c the chinese bank that was operating in london was the company that issued the loan to mr brennaman they are not f d i c insured and under the statute that a company in order i don't i don't believe that there was any evidence that morgan stanley was defrauded of the money the money's one part part that morgan stanley investment l l c is also not f b i seed insured but there were allegations money passed through morgan stanley but respectfully your honor that the the chinese bank i d c c that was the bank that brought the civil case that was the bank that was in you know for the purposes of this soley that doesn't meet the statute well let me let me ask you what your argument is exactly because if i understand it correctly the jury was instructed and the summation focused in the bank fraud case on morgan stanley in precisely because of the f b i siege insured element so is your argument that the evidence was insufficient to support a verdict in addition to the constructive amendment in the indictment your honor because it says in the indictment bank one which is i don't know i understand can we put the constructive amendment aside just for a moment and let me add a how is the evidence insufficient as to morgan stanley because the loan itself never originated the fraud itself never originated with morgan stanley i t c are you not in the government that your client nevertheless benefited from the fraudulent statements he made because morgan stanley issued in my own special credit card one person from the credit card operations referred him to investment personnel of morgan stanley that he would not otherwise have had entree to so that the government's argument was that insufficient it's a matter of law well as as as a matter of morgan stanley and with the government arguments those those arguments regarding morgan stanley and getting a credit card is insufficient doesn't meet the burden that they need in the proofs under the statute under the elements of the statute so your argument is morgan stanley defrauded by offering these services absolutely judge and what what case would you ask us to look to as precedent that that would not be enough for fraud that he would get a benefit that he would get a credit card that required a credit level or credit standing that he had to lie about to secure that he guy gained entree that i'm not aware of the case in the judge and i apologize you know but i can and not to digress from your question i'm not trying to avoid i just don't i i don't know what case i mean i'm not you know i just don't  indictment and that wasn't that was it was just bank one was in the indictment it was snow they say it was as an example of banks deferral and so so you know it's like saying you know so conspirator and there's so why is that pleading not enough to get to save them from your area and some constructive amendment argument i  with an example the only thing i could say judge is they knew they couldn't prove i c b c and this this all came about during the trial well was before the trial because you had discovery and you had three thousand five hundred material right also you know they focused on non monetary potential losses to morgan stanley morgan stanley did not lose anything whatsoever you know to give a credit card to you know someone to talk to on the phone about investments and you know maybe to be put up to you know high level manager you know i don't think that that rises to the level of bank is there any other questions on the brief from the well i was trying to get out from trying to get at the fraud perpetrated on morgan stanley and it's very amorphous in my mind well but i'll ask the government you arguing there was no fraud perpetrated against morgan stanley zachariah that is correct ok then why don't we you have reserved three minutes of rebuttal from your here he did actively receive a loan from the bank by getting lines of credit but he did not get any money from the bank if anything but we had news that the credit card and he had the bank account at a lower rate so particular financial advisor who ran arm and dealt with that threshold is approximately one million dollars so the misrepresentations that render mn may get access to the lines of credit in the lower rate than the credit card were material to getting access to those accounts for example if you have or if i had to spend the record you never got the loan and there's no evidence that he relied on any advice from this private wealth advisor is there i mean i understood your theory of the case was that his dealings with morgan stanley were not to secure credit card it was ultimately to secure a much more significant well and that never came about i mean i understand your argument that he got enough benefit that you couldn't pursue this is a fraud case but am i right that your  approached them in order to have sam klein ads the same kind of things the been trying to use i c b c four right that was a component of it after so how so rad christmas is does not really pertain either because they are the defendant obtain the loans he was that was the whole object of the fraud the question here is whether you sufficiently clue bank fraud when you show that the bank gave him incidental benefit maybe it was talking big and so they thought he was going to be that the kind of customer that they would give this special credit card to g other perks to isn't that really what the evidence showed here judge reggie i would not describe the benefits as incidental even though it was part of a larger scheme to obtain even larger benefits something that had nothing to do with the team to obtain money and property here to be sure the morgan family benefits were one step along the way as part of a larger overall theme throughout their whomever took the next step was never taken was a challenge well not for lack of trying he was introduced to kevin bohn break it and misrepresentation to him and tried to initiate discussions for additional financing but morgan stanley was fairly that the new boss rule the misrepresentations and asked for additional material and because the defendant didn't have it and what fraudulent statements did he make to morgan stanley that induced him to do that i understand they were going to give him millions without doing more due diligence but what what statements induced them to give the credit card and the special access to the investment advisor yet judge reggie so in order to open those accounts and to get the credit card as a financial advisor testified he had to make a showing of significant net or an ability to pay and so he made a number of misrepresentations including and written application to the wealth management arm in order to open  an attempt to execute a scheme to defraud and so the fact that ultimately morgan stanley didn't rely on his misrepresentations to give him money in the end isn't what is decisive in the end  with respect to be constructive amendment argument the fact that this bank fraud with respect to morgan stanley was part of a larger effort to obtain financing for the business is part of why honor's i want to let you know that morgan stanley smith barney l l c which is part of what we're talking about is not an all is also not insured with f b i see and that's barry gonzales and it's at three hundred and no wait to one thousand three hundred and ten and i think that is really critical and what what i believe if that is what the prosecution has presented with the morgan stanley that is judge that's on the reply page seven and it's the nd paragraph last full sentence you know the rule about arguments made for the st time in reply br believe that's in the in the other brief two but i just was looking at my reply brief but i could try to go forward i think it's also you say to him page seven of your reply brief yes page seven of the reply brief  in the in the paragraph the nd paragraph from the top the last sentence now is that relevant i'm sorry is that only relevant to the investment advice i don't know what the government was saying the credit c insured then you say the morgan stanley investment to sion was not correct but there's no no development of that argument as to why if morgan stanley was insured we would treat its investment division separately there's no development of that as there believe there was a trial in the press to correct me if i'm wrong  ok it is in the in the original brief your honor also on page thirteen the top paragraph on page thirteen where it's where it says the investment division the division that mr brennan was actually dealing with but you know i would certainly back yes i'm sorry so your argument therefore be then we should not consider the access to the exclusive investment advice as part of  bank fraud because it was obtained from a portion of morgan stanley that's not in the eyes insured what does that leave you with in terms of the rest of the argument terms of sufficiency just crossing the line that the credit card was issued by that the i c insured bank a part of morgan stanley that was empty and she insured right but there's no evidence at trial that the credit card was issue based on the initial i c b c fraud does it you know anyone could go into morgan stanley in which he has you know you know he has the you know all credit you know we had to credit the number i mean anybody could go in and get a credit card so we feel that if you are not not the credit card your client points well we have to deal with this i mean it's it's not some big fraud that they're saying he didn't ten did but it's like getting any number of credit cards that have different gradations you have to have you have to meet certain standards to get some of the some of the more prestigious ones and your client lied about various things that would if he had told the truth would not have made him out documents in which he reported earnings and assets and status in this country and that were was false if he had told the truth they never would have given him this credit card that's the argument ok that's our now why is that insufficient data to end of fraud at least to that limited extent it may be it may be judge i did not review you know whether they were there were lies on the credit application or those applications i was more focused on the five million dollars loan from the chinese company which is you know why he received the one hundred and forty four months in prison i've been your focus now is that there was insufficient evidence against fraud to morgan stanley those were the statements he made to morgan stanley and now you tell mr you don't know if they were true i mean i thought it was pretty clear they weren't it was  then if they're false and that's what the government you know says was the entire bank fraud you know i think you know i mean i'm not the court but i think that's a little you know what they did here w using the the bank fraud allegation and you know the five million dollars was you know if the fraud was the credit card and then they using a five million dollars fraud judgment to try to get this chinese bank back the money by saying he got a fake credit card you know i mean i don't have any lawyer on that judge but i just think that is that's  and it does sound like it's a triangle upside down with a tiny little fraud whatever on the bottom leading to a very big judgment at the end