieth at the huntington beach very frank debate of america and then i was alive once in two thousand at a different bank altogether and also remember that when he is arrested on july one two thousand he is carrying three additional report also indicated and that is the basis for our argument that neither peter did not impact in any way conduct alone schemes to defraud we've already indicated in our brief that the entire purpose of the inactive inspection check party for under ten fourteen which prohibits the making of a false statement to the bank and williams the court held that the presentation of a worthless jack could not be considered as a statement to be true or false so therefore under you want to describe this check check kiting can be a situation where sometimes that involves two banks but it doesn't necessarily involve two banks were in individual creates an artificially high balance in his or her account to make it appear as though funds which are there are not in fact there in order to keep the scheme afloat and individual keeps having to keep must continually write checks against two different accounts to make that artificially  gallants appear on the books we cite the cases for example where party goes out sends a check has a check for twenty seven thousand dollars to buy stock with that twenty seven thousand check twenty seven thousand dollars check on bank account one  to process that check because downie savings believe that there is sufficient money in the account because bank of america is controls are not sufficient then he does create an artificial balance and the difficulty in connection with that is understanding the distinction between  that's a question of intent whether or not we the government can show that at the time of the scheme at the time that he tried to present the check on july one two thousand r and if you look at paragraph sixteen of this declaration which is on medina indicated in the letter that bank of america told her that the transfer would take place when the verification of her identity was completed before on july three two thousand whichever comes first g e r fifty three bank of america's letter july three two thousand indicating that it was still attempting to obtain verification information as of that date again that you like three days after july one when he was in the check it down so  specifically in addition to the meters conclusion that there had there was no showing of materiality made by the government in connection with all the various representations in the missions and problems which form the basis of the scheme  especially construction cases which indicates that determining congress intent is paramount i think it's clear that neither does not mandate that check kiting schemes are no longer actiona hearing on the motion for summary judgment the only issue to trade as of this time is a question of whether specific representations or omissions are required to make out a claim after the government after the court on june twenty seventh two issue reason that is important is in connection with raising that material out ality issue no evidence is offered that any of the government's assertions are not material as the court knows in order to move for summary judgment on the grounds that the plaintiff cannot establish an element of its cause of action being the movement bears the burden of the initial burden of production of evidence on that point and the ultimate burden of persuasion on a summary conduct because according to june twenty seventh two thousand two hundred order indicated that representations for specific discrete emission for require the materiality issue does not come up until very late in the day and no evidence is offered to s the information the government's relying upon is not material out the government even so the record is replete with a number of items which can be concluded to be material under the objective standard of material well he had to because he presented himself essentially by making a representation that i am not tony anderson he presented well  an affirmative misrepresentation but if the court does not agree with that look at it as the fraudulent failure to disclose important information what is the definition of materiality materiality can be determined objectively and it can be determined objectively and show if they are reasonably prudent they would consider the information or the information had the capability of influencing it what are more actions of a reasonably it is our position that that is not a very high standard armed with the information on june sixteenth two thousand that all parties to this contemplated wire transfer were actually sitting together in the room it would only be illegal if it was portable some type of a scheme to defraud if if the only activities are whether or not you have to disclose his identity in those circumstances my initial response would be i do not believe that he would have to either of us or but if you try to multiply his deposit then i think he would have to begin disclosing information and in the context of this case where we had prior banks who had difficulty and work are you willing to assume the wire to tony anderson in spain in part because of the question of the identity of this deposit or antonio but bina then in that watch criminals so far here is the evidence with respect to the additional bags just so the record is clear the government did contend that antonio but dina who went with the life bank and just on the bag was in fact attempting to double his money at sun one bank the government the court below indicated that the government could not rely upon that evidence because the government did not allege a scheme to defraud sandlot bank in the same after they would not give him immediate credit and wire the five but the question becomes whether it would have been the end of the story assuming that he did not cash the checks if they had wired the funds and he did not take the next of those that were wired but recall that in attempted bank fraud case and you have to look at it in that context the one with successful here and that's why it's a little odd to look at the facts and say how could you possibly succeed in connection with the scheme i didn't go back to my assertion that i can't believe any of the schemes work but they do and the only reason as far as the government's concerned at the scheme was unsuccessful was because he was apprehended midstream on july was otherwise we believe that skin would have been successful but those are all issues that the government bears the burden of proof on and would have to persuade the trial the fact finder at trial that medina possessed the requisite intent here we're dealing with the question of materiality and what is materiality me objectively it means whether or not holding a court's decision the district court's decision and neither the court did not require the government to to provide proof of an affirmative misrepresentation court gave the government a choice affirmative misrepresentation evidence of a half truth or evidence of concealment of a material fact which is the government's theory in this case so there should be no issue agreement in this case because the good the government actually presented the the government did not produce any evidence showing that the bank in any way with finding porton as to who the percipient of the wire transfer would be and the court found it out to be significant the government has america they were just he was just trying to transfer his money overseas and that was it he was frustrated he went from one faculty used to do it and who knows why the banks used to do it in the first place  the bank account with the sister at bank of america got power of attorney over the counter given by a sister in front of the bank of america vice president of the bank of our american vice president says that mr medina can do whatever he want wire funds not after he went to dallas because he pressed the press wire remarks to do it back america refused to do it they just didn't back and at that point in response to my deposit some money in each out and then you write a check on that account open another account with it write another check on that account and that which is all of that same amount of money and open another kind of there and so now you you've got the same the original not of money which is very low and has made it two or three times that amount of money when it the money never existed and in the first place but that extra money and this is nothing like specifically to get them to to to wire the money and then test the chap so in this case if you look at the facts and the facts are are the record here and whatever you know  i know the government racist well it doesn't matter whether it was possible or not but it's not an issue of whether it was possible enough because the fact so the banks actually went through the process of these checks in this case and mr medina was all along well aware of that because the bank in each case refused to credit the accounts and mediately they put a hold on the accounts he knew that the banks were going through all these processes so it's not a weeks months whatever you don't carry seven hundred thirty nine thousand dollars in cash everyone knows i think it's the court would recognise the simple wire transfer verifying that the money is in the bank going through than the but the other bank directly that day or within a couple of days is very safe and that money is available right like it's it's it's brought up after the fact in argument and it never was what the government was alleging which brings us back to this case it's not a case it's never a case of bank fraud was always the case but allegedly he used a false social security number and were told we didn't tell the truth about how we used the social security card so we'll come up with another theory in this case and try to see if we get the money this was if you look at the fact that's exactly how they play out in this case they're just grasping at straws trying to find a way to thousand and downy quote without rescinding being instructions close quote he had given to the prior bank so that isn't a complaint with respect to the timing of when the government first conceived of this theory we needed to put very clear that the theory was first conceived in and tony on the drina never argued in his papers that the government had not established the element of a bank fraud scheme requiring quote an intent to defraud it's not there that wasn't part of his moving papers wasn't part of any portion of this case the issue materiality of the victim is irrelevant subject to materiality is not a component of a scheme to defraud based upon need or because the scheme to defraud statute protects in complete fraud as well as complete fraud the question of actual reliance what impact it might have had on the bank it's not pertinent but i would also add that with respect to bank of america we did offer evidence that bank of america considered the true identity of tony andersen important because we offered evidence that a bank investigator a fraud investigator spoke with angelus medina and asked her ms medina do you know that your brother uses the alias tony anderson and she said no this was the individual tony anderson whose name was on angela meant to say that materiality is determined objectively based upon a reasonable person standard not not based upon the subject whether or not the recipient would consider the matter of course based upon the need or decision which held that actual about antonio medina knowing that bank of america had closed the account as of july through two thousand there's no evidence of that in the record in fact he didn't find out he testified that he didn't know about this until september of two thousand when the money antonio edina to represent that as of july one through thousand he'd leave the bank account had because it's completely false but remember that the issue was the rejection it was materiality whether or not any of the omissions could affect any action or possess the capability of affecting any action of the opening close to mesa brach a bank of america viewing that under a reasonable person standard i would still make sure either the question of whether or not michael's painting has also been submitted to the larger and for the day