and the timing please pay attention to the clock and when your time runs out please and prob great if you're in the middle of the answer no question of course cliches go ahead and fully respond to the question why wouldn't a bastard if we don't want to hear the answer specific false statement supporting the guilty verdict and we feel our position is supported by the prior precedent of this court and we cited it kipps in case from the fifth circuit and a more recent case achatz and from this court nine hundred ninety eight and i understand these cases for the proposition that the jury must be unanimous as to what the defendant actually did to establish the commission of the crime the jury must agree to the defendant's course of action and i think these cases are also consistent with the supreme court's case in richardson  richardson the supreme court said the jury must be must determine whether the conduct violates the law and must do that unanimously let me ask you a question if you don't mind so a motor vehicle there's a number of ways to affect the taking of the motor vehicle it could be by hard wiring the initial ignition or toppling the car away the jury would not have to be unanimous about that say a burglary case unlawful entry is the element of the jury would not have to be unanimous about the whether the defendant picked a lock of a door to get in or broke a window to get in well the question is how does that relate to the crime that issue here ok we're going so let me do this if i may discuss first the financial institution crime section fourteen the element that we're talking about is making a false statement so if it's a how question that would be how is the statement made there could be disputes of fact as to whether the sta made in a written document or only there could be dispute as fact as to whether the statement was made to the president of the credit union or to a loan officer those are the types of questions that would not have to be found unanimously by the jury but the making a false statement itself with that would be considered an element because that's what the defendant did expressed in terms of the statute so so our position is that the making of the knowing full knowingly false statement is an element and not a means of committing  fense but yet there is also another line of cases regarding specific unanimity instructions which is less of a legal aspect and more of a practical actually constitutes a crime a specific jury instruction on unanimity may also be required and i think that comes into play in this case as well because  we have a number of false statements that were not contesting that they're false and we're not being interesting that they're knowingly false but the statute requires more there must be a nexus between the false statute and in the ten fourteen are false and knowingly false yet they could still disagree about which of those statements were made with the purpose of influencing the action of the lender and the similar problem arises in the bank fraud case because they also have to agree on which of those false statements constituted the mechanism inducing the lender to part with its money and they also have to agree on which of those false statements were material to the lenders decision so i think in that case you have to consider the false statements in conjunction with the that they're fact finding him guilty of and there i think for that reason i think it would have been appropriate in this case to require the jury to be unanimous on which precise statement it was and of course all the false statements do not have to establish that connection but you have to have at least one on which the jury was unanimous in supporting the verdict for the financial institution crime and the bank fraud crime and there's another if my if i may shift gears a little bit with respect to the bank fraud crime in particular we raise an issue about the restriction on the closing argument and and there was a question of materiality and the defendant had a definite theory defen he wanted to say that his false statements were not material and they were not the mechanism inducing the lender's action and he had a basis for it he said that what was important was the fact that while he started off he had a plan he pledged security for his first loan of five hundred dollars to ensure the security of the bank he and subsequent loans he offered other types of collateral like his his car getting insurance to secure the bank to make the bank feel comfortable he had insurance life insurance disability insurance all to offer the bank security so his mind his theory of defense was given all the alternative forms that security that were provided by the bank his statements even though they were false about his employment and his income were not material to the this isn't of a reasonable person to lend the money or to to give him his loans and all that amounts to a jury question of course the materiality is normally a jury question anyway and  it seems quite actually a fairly simple rule of law that a defendant should be able are to argue that the specific conduct of the victim is relevant to a determination  reasonable person would have acted and he was precluded from making that argument at trial so that's a specific argument for the bank fraud charge many is not required concerning which particular statement was fast when it comes to mail and wire fraud for example and and one of the things they provide on is and i just wanted to give you an opportunity to comment on that if you wish to do so that language by means of it sounds like a how question as i said how question is something that they don't know how to do you know but it's not really because if you exceed but because if you eliminate that portion of the statute there's nothing there's only innocent conduct is left without the fraudulent  representations you have a scheme to obtain money from a lender it's in its innocent conduct so the false representations make it criminal the richards think the jury has to be unanimous on those particular things that make the distinction between innocent conduct and criminal conduct thank you cases a specific you know dimity instruction is data needed there in occasions where if it's a very complicated case a multipurpose conspiracy for example or evidence of jury confusion where it might be appropriate as was argued it certainly was an abuse of power it was not an abuse of discretion not to give one now as to the bank fraud the jury certainly had to be unanimous on the element of  executing or or attempting to execute a scheme by means of false representation some by the way that's in the plural but what the specific representation might have been is one of those things that the supreme court has called brute fact so for example if you look at the indictment the indictment charges the elements and then in the manner in mean fiction it says the defendant executed the scheme  by these manner including but not limited to certain manners and means that we're taught in very global terms about misrepresentations of bat which employment and income all for the purpose of getting these loans but there's no requirement in that manner and means section that any one of them has to be unanimous knisley agreed upon that just has to be sufficient evidence to show that at least one of  there has to be agreement that there were false representations what those particular ones were don't have to be agreed upon in this case i should just add that it was not contested below that any of these representations were  that his income was false that his employment and length of employment was false so this certainly wouldn't have been jury confusion about it and it was overwhelming evidence that all of them took place so so for example if you if you take the theory that they had to agree on a false statement where would you and that should be a false statement on a particular day in a particular document and again you're getting to down to the nitty gritty facts that don't have to be don't have to be agreed upon in fact the jury could have simply found that the false representations were his missions of  these employment records the earning and low earning statements that he submitted in the doctored bank statements that he submitted as an implied representation that these were real documents this court has endorsed that theory in a tax case as well so again that's the bank fraud scheme and what they have to agree on as to section ten fourteen again they have to agree that there was a false statement the particular false statement is another one of those a brute facts and i think the best example of that is the fact that this court has stated in a ten fourteen case that if you separate out the false statements in separate counts there's improperly if facts are improperly charged in one carriage you don't know which fact which element really the jury agreed on here you're supposed to charge it all in one count which again suggests that the jury has to agree that this is a false statement but they don't have to agree on which one can i turn your attention for a moment to the ten fourteen count and the argument that that the crime  committed if the loan application wasn't signed because it's not it doesn't qualify as a court application and i guess the reliance on science and so we believe that s holding to those very particular facts but in this case and many other courts have found that a false statement in ten fourteen can be or all it can be informal it can be implied as the tax case that i mentioned the let me just ask you a question i mean i have to say that that makes sense to me but then there seems to be sort of a line drawn problem and i wonder if you could help me with a limitation of the principle so what if the guy comes to the bank and yells out you know i want to get a loan and you know i've got i've got a million dollars in property ok and he's doing it for the purpose of influencing the bank and the law but he doesn't actually go ahead and file the paperwork or do anything else to mentally i mean it's obviously an extreme example and obviously that wouldn't be challenged but what is the limiting principle that cuts that off from a situation where the person an application but doesn't sign it so it can't be considered anyway ray well i think the factual question for the jury then would be for the purpose so i do in your example if it really was never intending to go anywhere from the defendant's perspective because that's really all we care about in ten fourteen if the applicant didn't really mean for it to influence the loan then it probably then it wouldn't be the crime but i if he made a false statement for the purpose of getting money from this federally insured financial institution it application or for a loan and it's the statute is not restricted to application it also has lower gas prices so i would be a crime so it doesn't seem that that would be a very difficult so it could be chargeable as long as you could prove that his intent was to make a false secure a loan or to further the application yes your honor that would be our position and in this case of course that it's very clear that the defendant was in fact making these false that were already in the bank it let me just sort of ask more of a general banking question when in this circumstance was that money segregated out of his account so that it was he couldn't run t put it as  collateral he couldn't touch it or is it a situation where the bank says you know you've got ten thousand dollars in your coat so of course well known you five hundred dollars yes your honor i believe there was some evidence in the record that they actually hold on to that account  witness did say well we do care about employment if someone is not employed we do care about that one witness said did say well it's a pledge a loan it just matters that this money is in the account but again for i count count too the question is what did the defendant what with the defendant's purpose in making this misrepresentation and this certainly was sufficient evidence for the jury to find that his purpose in making the false statements was made for the subsequent ones well there was testimony from all of the witnesses on that issue that when the information was auto populated wasn't necessarily auto populate in all these charge loans but when it was the loan officer would verify with the applicant to make sure that this information was still accurate it was still you know still what was going on and in fact in several of these counts not only  so certainly there were those were very blatant affirmative steps to confirm his false statements if if there were no there are questions that will rest on our brief instructions issue that turn on legal principles and i think that's what we're dealing with in this case we're saying that specific unanimity instruction was legally required and and we did our you in our  for the proposition then that the review would be dyno vo as for the bank fraud count the government did cite brief cases from other districts from other circuits that say the jury does not have to be unanimous about which statements were written were relied on to find bank fraud but i think this court is controlled by ad concern on that point which i said under bank fraud the jury must be unanimous about this specific overt acts which constitute the schemes and the fraud now i understand that that actually refers to a different paragraph of the bank fraud statute in the first paragraph and this case proceeds under the second paragraph but i don't think there's a meaningful distinction there because the scheme to defraud involved to see generally involves false statements and representations as well and these overt acts that they're are undoubtedly in include a lot of false statements so i think the whole thing of acting thing controls there may even be a split among the circuits in that regard but  submit that this court is bound by the atkinson case so if there are no further questions i'll take a c and thank you thank you counsel