this case is a bank fraud case also involving counts of conspiracy to commit bank fraud i provided identity theft and attempted evidence destruction of the case is slightly unusual america were victims of a scheme to obtain property in the custody or control of each  they did not really have to do that they did not use it legally the law the even though the government accepts a higher a more demeaning burden that they did and the district court appointed that as well it did but counsel should be held to their considered tactical decision the issue was raised and we should be held to the statute you should but i think that the what happened in the trial for is is not something that should just be ignored because it doesn't in your to the benefit of the government way it made their decision on the road twenty nine after the first or argument there were twenty nine motion and the deficiency was pointed out to them and they made their choice  ht well and it was not relied on as a ground for the rule twenty nine motion it would have to be reviewed for plain error and in this court your honor  i do think that there is a major hole in their evidence with respect to p and c which is that they essentially show that what the scheme analysts comprised of essentially opening an account at p so in other words under united states vs or on this court held in one thousand nine hundred one that is merely having an account at a financial institution that is in some way there's some false information related to the the account in that case the account holder had opened it with a different last name he was it was on the lam and he opened this account with a different last name than his own he deposited money and then that case of course was just a bad check case checks and the bank of as eventually refused to honor the checks for insufficient funds but the point of that case really as relevant here is that that the mere the mere fact i think it's been the mere fact that there are some false information is regarding opening the account isn't ordinarily by itself enough was it images on his eyes and your word that all there was here as as to p n c i would argue that that that was essentially all they had the differences unlike in or it was a bad check case here we have the additional complication of the a c h network and the fact that as part of opening the account your clearly seeking access to the network to facilitate the scheme but i don't think that that shows that there was some additional material misrepresentation what route which would be required and prior to locker so again moving on from from p n c i think if we take the we have to take the predicate here that the government did have to prove all the elements as to bank of america and as judge when d which is when indicated we certainly agree that that case has bank of america is very difficult and in fact they did not meet that burden as to bank of america case is that the grounds that were not raised in that it was asked to an entire element of what had to be proved to to uphold the conviction the defendants had raised in their all twenty nine motion the element of intentional intentionality but not knowledge and here not all twenty i motion has been based on the elements well you you didn't challenge what you did was to raise the set but my concern is a little different i mean you raised specific ground in the rule twenty nine motions and you left out other grounds well there has to be a question of where do you draw the line what is specific and then if you don't assert the other our way why isn't that a pretty clean line to draw i agree that it is but in this case the the grounds that were raised were the sufficiency as to bank of america and the requirement of proof of actual or turning to the sufficiency of the bank fraud issue i think we've made it very clear that the argument which was raised below and we raise again here is that as the case was led as bank of america issue  incorporated throughout each of counts one through eleven and if this court does not find that the government sufficiently established that bank of america was exposed to an submit that's because the conspiracy count is still conspiracy to commit bank fraud which was still incorporated on throughout the indictment and that was in the in the instructions defense counsel at trial did not request that risk of loss was included it was specifically within the ins conspiracy instruction but it was argued to the court that the instructions can't be read in isolation from each other and that risk of loss is incorporated in that way thirteen fourteen or sub two so they had to prove what goes along with with that violation what what they raise what i understood them to raise is that if if they can prove conspiracy without proving a completed attempt  proving completed bank fraud then why should they have to prove even a potential risk of loss how could that how could that be required but i think that goes to the whether the scheme is is factually or legally  impossible essentially how can you commit bank fraud if you still are not if it's not reasonably foreseeable t o because for had for example suppose you know for a fact that the housing authority had in place that a c h block that we discussed in our in our brief that would prevent the evidence they're going to show that you know the block which we will have that form in the record but the testimony regarding what its effect would be suppose you knew that that lock was in place and it was impossible for the bank to be put to be placed at risk of loss then i think you still have an issue with the conspiracy because of how it is to corporate it that it's still not  fraud so turning to the aggravated identity theft issue again this is the incorporation issue i think the main issue that i like to point out for the for the core is that  acquittal or a judgment of acquittal as to whether or not the compound offense in this case aggravated identity theft could be up held whether the conviction could be upheld in the courts is clearly held that as to  if there's a jury verdict of acquittal the aggravated offense identity theft offense could stand but that's not the case insufficiency of evidence review and i think that's a point it's certainly not make clear in the in the government's brief but when you examine the underlying cases that that that is the case here and that this court could find that both should be should be vacated and the aggravated i don't eat that counts should fall it counts two  ball and turning briefly to the attempted evidence tampering arguments i think it's a rather novel argument the government can't point to any authority holding that the mere deletion of an e mail accounts account itself whether that account actually constitutes a record document or other object and when it's that authority and they also don't have evidence in the record that would allow the jury to do to the jury could only speculate as to whether or not there was e mail that would be fisher consulting was used as the contact email for the fisher net spin cart in the fisher l l c equity both of which were fictitious address used to log on to get students personal email why is that not enough from which a jury could infer that gets to use the e mails to perpetrate the fraud combined and we're likely to include incriminating evidence given the temporal connection between the f b i contact and there to police very briefly or there's the there's no temporal connection between the their deletion regardless of how they were used prior to that because it's the deletion that would be the evidence the only otherwise i think that are going to make sense ted the possibility that anyone could delete any e mail account any time to delete emails involving entities that were only aged lee associated with that fraud here's something from which it jury could dr that doesn't open evidence tampering up quite as broadly yes you have painted that's it i agree with the the the premise certainly this can be established by circumstantial evidence thank you then you have some time for a bottle get right to it your honor i think there are three bases really the first is mr hirsch's testimony at trial and this is founded page seventy nine of the joint appendix in response to the prosecutor's question of will tell the members of the jury about what happened in this case mr h said in september two thousand and ten i was made aware of the situation from our a c s department and this is the key point here they notified me that a customer of ours that is daughtry l l c was going to receive returns from bank of america it was large dollars approximately one point three million dollars that was going to be returned now that testimony when taken within the broader context of mr hirsch's testimony as well as the actual facts of what happened in this case makes it clear that that but for that money being returned to bank of america bank of america would have been out of that money they would have been left holding the bag so to speak and thus that was a risk of loss to bank of america so that would be the primary in the first basis america was about one point three nine nine million dollars bank ultimately was was victimized for one point one so that delta there is is unaccounted for and the reason it's unaccounted for is because mr hersh testified  and this is at page one eighty eight of the joint appendix that p s e recovered money from the banks where the a c s transfers have been sent the primary the number one recipient of funds from that fraudulent which is that net spend account for the second entity that received over three hundred thousand dollars from that dr e l c account was bank of america a quarter million of which went into that fisher consulting l l c account which mr gadget opened earlier in the scheme and was part of and i think we all just missed it so i do think the court case needs to go back to the district court purely for a ministerial correction of the judgment there should be no new sentencing proceeding or anything of that sort so that would be the second basis your honor for why bank of america was at a risk of was the third and i think there was an implicit notion of a risk of loss to bank of america here because at the end of the day the housing authority was a bank of america client and just in the very same way that p s e bank was on the hook for the sort of illegal activities related to the dockery l l c i think that the jury could reasonably even for the bank of america could be on the hook because remember the fischer l l c was a bank of america client so in the same way that the financial institution can be on the hook when controls in this case in the sense that it is a opinion of the supreme court decided when this case was on direct appeal so under henderson versus united states which i apologize we actually didn't cite it in our briefing but no dispute that under henderson  this case in a sort of theoretical sense right but you give me the miserable yeah of course sorry you're i let me get right to it the misrepresentation to back for america occurs in a couple different ways the first is every single time that mr gaston illegally debited fines out of the housing authorities account at bank of america he was making an implicit yet overt misrepresentation he was acting under the false pretense that he was entitled to that money  web representing them in the well that is i don't want to get caught up in that your honor i think the court can see it as implicit or explicit i mean the fact of the matter is he's taking money out of that account under the false pretense that he's entitled to it so whether that's an implicit misrepresentation or an expletive misrepresentation either way it's certainly materially false pretense which is the length of the statute certainly i think it meets that standard that's my first point my second point i think this is a deeper point i don't want to get too far into the weeds but i think it's important one of the pieces of evidence in this case was government trial exhibit fifty six and it said joint appendix seven hundred eighty six this is the fraudulent authorization for that mr  the baltimore housing authority he steals the name of the chief financial officer ms lin signs it uses his own phone number as the contact number this form is then passed along a c the first a c s relies upon this form to then take debits out of the housing authorities account at bank of america so this is a misrepresent this is an affirmative misrepresentation that he is rainbow when the c f o of the baltimore housing authority which is then through the bank of america by first a c s to take that money you know to authorize this is a three thousand dollars debit that would be the false representation your honor lawford it doesn't have to be made directly to the bank it has to have a relational component to the bank there has to be a reasonable probability that that false material misrepresentation will be conveyed to a federally insured bank and so  misrepresentation well i think the pretense under which the money is taken out of the account can be a misrepresentation and we've cited cases in our in our brief morgan sternness the second circuit case briggs is a fifth circuit case where the implicit misrepresentation that implicit authority of somebody to take money out of an account where they say oh yeah i'm entitled to take this money but in fact they're not is considered a material misrepresentation under water to the evidence that it was know the reason was the first case went two weeks and hung and we spoke to the jurors after him and i want to too far into this we spoke to the jurors afterwards and they thought it was eleven to one and the one juror who was not compliant just was very cooperative her basic point was it's too long and too confusing i don't which was certainly entered into evidence in the second trial and again supports a finding of a a material misstatement again this is mr gaston the jury found beyond a reasonable doubt that he's the guy who actually did this he must have known that this information would be conveyed to bank of america because the whole point of getting a third party payment processor is to get them to make the debits out of the housing authorities account at bank of america so  person like mr gaston is illegal deboning money out of an account he knows he's not entitled to it and not only does he know them this isn't an accident he has set up fraudulent enterprises particularly to steal money out of this baltimore housing authority applies in general terms to this case the defendant never asked for the the misrepresentation instruction of the court is imply is jesting now and that's waiver he requested a particular jury instruction in this case which was any materially false a misrepresentation in furtherance of the scheme so it doesn't even have to be to bank of america and i think our rule twenty nine response addresses this quite in substantial detail the law in the fourth circuit before  law for it was that any materially mis representation in furtherance of a bank fraud scheme is enough to satisfy that element and again this was never raised below the first time we hear about it is in his opening brief in this court which under the principles that we talked about earlier is w is that really the law as we discussed earlier and yet you can see that it's not only there but you can see this the fourth right now well in in canada the court hears the way that we have always seen this case it was a single integrated fraud scheme  let me do my best which is that the way that we had conceived of the scheme from the very beginning was as i say a single integrated scheme to get money out of that account at bank of america under the custody and control of you know bank of america the way he did it was a sort of integrated scheme first take the money out of the housing authority account and put it into this dockery l l c account and then from there funnel it out into fifty four different debit card accounts into different bank and a lot i'm not so sure the difference with any other type of scheme with two banks that were that were i don't want to say victimized because again in the law for really that's not the right term but to banks that were used to sort of unlawful instrumentalities of the offense which is why we put in the bank of america f t c certification right i mean if we were being strategic about asked for a different instruction which is any material misstatement in furtherance of and i think we've easily met that burden but the second question then becomes we then say it's human a plain instructional error and again maybe i should have dropped a footnote to henderson but that's what i was trying to convey your honor is even assuming a play we're not saying that you know there there was no error and then plain assume a plain error because law firm does apply if he hasn't waived it now again i think he's waived it and i don't want to sort of emphasis you know over emphasize that point assuming waiver putting aside waiver particularized claims in his rule twenty nine motion your honor he never questioned misrepresentation element he waived he said the only issue i have in this case is risk of loss so when he doesn't raise it in his will twenty nine motion your honor it is weight under chong lamb and  know this court and seven other circuits of hell that so i don't think this court even has to get into the misrepresentation idea and on sufficiency grounds because he waited now we're up here just on a risk of loss question focusing on the risk of loss question is that i pointed out three reasons why i believe again i think the jury's finding was was was reasonable here for why bank of america had a risk of loss in this case so i don't want to get hung up your honor i appreciate the questions and they're important questions particularly since law for has been decided and it did right well look and i tried this case i'm happy to sort of tell the court what was in the prosecutor's mind you know when we first had the jury instruction conference and you know i got up and said i don't need to prove to banks i want you to prove one and i'll tell you we thought about it and i didn't want to come up here and lose the case because i didn't prove a second bank because we do it we do name both banks in the indictment right and there is a sort of to it argument you know when specific entities or specific you know drugs or pacific firearms are named in an indictment there is a yes and you have a name i understand your honor respectfully you know again i obviously am an advocate here i don't think it's that difficult i think the evidence is sufficient to support both the risk of loss of finding to bank with erica international lost finding the fiancee bank i do want to touch on some of the other issues i do think the waiver issues are important your honor there it's not just a technicality waiver rules are significant for the very reasons that a number of course have pointed out you know there is some analog here to rule twelve of the federal rules of criminal procedure if a defendant wants to dismiss an indictment or suppress evidence he has to move before trial or will twelve be three and if he doesn't do it it's waived it is absolutely weight so the indictment is flawed or if the police acted blatantly unconstitutional and yet if he doesn't move to suppress that argument is waved and that's there's a reason for that there's sort of policy implication here that there has to be orderly prosecution there has to be sort of a fair way of dealing with these issues and i think the waiver rule is kind of in the rule twenty nine context as an analog to that if you have a basis there's no compulsion for a defendant to follow a rule twenty nine motion covering everything you can make a general objection and all of his objections are preserved but when a litigant gets up and actually specifies a particular grounds he needs to be held to them as i say in this case that actually the waiver issue can be understood in a couple of different ways the question of what is waived and i'm hearing mr rahman argue now that perhaps mr gaston should have somehow raised reading below the appellant raise the misrepresentation and the if you and the materiality where i don't see it anywhere in the rule twenty nine motion you mean where in there or anywhere bel  or now i think that it was i don't think it was separately raised i think that it is incorporated in the sense of how are you showing that bank of america was put at a potential risk of loss well the only issue that you discussed i came to this thinking that the issue that you could preserve was risk of loss and i'm trying to understand your argument about how we would know that if experience is broadly as you now seem to care that risk of loss it has to be shown in some way i think it it you're risk of a lost argument does seem to be preserved in this second this other argument about the materiality element in the misrepresentation that  record for you to cite that but i think that the way around that that we've suggested to the court is that it can still be reviewed for plain error and that that that is a significant issue here when it ties to the overall sufficiency of the evidence and the the particular unusual circumstance of this case which perhaps will never be repeated yes or no reported cases either where the government has pursued this this strategy and we can we can expect that perhaps in the future but i think it is  fair case to raise the plain error issue especially because of locker in and clean and the fairness that would be to mr ghassan by the fact that his counsel did did insist on materiality as being part of the instructions but he couldn't have anticipated what the supreme court would do in june of this past year well after his a year after his trial and to if i may briefly address her cyst has money the govern really has not shown in any way there that hearse had any any basis to be able to testify as to what happened or not with bank of america and he didn't his testimony was a best ambiguous he said he and c was able to recoup some of re hundred thousand dollars but he says from from other banks and he wouldn't say where it came from there was cross examination on on that point he wouldn't say where it came from and that his money is insufficient to say necessarily came from from bank of america when the government clearly could have put on a witness from bank of america if it chose to and it chose not to do that i think it's also there's a bit of inflation between what a bank was what about a bank was victimized for versus what the amount of restitution would be p and c i think that the argument is that the entire amount of money that anyone is talking about everyone agreed one point four million dollars but is p and c somehow only victimized for one point one because one it received an e mail back that i think is is not supported in the case i would be one point four and in the same way for bank of america it would have to be one point four that you would have to prove so you think that the restitution order should have been one point four no no no i agree that it should certainly be one point one and that's why i raised initially and in our bright summer restitution is separate from this this issue of how was the bank victimized what was the effect of the the school and victimizing the bank and i think it goes as well to just the lack of clarity and in hirsch's testimony