this court to vacate and remand for a new trial we've also raised a separate issue regarding his sentencing strickland claim regarding the restitution order that in the alternative to mitt requires this court to remand to reset and i will start  it's it's a strickland claim regarding the restitution order and as the case what we cited i think shows restitution orders don't go to one's liberty and thus are not cognizable in a twenty to fifty five p b s petition just ask you i mean obviously the other reason i thought you might have been doing this as an ineffective missive council is very simply because mr lebeau agreed to the total loss figure of a one million council shouldn't have allowed it into the ocean of signify that agreement perhaps it gets around a waiver issue but the natural question is you know counsel may have advise lobo to agree to this because that's where the facts were council may have thought that it was frivolous to approach it otherwise and you know one it's a holistic process for for the lawyers so maybe you can talk about that a little bit of course i'll start with the way requestion i think i know as a warrior i'm supposed to be longwinded but i think the answer is simple in that you can't wave constitutional claims as as a defendant at a sentencing  why not people wave things all the time their constitutional claims if you there's a number of cases we started our reply be talking about different aspects or issues that come up in the course of a sensing hearing including in clear grievance where people expressly waive which you're entitled under the th amendment then that really undermines everything and so i understand that part of the theory but if that the reason we so discouraged is is because unlike for example in the state courts of wisconsin there's there's no way to probe the council's thinking and if you just look at it on the surface it doesn't a well about the i just want to point out that restitution of course you were brought up the loss of money and whether or not there was what it was strategic or something along those lines and in not making an objection to the lawsuit there's no challenge there was no challenge then and there's no challenge now to a loss and we're just talking about restitution and the case we specifically cited and the argument flows from this case lead us and specifically whether or not a bank or wonder if some other entity is properly considered a victim within the meaning of the m r u so it's separate and apart from was but to your your most recent point i think it's fair to say that there's no there was no objection and to the to the restitution that's that's the whole basis for the deficient performance argument we're making and there's certainly nothing in the record in and of itself that is what established any sort of plane air what we tried to do and i think successfully i would submit success we did to demonstrate that point is we supplemented the record demers the alleged coast schemer who was tried and convicted in a separate case his sentencing here right so your theory is because judge cheney did think that there was some reason that the bank wasn't intitled to restitution perhaps this judge would have thought the same thing i did say maybe yes maybe no the judges are entitled to come to different conclusions and my own sense of the record in lido says that it's our sensing the government and in essence conceded the point they specifically called alito with a difficult decision to reconcile right they they made a number of other isn't that a legal conclusion though we can read radios for ourselves of course but when they say reconcile they mean reconcile with the facts in the one at issue here and i want to be clear to you about the fact that this is this is absolutely the same exact scheme i mean this is as close as we can get to a petri dish of a parallel proceeding and wondering what would have happened instead of being left guessing generally speaking about whether or not there is prejudice i think the fact that there's been a finding and what i would argue is a concession from the government in a separate proceeding that yes this restitution order was wrong or incorrect is is about as close as we come to being near certain of course under strickland we don't have to be near certain right we just have to find piece that there's a reasonable probability that that the defendant was projects and i think that this certainly establishes it and there are a lot of facts that that were put on the record and shyer sentencing hearing that that do go to that point but i wanted to step back and just be clear to you about what i was saying i mean this is i just wan highlight that this is even though it was a separate case this is this is the water from the alleged scheme it was the same loan the same modifications to the loan the same alleged mr representations i couldn't answer why they were tried in separate cases that's for other reasons presumably and it's it's neither here or there but it was the exact same scheme in one instance there was an objection made in another there wasn't but you know i'll just throw out one difference between amcor and the bank and lido switches that these forbearance agreements are accompanied by payments of significant amounts of money you know ill gotten money as it turns out but i'm not sure the bank had any reason to know that so the bank is lulled along here into thinking that these people just need more time they need for barron's certainly i would i would just add again the government didn't make any such arguments and agreed that mcor was not blameless in terms of their actions and what happened and going back to the facts of the matter the bank year despite despite the payments in order to bodie the codefendant had only declared her only paid one thousand dollars in income taxes and actually declared a four hundred thousand dollars loss over the next two years they knew his financial condition worsened and then actually that there was a seven there were seven hundred thousand dollars in the means a huge increase in the interest expenses that were forthcoming on the wall that was all before the bombs started falling behind and as it did fall further behind and further behind the bank then ignored the advice of its own lawyers and it did allow the dollars and in any event despite all of that i again would come back to the standard under strickland specifically prejudice and that if we had a new sensing hearing i don't i can't say for certain what judge going to do in that instance but i don't have to we just have to show that there's a reasonable probability and i think given judge saini fighting it and also the fact that there was in essence a concession from the god that that that standard is met and we've made  i'd like to argue on behalf of brian bodie that st of all he was not at that or he was the guarantor on the original law and the government filed it indictments some three or four days prior to the expiration of the statute of limitations a true bill was returned and the and initial indictment was brought before the court unfortunately on the eve of trial we learned that the government filed a motion and they college student terms of in an abundance of caution we're going to front this to the court and what they front into the court was that they had whether intentionally or inadvertently or mistakenly they had presented to the grand jury documents suggesting that mr bodies personal personal financial statements were false well as it turned out those personal financial statements were amended prior to green lighting the later turned out to be not true was because i am poor bank had been in receivership and the new receiver had somehow mistakenly turned over that document purporting to be the actual personal financial statements of mr bodie so that the long of the short of it is your honor that i believe that this court and the court below had no jurisdiction over this case because the relation back theory under dollars to ninety three dollars to says yeah if there's a mistake or something inadvertent or something that could be corrected the government has six months to bring a superseding indictment and they did bring superseding indictment that was brought up and they argued well we need more time to see what the superseding indictment is about and as you know in the superseding indictment they use  information that did meet the statute of limitations moving forward with that yet that's what confused me about this argument because the superseding indictment soca says on mr bodies role in the forbearance agreements were that's correct in the ten year window don't see where from from mr bodie as opposed to mr laval i don't see where this is reaching back in appropriately at all well because if it was a super  about these personal financial statements when we're looking at the forbearance agreements because the forbearance agreement relates back to a loan that was not appropriate to bring in an action against mr bodie to begin with but there was something independently wrong with the forbearance agreements i think it's the government's theory and they are agreements write their agreements but they are forbearance agreements that he acted as the guarant and there's no issue that as the guarantor to the original loan agreement the forbearance agreement had its own problems but you can't bring that as a superseding indictment if it's if it can stand on its own then the government was required to bring a separate and diamond trius separately or even if they didn't want to try it separately at least couch it in terms of this is no longer a superseding indictment this is a completely new indictment and to relate back to the old issues of what happened prior i think it put mr bodie in the way in a disadvantage to be tried together with mr lebeau so that that's your objection and the fact that if s the case then they can wait a last minute on every single case present whatever evidence they need to to save their clock and then bring a superseding indictment because that's exactly what happen here but the question is is there anything part of the original bad loan and quite frankly there is no regional bank loan fraud when it comes to mr bodie so anything that you add on in a superseding indictment is surplusage as far as i'm and for that purpose i have to agree with you that there is that there is false statements made i'm not arguing for that purpose i'm reserving that under the sufficiency grounds but what i'm saying is i think that the government it's unfairly being rewarded in presenting a document original document that was false should have known to be false to the grand jury we don't know how the grand jury would have fallen say if the grand jury had ten items and this last one item is the one that kicked it off of their table i don't i'm going to just wonder whether they knew whether it's fair to say they knew this was false it seems to me they may have been mistaken about who actually controlled i forget what it was you know the wife's assets but people i mean this is this is something people have to sort out as you learn about a case sometimes people comingle things with they could lay back anything even even false statements or venture that's basically if you affirm their their their their their theory of the case that that that that the court had jurisdiction over this then  indication that was a product of good faith well i mean we normally would assume that is our background assumption until somebody told us otherwise i mean i don't walk in and soon that the government is always lying me this was bad evidence and that's how they had the original indictment returned i get that but to move forward to a trial on a superseding indictment for mr botti where it should have been completely different a but that it was not part and parcel to his statements as as as as funding the original loan and greenlighting the original loan yet that's what he kept coming back to when we know that that wasn't a false statement so we have false statements to various other actors we have the underlying premise that mr bodie was the one who was actually making payments that he was out of pocket two hundred and fifty thousand dollars so it's not your secure regular false statements it's somebody who has actually has skin in this game you know oftentimes and in deciding these issues we say we look to see who has actual skin in the game who has actual  material to lose other than their good name or their good reputation in this case mr botha paid two hundred and fifty thousand dollars out of his own pocket to try to keep this forbearance agreement moving forward and to say that well because you know the original loan was fraudulent and those statements even though the personal financial statements of mr bodie turned out to be accurate that nonetheless to say this loan these people went by these people i mean the two defendants went ahead and conducted themselves improperly post hoc but a lot of your argument seems to depend on assumptions that when all was said and done mr bodie was an innocent participant in all of this and of course as we alluded to a few minutes ago the jury found otherwise the jury found that mr bodie was in fact engaged in this scheme to  with the lawyer so i mean can you if the verdict stands on a sufficiency ground i mean these are just charges that the government had to prove they're not just charge judge they were so they were part of a superseding indictment that related back to the original fraud against and for bank but if we decide that the superseding indictment stand on its own two feet then we're left with your argument that there's somehow a difference between a indictment and a brand new indictment even if they're both comfortably within the statute of limitations usually worry about superseding indictments when you've got to relate back to save a statute but i don't see that you have to do that here as you know my argument is a little more nuanced than that ok and the nuance is if you have t people who are moving forward under the same superseding indictment and one of them is actually saved and relating back to the original crime how does that not spill over to mr povey how is that humanly good morning your owners made please the court i'm kartik rahman i represent united states in this appeal i'm going to start with what we just heard from mr bodies attorney on the statue of limitations very briefly  mr bodie isn't correct that the superseding indictment was time barred all six counts that charge mr bodie in the superseding indictment alleged executions that were within the ten year statute of limitations  chief judge would refer to it as comfortably within the statute that it's entirely correct that is what happened here so hysteria seems to be that you've leveraged the superseding indictment in a way that permitted you to conduct a joint trial mr bodie and that you couldn't have done that somehow if you hadn't if you had instead just gone out and gotten a new indictment exclusively against mr bodie if i understand  his argument correct i think it's incorrect st and foremost your honor that you'll recognize that there were very similar charges brought in the original indictment it was streamlined after the return of the superseding indictment the charges became narrow or not never expansive the charges with respect to mr bodie the earliest crime that he was charged with was the july st two thousand and six letter to the proceeding indictment moving on with respect to the point about abuse in the grand jury st of all there's no evidence of the record that there was any abuse in the grand jury if any issues w government knew it was false the government did not in fact the record indicates that it was literally before the trial that was scheduled on the original indictment that an amended authority of amcor bank was discovered in the file of am course lawyer and so to avoid having a trial on the charge that mr bodie had somehow claimed the assets that were owned by his wife the government presented a motion which i think you would expect us to present to stop the trial and to conduct further discovery which is what we did and then based on the review of that discovery we determined that we would not pursue charges against mr bodie concerning ownership of his wife's assets and the rest of the case though was very much the same the as their positions you deleted a little bit from restitution to the bank you know is because the bank was a direct victim of of this crime was mandatory and there's no basis to conclude here that the bank had done anything in terms of participating in the fraud or had unclean hands as in leaders but what about i mean this is an unusual case in that the related defendant the lawyer shall i or have reprocessed his name was before different judge in the different judge says boy ever looked at the light o's case you know this bank doesn't seem to come to this with clean hands i'm not going to do that so that that's a fact it's just we respect sense if there is some reasonable probability that another judge would have viewed it also differently from the way the government views it then why don't you give that person that chance i mean the lawyer just sort of sailed by no merit there is no merit with respect to the argument that counsel makes because as i was saying the bank it's a direct victim of this fraud and it's a mandatory but you're not confronting the issue from light shows which is that at least in that instance bank of america actually is a rather harsh language in this opinion remember well bank of america was also in the same sense as am cor a victim and yet the court says the bank was reckless and it should've known about these bad mortgage loans and so on and so forth and then the court says restitution a reckless bank a dubious remedy indeed and and so the question is is this case governed by that rule yes the banks involved in all of this but has it in some sense forfeited the right to restitution because of its own actions no your honor the answer respectfully is no i think during counsel's presentation you mentioned that this is lead us was a far cry from what happened here the facts are very extreme and the facts were indeed very extreme alito says your honor will recognize there were a number of closings done over the span of two if i'm remembering correctly one week by the same individual and the reasoning in lido seems to be that the bank should have known that that had happened because it was the same the same personalities of the banks who are involved with the individual who participated in the closings but contrast that with what happened here where there was no one clean hands for example mr lobo intentionally omitted his outstanding personal obligations on his p f s as there's no evidence that the bank knew or should have known about that a bank witness testified then that the bank relied on what the defendant said on his p f s is including his false reputation representations about his assets and liabilities before the exten credit the defendants in this case also provided a false narrative at in order to obtain the forbearance agreement they said that they were developing this parcel and the bank relied on this to its detriment  in granting forbearance and then ultimately delaying the foreclosure process which resulted in it having to sell the property at a far lower value than had originally been purchase so so was i to do anything ever happen to this property and moves it was it just sort of sitting there is a health club that was unsuccessful when all of the your honor along with the record indicates that  they were supposedly pursuing a zoning change with the city of aurora or they were saying you know we are developing and were any plans drawn up to create a multi unit condo building or there was some testimony the record your honor that some basic plans had been developed a very early in the process but beyond that step there was nothing in the record indicate that the defendants did anything further other than trick the bank and deceive the bank into thinking that they were engaged in this vast project and that they had obtained all of the approvals that were required to do this and there's no evidence that the bank had any knowledge about this false narrative and or that it could have or should have had that knowledge the bank witnesses testified that the defendant's actions installing the foreclosure proceedings the quoting these false representations about this status of their development and the status of their discussions and approval from the oral people the the bank witnesses testified that this was significant to the bank to enter into the forbearance agreement all right so i have a bone to pick with you  which has to do with the materiality element because the government actually dissuaded the district court judge from including materiality element in the instructions given to the jury and not only dad but the government's grief does not even cite united states against nader which is relied on by the defendant which is the case if you go back and read it in which the supreme court flatly says materiality of falshood is an element of the federal bank fraud statute it doesn't say subpar one or subpart two it just says that and the cases you cite in your brief all predate the supreme court's decision in nader's so i don't understand that at all and it seems to me that if the supreme court has told us that there should be a materiality instruction then that's what we ought to do materiality is not required as a separate element why do you say that in light of what the supreme court said in nader which is cited in this room opposed briefs so when you sat down to write your brief it for his argument that there should have been a materiality instruction well as is the record indicated at the pretrial conference your honor the government's position was that there are two different prongs here but and why do you say that i understand that was your position i can even understand why you might say that if the supreme court had never decided nader maybe i would have agreed with you even but i am not comfortable saying to the supreme court even though you didn't draw a distinction between one part one knowingly executing the scheme and part two false or fraudulent pretenses cetera if they want materiality to be an element why don't we just go along with them i mean yes you can default to plane air you know is that is this something that's so serious it requires attention from from this court because i gather everybody agreed to the instruction yes part one and if there had been you know a paragraph or so in your brief addressing that i would happily read it that it wasn't there instead you rely on premade or cases it is true that we do rely on a pretty major case i don't have anything to add except i will say again that our position when this case was tried and when the jury instructions were the two thousand and twelve pattern jury instructions was that there were two different  brief in essence in a false statements cases charged under the nd prong it's necessary to distinguish between lies that are material and lies that are not material in the statute covers false statements that are capable of influencing a decision maker it shouldn't be you know read to cover irrelevant or immaterial statements the same risk is not there with respect to the st prong the scheme to frog plan although of course the  our position is that even if a separate materiality element were appropriate use instructions here were close enough and that the error was harmless as the court found and purple the definitions of scheme to the fraud and intent fraud encompass the concept of materiality no separate instruction was required i would add that the record is replete with evidence here that any error was harmless because the evidence heard by the jury overwhelmingly establish materiality no reasonable juror could have found based on the facts presented that the defendant scheme was not capable of influencing the bank it's at in their actions in fact there was lots of testimony concerning the mr lobo's false statements on his p f asses and how that impacted the bank in its decision making on whether to award him the credit and there was lots of testimony about the defendants making false statements on the status of the development and how that influenced the bank extending forbearance and ultimately delaying foreclosure to their detriment ultimately it's the government's position that the outcome of the trial would have been the same even if the materiality element was required but was committed we would wrap up by saying that mr allbaugh waived his challenge to the instruction and he didn't object any time and we join the judge specifically asks him right or are we can see the judge raises the material yes your honor because in our original set of jury instructions we had included a materiality element but by the time of the superseding indictment trial we determined that there were four elements not five but then the then the the judge has a conversation about that and then everybody says yes i agree that's correct your honor and based on that that's a waiver mr lobo knowingly relinquished the right to an instruction that contained a separate materiality element and that's the other holding of nater by the way that you are necessarily relying on which is that these kinds of instructional errors can be forfeited or waived because there that was one of the issues the court took the case to decide your honor your honors if there are no further questions i wish to wrap up by saying the government respectfully request that this court affirm the defendant's convictions and all right i see none so thank you very much element in the instruction and then here now i want to appeal argues for a waiver and plain or right that's there's two different things going on there and especially in the context of an instruction relating to an element of the charge which  it's essentially lessening what the government what do you do about the fact that counsel says yes i agree this is ok you know it's ok not to charge materiality that's about as clear a waiver as who object to supervised release condition that the other case kagyu juana was an entrapment instruction and despite the lack of the air being preserved and fine this court finding waiver it actually went on to address the merits of the offense i don't think that's something you can easily forgive but there's lots of evidence as mr rahman pointed out from the bank people saying we relied on this and this was important to us you know words that affected are the kinds of things you look for for materiality yes you are and i would just note too that if you look at the instructions as a whole something else talked about whether the concept was sufficiently placed before the jury which is the ultimate issue i don't think it was officially lodged in the superseding indictment and there's also the fact that the false statement charges would have had reference to material they did have reference to materiality so when you think about what the jury actually had at the critical moment but assuming they're doing their diligence the inclusion in one place and omission from another is probably  he was incorrect when if you recall their comments at the time judge saini considered leading that's considered the facts of this case and heard from both parties including the non objection from the government at that time so after making that decision she found  again as to the merits they talk about well there's all these misrepresentations here and there's criminality deals with the sentencing issues where someone's been found or admitted his guilt or her guilt and gotten to the point that criminality is presumed course there's misrepresentations the issue is not it's  what the bank knew and when they knew it and whether or not they're a victim within the meaning of the m r v and given that the only judge who's considered the question when it's been brought after hearing from the government has has found it the this bank not to be a  all right thank you very much then thanks to all counsel will take the case under a