Legal Case Summary

. DeFraud. In that case, it's much like the mail-in wire fraud statute, which do not specify a required victim for the fraud scheme, and therefore provided the government could prove the two undisputed components of the term defraud, which come from. I'm not asking you to repeat it. I'm asking you. If the local person comes to the door and says, dear miscardation, I am your local jewelry cleaner. Please give me your jewelry. She does. Out. Right. And in that case? That's not fraud. He wanted to get the jewelry. He tried to get the, he also believed that the friend had just loaned it for the evening. That she's triple insured. That she won't even lose any money because the publicity will be worth it. Okay. Right. Now, my question is, there's the statute. I would have always thought for my first year in law school criminal law that that was fraud, but perhaps I was wrong, so I would like you to explain it. Yes, Your Honor. That would be a scheme to defraud the insurer. If the scheme, if the, in this case of the mail-in wire fraud statutes, which penalized a scheme to defraud anyone, for example, and provide heightened penalties for schemes that defraud anyone and happen to affect the bank, then yes, that would, would satisfy the statute. But if the status statute specified a particular victim, as clause one does here, and clause one says, the intended victim must be the bank, not the customer. And so our argument depends on that on two steps based on this Court's longstanding fraud precedent. The first is how we define defraud. But the second is the presence of the direct object there. In the example that Your Honor posited, there was no required object of the fraud scheme, and therefore, at the very least, it would certainly constitute a scheme to obtain money or property by means of false pretenses. The problem is that you get, you get mired in some very abstract concepts of property rights. Yes, someone is insured, but if they keep getting their property stolen, their insurance rates go up. Here, okay, it wasn't that, if you correct, it wasn't the bank's own property, but it's somebody else's property that they use in making loans. And again, they will have less money to make loans if the property is being taken

. Now, does your case turn on what the defendant knows, even if that's not right? I mean, the argument is, well, people commonly think you put your money in the bank, it's your money, and they'll give it back. But in fact, it's of course loaned out by the bank. But if the defendant really thinks, I don't want to take anything from the bank, I'm taking this from Sue, and he's wrong, is he off the hook? Yes, Your Honor. So first of all, the standard here is not what he knows, but what he's intends, which this Court going back to the Durland case in 1896 has equated with purpose, which makes sense because we're talking about a scheme, which is a plan with a purpose. And precisely for that reason, this particular liability scheme avoids the effect-based technicalities that the government complains of, because it doesn't matter whether the bank in fact has possessory interests or whether the insurer is going to, in fact, bear the loss. The only thing that matters is, as Your Honor says, what the defendant intends, what his purpose is in devising the scheme. Well, is that making, is that ignorance of the law being the defense? Because the law, he thinks the bank, the bank doesn't have any property interest at all. But in fact, the bank has the property interest as either a Bailey or a Baylor, I forget, which one it is. And the bank has the property interest because it actually uses the money and its own property. But he's wrong about that legal question of property. So his ignorance of the law is a defense. Sotomayor, it wouldn't be ignorance of the law. There's nothing anomalous about an intent-based liability scheme. And the answer is that particular fraud scheme would be punished under clause two of the statute. It's not that it's not the fact. Sotomayor, you mentioned the sub two. Do you recognize, do you concede, that Shaw could have been charged and convicted under the obtaining property owned by or under the custody or control of a financial institution? If the government had charged that instead of defrauding a financial institution, could Shaw have been found guilty? Absolutely, Your Honor. That was the appropriate charge in this case. And the reason why the bank fraud statute works as a whole exactly as Congress intended based on this intent-based liability scheme is because the schemes that arise in the Federal circuits sort neatly into clause one, clause two, or both depending on the design of the scheme. So the design is in most every practical case in every real-world example going to reflect the intent. And- Well, the design here, the intent here, is to harm whoever has a lawful, possessory interest. Your Honor, the intent required under clause one, and that's quite clear because it specifies the bank, is to harm the bank in its property. But it has a possessory interest. And certainly if- And that possessory interest is harmed. It's- It's- It's- It's- In fact, it may be harmed, although in this case, of course, this is an example where the banks never suffered any loss, and there was no dispute on that point. But certainly, Your Honor, it's true that- But it was- Was it not a harm to the possessory interest? Yes, Your Honor. It insofar as the bank was deprived for a rummaging period of those funds in its coffers, yes. In fact, it was deprived. So, Ms. Bel, I guess what Justice Kennedy is suggesting, and maybe I'm confused about the same thing, it now seems to me that there's no difference between Your View and the government's views, so- Yes

. Mr. Enk? I'm putting you on notice that this is a question to You, too, because both of You were saying, look, there needs to be an intent to deceive the bank, and there in needs to be an intent to deprive the bank of some form of property interest, but with the recognition that property interests include possessory interests, as well as more classic ownership interests. And you agree with that? Correct, Your Honor. I'm going to think, and Mr. Yang will tell me, that Mr. Yang would agree with that, too. So what are we fighting about? Correct, Your Honor. I mean, then it's just Mr. Yang would say, well, look, a bank has a possessory interest in assets that are part of its depositors account. And so, you know, whether you target the depositors account or whether you target something else, you're still manifesting the same intent to deprive the bank of a property, including possessory interest. Right, I understand, Your Honor. I think there are two issues here. The first one is whether an intent to deceive is sufficient for an intended fraud, and the Ninth Circuit approved of jury instructions that permitted a conviction on that basis. That alone is. So that seems right to me, and I just want to point, you know, that you might say that all of that is right, and that the government and you agree, and what you really disagree on, is whether these instructions reflected that correct understanding of the law. And that seems fair to me, and we should talk about the instructions. But it seems to me that the understanding of the law is now you are in perfect harmony. It may be the case, but let me explain. I think that on the second prong in terms of if intent to deceive requires more, I'm sorry, if intent to defraud requires more than just intent to deceive, what is that second piece? And there we get to what it means to wrong a bank in its property rights. My understanding is that in the instruction is intent to deceive, cheat, or deprive a financial institution of something of value. Correct, Your Honor. And that would permit. What's the problem? That would, because it's worded in the disjunctive, in other words, or, it permits a conviction on the basis of the law. So the or goes between to deceive, cheat, or deprive? Correct. And so it would be. But what you have to cheat to deceive or deprive them of is something of value. Correct, Your Honor. Correct, Your Honor. And the possessory interest is something of value. So what do you are doing about? Your Honor, two things

. First of all, I would disagree respectfully with the Court's interpretation of the scheme to defraud instruction. I do not think that the deprive the bank of something of value is plausibly read to modify, deceive, and cheat. In other words, you think it means deceive, cheat, or deprive. Correct, Your Honor. But not of anything. It doesn't say anything, which you see, she reprive them of. And then it comes out of the blue and says, I think someone intends a financial institution of value. That's what you think it is. You better think. Okay, did you make that argument in the Court below? Yes, Your Honor. That was precisely the argument. It's always been. You have it here by chance. What page you made that particular argument? Sure, Your Honor. I can get that on Rebuttal. I don't want to take the Court's time now. But let me be clear. We're here because the scheme to defraud requires the intent to defraud. And that's really undisputed that that's the element. The intent to defraud destruct instruction simply required the intent to deceive or cheat. And- My colleague Justice Alito has written extensively on this issue of intent versus knowledge. Yes, Your Honor. All right. Why don't we just, instead of using intent? Yes. All right. You can deceive someone without taking property, right? Certainly, yes. All right. Someone can open up an account in a false name. They've deceived the bank. But it's not to cheat the bank of anything it's holding

. But it's to cheat the wife who he wants to hide money from, right? Okay, yes. Nothing of value has been taken. You can cheat the bank in that way, too, out of moving something somewhere, but not to take it, okay? Yes. And you can deprive someone of property without deceiving or cheating them. You can rub them, right? Correct. All right. So I thought, and this is what Justice Kagan was getting to, it has to be that you deceive or cheat and deprive someone of property, correct? Your Honor, the cheat, I think, is synonymous with the concept of actually, well, defrauding your Honor's corrected. You defraud someone by deception. Deception in order to cause them to bear the property of- That's why you say it's two different elements. No, I'm sorry. They're not two different elements. It's one element. It's the intent to defraud. But there are two components of defraud. And the government doesn't dispute that. That comes from the Hammershmitt case in 1924. So far, I've perfectly understand your point. Thank you. Yes. That defraud element has two prongs to it, deception for the lack, you know, deception, one prong, and deprivation of the other. You're taking the money by or the possessory interest by deception. And you're saying that by using the disjunctive, the or, the jury could have convicted merely for deceiving the bank, but didn't find that they deceived and deprived the bank of a possessory interest. That's exactly right, Your Honor. That's exactly right. And I- Now, Justice Breyer has asked the operative question. Yes. And it's what confused me throughout both in the discussions below and here. At first, I thought this case was only about reading your brief, about whether the deprivation had to be of something the bank owned. Yes. As opposed to had a possessory interest in

. And Justice Kagan rightly says, you seem to have backed off from that claim. You seem to be saying, owned can mean merely a possessory interest. Is that correct now? Your Honor, we don't see that as a different formulation and let me explain why, because I certainly understand the confusion. The standard is that comes from this Court's fraud precedent. The mail-in-wire fraud precedent that everybody agrees is the operative body of law is the intent to wrong the bank in its property rights. That- In its what? In its property rights. In its own property rights. Which you now acknowledge can include possessory interests. Correct. And we certainly never meant to disavow that. The issue is, what does that mean in practice? And in practice, what that means is the intent to cause the bank and not the customer to bear the property loss of the scheme. No. That's not what it means. That's not what it means. And maybe something more is required. Maybe it has to be deprived of an ownership interest or cause a loss, but depriving of a possessory interest is not the same as causing a loss to the bank. Well, let me explain how I mean it. I mean it in the sense that as this Court has recognized, when you intend a deprivation of a victim, you- you also- the mere image of that is the intended acquisition. And that's where we're getting the idea that when you intend if a defendant were, and I have never seen a case in my personal practice, or anywhere in the Federal circuits that approaches anything like an intent to actually deprive the bank of its possessory interests, what defendants think about when they posit these schemes to get customer deposits is to either- is either that they're taking the customer's money or they're taking the bank's money. In so far as the bank is going to suffer the loss or the customer's going to suffer the loss- You want to throw it at the PANIS- It's perfectly lawful under this statute, Section 1. To knowingly deprive someone of a possessory interest by deception. Well, Your Honor, I think- You want us to write that. No, Your Honor. In so far as first of all, the standard would be the intent, right? So we're talking about the intent which is different than knowledge. It's the purpose. The intent to deprive someone by deception of a possessory interest is proper. You need something more. That's what you say. The intent to deceive the bank and deprive the bank of a possessory interest would suffice. That does not come up in practice, however

. The proper point is you have to have the intent to hurt the bank. Exactly. Exactly, Your Honor. That is exactly right. If the customer will end up bearing the loss, then you say one doesn't apply. What does one cover in your view other than check timing? Yes, Your Honor. It applies to any scheme designed to cause the bank, that targets the bank as the financial victim of the fraud by means of concealment, omission, or any other kind of decision. My watching the movies, most of, I'd be afraid in this case that we're going to write something of five pages as nobody's going to understand where the simple thing, Jesse James goes up to the bank, says, your money or your life, he sees behind the teller is a drawer, and he knows that in that drawer the last five customers have given him some money. That's the money he wants. It doesn't matter whether in fact the bank is going to put that money in Joe Smith's account or whether the bank has something called a possessory interest or something else. And in fact, if Jesse James' brother comes up and says, Jesse James is on the way, give me the money, it should be the same result. Now, it's very simple-minded, and it's built in me by the movies. But if, in fact, you have a different approach, I would like to know where in the law that different approach is and why it is and how this is, I'm afraid in other words of confusion. Are you unconfused, me please? Yes, Your Honor. And when your Honor says if I have a different approach in terms of where our construction of clause one comes from in the Court's precedent, is that the question? Yeah, my question is why, as Jesse James or his brother committed a crime, the brother probably because he's lied and says Jesse James is on the way. And whether the money behind the desk was put there to everyone's knowledge by the depositors or whether the money happens to have been there for 50 years by the bank, put in by the bank's founder, makes no difference to this statute. And I want to know why it should or anything else you want to say about that. So that case where there's some ambiguity and this gets back to your Honor's question, Justice Ginsburg, that case would be best charged under clause two, which covers schemes that intend to victimize either the customer or the bank provided the requisite means of a false statement. So whenever there's any ambiguity in terms of what, as a practical matter, does this cover? Clause two will cover the customer deposit scheme in Laugren. I'm sorry, the alter check scheme in Laugren. And it will cover the deposit scheme here. It will cover your Honor's hypothetical, provided the intent also to deceive. And it's not just plain, let's say, bank larceny, which is covered under another statute and focuses on the effect of the conduct. And clause one then is reserved for other cases like checkkiting, which was a major, major impetus for this statute's enactment. And Congress knew at the time, based on this Court's 1982 decision in Williams, that it, that checkkiting was not going to be covered under clause two. It's one of the most pervasive forms of bank fraud. So that's not a minor role that clause one serves. But in addition, it's going to serve the loan fraud and the bank embezzlement types of cases where there's no affirmative false statement. All right. So if we disagree with you

. If we were to say that this subsection one means that you are targeting property. That, that, of, of, of depriving a bank of property in which it has a possessory interest. Yes. And we say, you don't have to prove the bank is going to lose anything of value, that it's going to be reimbursed by insurance. Or that ultimately the customer is going to receive, bear the loss. So long as you have defrauded the bank, some deception to the bank, and deprived it of some possessory interest, whether it bears the loss or not. If that's how we rule, do you lose this case? No, Your Honor, because it comes down to the requisite intent and present. We're disagreeing with you. That's how we're going to say what it means. I understand, and I agree. Do you lose this case? I think your answer is no, Your Honor, because the instructions don't reflect your understanding of the law. We certainly win on that basis. So reversal is required because the intent to defraud means more than the more than just- I'm not saying it does. I think it's a hard question as to whether the instructions do or don't. But it does seem to me you have an argument about the instructions. That's correct. And I think we also, though, would not lose under that second question about even if the court construes, which we agree with, that the intent is must be to harm the bank in its property rights. It's the economic injury. And that is reflected in every single fraud decision we see from this Court. Start with the Court. If the Court disagrees with you about that, if the Court thinks that someone doesn't require that you intend to cause the bank financial harm, only that you intend to deprive the bank of something of value. If that's by deception. Yes. Should the Nineteer could be affirmed? No. Could we just your theory that you have to intend to cause the bank of financial loss? No, Your Honor. And let me be clear, because I understand that it is confusing with the different theories. But are those two formulations that Your Honor articulated are one in the same in our view? In other words, the intent to wrong a bank in its property rights is the second component of defraud. But what does that mean in practice? That's not nonsensical for a jury. What that means is that the bank must bear the loss of the scheme. And so- Well, you have a lot of cases that I think the model penal code started where you have the word intent in a statute, normally, not always, but normally, it covers both purpose and knowledge so that if you tried to murder the queen by blowing up the carriage, a famous example, and that would lead to the death of the footman, even though you love the footman, you are still guilty of killing the footman through murder

. Okay? That's the famous example. Yes, Your Honor. So intent includes, unless there's some contrary, which you could argue, to the both. The statute, the construction, they have to show its scheme to defraud means that the person intends, which means he has knowledge that, as I take it, to deceive, cheat, or deprive. That's where the order is. To deceive, cheat, or deprive. A financial institution of something of value. So I looked at that, and I thought, what's the problem? What's the problem? That's what I want you to explain. It's not saying intends to cheat or deceive somebody, and then a separate thing, or deprive the financial institution of value. It's intent to deceive, cheat, or deprive. Who? A financial institution of what? Of something, of value. So what is wrong with that instruction? That's what I need to explain. Yes, Your Honor. And I'll answer that, and then if I may reserve the remainder of my time. The problem with that instruction is that it allows for a conviction on the basis of a scheme to deceive the bank alone. Now, even if your honor disagrees with me as it seems that you might, that problem is compounded by the intent to defraud instruction, which plainly, it does not include the something of value reference. It plainly allows for a conviction on the basis of an intent to deceive alone. That flies in the face of this Court's fraud precedent, and we see this going from Hammersmith in which the Court equated the idea of wronging a bank in its property rights to pecuniary or property laws. We see it two years later in the cone decision where the Court made it clear that an intent to take something from the United States, in that case, the United, the statute designated the United States, that that was insufficient to simply intend to take something from the United States custody without showing the intent to cause pecuniary and property laws. And we see that all the way through to Passquantino, the 2005 decision about economic injury, through to skilling where the Court says traditional fraud involves the loss of property. So applying the meaning, really the undisputed meaning of defraud to the undisputed intent to defraud element here, where clause one specifies the bank, that your honor is what is wrong with the instructions that allow for a conviction on the basis of a mere intent to deceive the bank. And if I may reserve the remainder. Thank you, counsel. Thank you. Mr. Yang. Mr. Chief Justice, and may please the Court. The intent required in this bank fraud scheme, in case is an intent to deceive the bank for the purpose of depriving it of something of value. Well, all right

. I'm sorry to stop you so early on, but I did not understand that to be the argument in your brief. I'm looking at the heading C on page 36. Section 13441 requires proof of an intent to deceive a bank, not to cause it monetary loss. So I didn't understand, I'm not sure when Justice Kagan proposed, suggested she was going to ask you the question, I guess I am. I did not think you agreed with the petitioner because I think the petitioner is saying very strongly, intent to deceive is not enough, and I understand you to say that it is. I'm sorry that the heading was a little incomplete, but I think the rest of our brief when you take it in context. What's missing from the beginning? Well, not just the heading, but the analysis in that part C as well. I mean, the part C just seems to contradict Part A or Part B or whichever it was. But we were trying to concentrate. But do you really mean we were trying to, and intent to deceive is not enough, that you need something about to deprive the bank of its property. Yes, and I think if you look at, for instance, at page 14 and then at page 17 of Footnote 1, page 31, we say, what's required is 1341, so on page 14 reaches deceptive schemes designed to deprive the bank of property. Then on seven. Do they have to have the intent to deprive the bank of property? Well, when you're designing, when you're, there's only one scheme over here, right? And so the scheme is his scheme, and as the scheme has to deprive the bank of property, that's what the jury is. Okay. I just want to clear up that it is not enough to deceive a bank, right? No, no, no, of course. I mean, you're not, of course, since that's what you said. That is what it is. My apologies. I think that when you take a look at the other parts of our briefs, on apology that we were trying to, trying to distinguish between intent to harm from the intent to deceive and we use some work here that may have led to some confusion. That's not our. Well, then if that's the case, then it all comes down to the instruction, deceive, cheat, or deprive a financial institution of something of value. Because you, as I understand your position as clarified, you do have to have the intent to deprive a financial institution of something of value. Right. Okay. Well, then it's all a question of whether deceive and cheat stand alone, or if they're also modified by of something of value. I think there's actually a deeper disagreement here. And I'm happy to talk about the jury instructions. And jury instructions, of course, have to be read as a whole. And when you read that, and particularly in conjunction with the materiality requirement, which is discussed in the material matter, you have to deceive the fraud of the bank as to when the material matter and the material matter is one that has a tendency that causes the bank to part with money or property. I think when you read the instructions as a whole, there's really no problem with the instructions. But there's a really, there is a deeper argument here. And that is the argument that petitioner says that you have to intend to take something that you know as a property interest of the bank. You have to acknowledge that. And I had thought until today that they were disputing whether a possessor interest was enough, but they've given that up. Yes, so it seems to me, Mr. Yang, that the real disagreement that you have is that Ms. Bell wants to equate an intent to deprive a bank of a property interest with an intent to have a bank suffer a pecuniary loss in the end. She says those are the same things. You say they're different things. Let's assume you're right. Let's assume that that's, that whether the bank in the end suffers a monetary loss is utterly irrelevant to the form of intent that's required by this statute. All right? So you want that, what let's say? Go back to the Chief Justice's question about how these instructions reflect that there needs to be an intent to deprive the bank of a pecuniary interest in property. I will go to those instructions. I'm happy to discuss them, but I don't think that's the end of the matter. I do think that there are actually two questions that are, that Petitioner is trying to merge, that are distinct, and they're actually making- I thought I was giving you that. No, no, they're making two arguments. One, could we talk about the instructions? I know that. I just want to wrap this. The last part of your argument, we want it first, do you mind? Okay. Not at all. I'm happy to discuss it, but in terms of the enduring legal consequence of this Court's decision, the bigger ones I'd like to get to, but I will discuss the instructions here. Well, we know there's a big picture in the world, but we want to know about the instruction. But the instruction- The enduring consequence to Mr. Shaw is a little bit different, so- Undoubtedly, but the Court generally doesn't take cases for error correction. And I want to- and the government's interest goes to the broader question of what does Section 13441- Same as the instructions. So only instructions. This is at pages 17 through 19 of the joint appendix. And the first instruction that's relevant is the instruction that the defendant has to have knowingly executed a scheme to defraud, that's a defined term, a financial institution as to a material matter. Now, we look, we've turned to page 18. The scheme to defraud is a scheme in which someone intends to deceive, cheat, or here there's only one scheme

. But there's a really, there is a deeper argument here. And that is the argument that petitioner says that you have to intend to take something that you know as a property interest of the bank. You have to acknowledge that. And I had thought until today that they were disputing whether a possessor interest was enough, but they've given that up. Yes, so it seems to me, Mr. Yang, that the real disagreement that you have is that Ms. Bell wants to equate an intent to deprive a bank of a property interest with an intent to have a bank suffer a pecuniary loss in the end. She says those are the same things. You say they're different things. Let's assume you're right. Let's assume that that's, that whether the bank in the end suffers a monetary loss is utterly irrelevant to the form of intent that's required by this statute. All right? So you want that, what let's say? Go back to the Chief Justice's question about how these instructions reflect that there needs to be an intent to deprive the bank of a pecuniary interest in property. I will go to those instructions. I'm happy to discuss them, but I don't think that's the end of the matter. I do think that there are actually two questions that are, that Petitioner is trying to merge, that are distinct, and they're actually making- I thought I was giving you that. No, no, they're making two arguments. One, could we talk about the instructions? I know that. I just want to wrap this. The last part of your argument, we want it first, do you mind? Okay. Not at all. I'm happy to discuss it, but in terms of the enduring legal consequence of this Court's decision, the bigger ones I'd like to get to, but I will discuss the instructions here. Well, we know there's a big picture in the world, but we want to know about the instruction. But the instruction- The enduring consequence to Mr. Shaw is a little bit different, so- Undoubtedly, but the Court generally doesn't take cases for error correction. And I want to- and the government's interest goes to the broader question of what does Section 13441- Same as the instructions. So only instructions. This is at pages 17 through 19 of the joint appendix. And the first instruction that's relevant is the instruction that the defendant has to have knowingly executed a scheme to defraud, that's a defined term, a financial institution as to a material matter. Now, we look, we've turned to page 18. The scheme to defraud is a scheme in which someone intends to deceive, cheat, or here there's only one scheme. So the scheme or the one that created the scheme had to intend to deceive, or deprive, a financial institution of something of value. Now, remember, the first instruction that we discussed talks about has to be a scheme to defraud as to a material matter. If you go further down on page 18, a material matter is one that has a necessary tendency to influence, or is capable of influencing the financial institution to part with money or property. This is what a scheme to defraud is. Now, I don't think when you take that in context, when you have to read instructions holistically, that there's really any question. But- Kagan, don't forget instructions 21. You're cherry picking. Well, an intent to defraud is an intent to deceive or cheat. And then we'll have to go back to instructions 17 to see how that fits in. The second part is you also have to independently find that you did so that is execute the scheme to defraud that we discussed as to a material matter with intent to defraud the financial institution. So there, intent to defraud simply says you have to intend to deceive or cheat again the financial institution. That's somewhat superfluous in a single person fraud scheme like this, because you've already defined the scheme to embed those requirements. Well, but you've kind of- Instruction, you do read it in context, but if I read instruction 18 in the context of 21, it kind of highlights that you have deceive or cheat separate from the deprivation of something of value. So linguistically, you have to say that what they meant in the instructions was somebody who intends to deceive a financial institution of something of value. And that's just not grammatical. It's not great, but it is not, but it's not unacceptable here, because- It's okay once you put in the word material. I think material- I think what you have in instruction 17. I think that's what- It says you have to execute a scheme or defraud a financial- to defraud a financial institution as to a material fact. No, no, I assume deceit was separate. But the material- The deceit was separate. You would have to deceive the financial institution as to a material fact. Which is defined in instruction 19 as one that has a natural tendency to influence a financial institution to part with money or property. So what you took away in instruction 21, you gave back in instruction 19. So it's a draw. And so an 18 says deceive, cheat, or deprive a financial institution of something of value. Something of value goes right along with deprive, but it doesn't go along with deceive. I don't think that's correct. I understand your honors challenge here. It's that you would say like out of something of value, normally, if you were saying it by itself. But when you have a series of verbs, it's not uncommon in common parlance

. So the scheme or the one that created the scheme had to intend to deceive, or deprive, a financial institution of something of value. Now, remember, the first instruction that we discussed talks about has to be a scheme to defraud as to a material matter. If you go further down on page 18, a material matter is one that has a necessary tendency to influence, or is capable of influencing the financial institution to part with money or property. This is what a scheme to defraud is. Now, I don't think when you take that in context, when you have to read instructions holistically, that there's really any question. But- Kagan, don't forget instructions 21. You're cherry picking. Well, an intent to defraud is an intent to deceive or cheat. And then we'll have to go back to instructions 17 to see how that fits in. The second part is you also have to independently find that you did so that is execute the scheme to defraud that we discussed as to a material matter with intent to defraud the financial institution. So there, intent to defraud simply says you have to intend to deceive or cheat again the financial institution. That's somewhat superfluous in a single person fraud scheme like this, because you've already defined the scheme to embed those requirements. Well, but you've kind of- Instruction, you do read it in context, but if I read instruction 18 in the context of 21, it kind of highlights that you have deceive or cheat separate from the deprivation of something of value. So linguistically, you have to say that what they meant in the instructions was somebody who intends to deceive a financial institution of something of value. And that's just not grammatical. It's not great, but it is not, but it's not unacceptable here, because- It's okay once you put in the word material. I think material- I think what you have in instruction 17. I think that's what- It says you have to execute a scheme or defraud a financial- to defraud a financial institution as to a material fact. No, no, I assume deceit was separate. But the material- The deceit was separate. You would have to deceive the financial institution as to a material fact. Which is defined in instruction 19 as one that has a natural tendency to influence a financial institution to part with money or property. So what you took away in instruction 21, you gave back in instruction 19. So it's a draw. And so an 18 says deceive, cheat, or deprive a financial institution of something of value. Something of value goes right along with deprive, but it doesn't go along with deceive. I don't think that's correct. I understand your honors challenge here. It's that you would say like out of something of value, normally, if you were saying it by itself. But when you have a series of verbs, it's not uncommon in common parlance. Simply to use the appropriate function word here of, that connects to the last word. So when you say deceive, cheat, or deprive a financial institution of something of value, the normal juror is going to understand that that means you're deceiving the financial institution, cheating the financial institution. Not if they read instruction 21, which talks about has nothing to do with, it just says, intended to deceive or cheat. Nothing of something of value. And when you quote the instruction on page 46 to make it read, to make it make sense, you have to add in as you do after deceive, deceive the bank out of something of value. But it makes no sense to say deceive of something of value. It doesn't even parse under Petitioner's reading, because I think Petitioner actually thinks that you have to deceive cheat or deprive the financial institution. It doesn't parse neatly under either reading, but I have to say that if I'm a reader, the way I understand this is you have to show, the scheme has to be one to deceive a bank, to cheat a bank, or to deprive a bank of something of value. And in that case, the deceive a bank is operating as a disjunctive clause without the, of something of value. Now, I think that actually you could, to deceive a bank alone, cheat a bank alone, or deprive a bank of something of value. And so, I'm a juror, I say, well, it's enough if the bank was deceived. I don't see how you can read. You might say it just deceives in the abstract. No, it's got to be that you're deceiving somebody. Well, but if you're deceiving the bank, if a financial institution which follows connects to deceive, then so does of something of value. Well, I don't think so, because that would make no sense. It would be the scheme must be one to deceive a bank of something of value. Whoever would use words like that. I understand that it's a slightly, there is a slight grammatical issue with this language. Well, I think it's more than grammatical, it's just like it doesn't make sense. I think when you read it in context, right, you have to take this. This is a definition of scheme to defraud. When you read this in context with what the jury is required to do, knowingly executed, it's deemed defraud a financial institution as to a material matter, right? So that scheme has to be with regard to a material matter. That material matter has to lead the bank, has the tendency to lead the bank to part with money or property. So when you take that in context, what does that mean? What's the material matter? I mean, the only way you can make sense is if you're actually depriving the bank of money or property. That is something of value. Now, if the court has concerns about how this parses report could decide the legal question, which is the important issue here in the past. Why has the government forgotten when it's a trial that simplifying things for juries is always the best thing? Do you really think that any juror reading this would parse it with the care that you are? Why can't you just say something like a scheme to defraud a bank is a scheme to what was the three words, to deceive or cheat the money and to cheat the bank of some interest in money or property? I completely agree that simplicity is preferable. I don't think there's a problem with what we have here, but I will even on up view on the simplicity. I think the proper instruction is a scheme to defraud is one intended to deceive the bank for the purpose of not priving out of something of value

. Simply to use the appropriate function word here of, that connects to the last word. So when you say deceive, cheat, or deprive a financial institution of something of value, the normal juror is going to understand that that means you're deceiving the financial institution, cheating the financial institution. Not if they read instruction 21, which talks about has nothing to do with, it just says, intended to deceive or cheat. Nothing of something of value. And when you quote the instruction on page 46 to make it read, to make it make sense, you have to add in as you do after deceive, deceive the bank out of something of value. But it makes no sense to say deceive of something of value. It doesn't even parse under Petitioner's reading, because I think Petitioner actually thinks that you have to deceive cheat or deprive the financial institution. It doesn't parse neatly under either reading, but I have to say that if I'm a reader, the way I understand this is you have to show, the scheme has to be one to deceive a bank, to cheat a bank, or to deprive a bank of something of value. And in that case, the deceive a bank is operating as a disjunctive clause without the, of something of value. Now, I think that actually you could, to deceive a bank alone, cheat a bank alone, or deprive a bank of something of value. And so, I'm a juror, I say, well, it's enough if the bank was deceived. I don't see how you can read. You might say it just deceives in the abstract. No, it's got to be that you're deceiving somebody. Well, but if you're deceiving the bank, if a financial institution which follows connects to deceive, then so does of something of value. Well, I don't think so, because that would make no sense. It would be the scheme must be one to deceive a bank of something of value. Whoever would use words like that. I understand that it's a slightly, there is a slight grammatical issue with this language. Well, I think it's more than grammatical, it's just like it doesn't make sense. I think when you read it in context, right, you have to take this. This is a definition of scheme to defraud. When you read this in context with what the jury is required to do, knowingly executed, it's deemed defraud a financial institution as to a material matter, right? So that scheme has to be with regard to a material matter. That material matter has to lead the bank, has the tendency to lead the bank to part with money or property. So when you take that in context, what does that mean? What's the material matter? I mean, the only way you can make sense is if you're actually depriving the bank of money or property. That is something of value. Now, if the court has concerns about how this parses report could decide the legal question, which is the important issue here in the past. Why has the government forgotten when it's a trial that simplifying things for juries is always the best thing? Do you really think that any juror reading this would parse it with the care that you are? Why can't you just say something like a scheme to defraud a bank is a scheme to what was the three words, to deceive or cheat the money and to cheat the bank of some interest in money or property? I completely agree that simplicity is preferable. I don't think there's a problem with what we have here, but I will even on up view on the simplicity. I think the proper instruction is a scheme to defraud is one intended to deceive the bank for the purpose of not priving out of something of value. Just get rid of the disjunctive, right? That would be the better instruction for a single member bank fraud scheme. Now, things get a little complicated when you have schemes with multiple members. We don't have to discuss a disduscusted and put in a ten of our brief. But for the purpose of this case, that would be simple. We think that the instructions are all perfect, but they're, they convey and that jury would have found the requisite requirements of bank fraud. If the court has any doubts. What do we cite for that? Is there something in our cases that say that the instructions have to be read in the context of what the jury heard or something like that? I think the court say close enough for government work. Well, I don't think we quite said that, but it's in pages 40, probably 44 or 45 of our brief, which is the general proposition that you just have to, that bank fraud, excuse me, that during 46, jury instructions must be viewed in the context of the overall charge. And when you look at this in light of the materiality charge, any kind of ambiguity that might have been interjected in the definition of scheme to the fraud, I think, is sufficiently displaced. But there's not just the instruction. It's what the Court of Appeals held. The Court of Appeals held, in short, as a quote, the defendant was guilty of bank fraud because he intended to deceive the bank, full stop. So it's not just a problem with the instructions, it's a problem with what the Court of Appeals held. Again, I think this may be a problem with some brevity. I don't think the Court of Appeals meant to say, if you walk in to the bank, and tell the bank, you know, the nationals lost their game and don't have home-field advantage, that that's bank fraud. Of course, the Court of Appeals knows that it's in order to obtain something from the bank. That's what bank fraud is. And I don't think that, you know, just as the heading for our brief in Section C, might not have been fully complete the same thing for the Court of Appeals' opinion. But I'd like to get back to, I think, what's a broader issue here, which is what is the intent required? Could you just tell us why didn't the government charge under two, which your calling has agreed with this case, that if you've been charged under two and convicted, that would be fine. Because under two, you need to actually prove a misrepresentation. Because under two, you have to prove a false statement or a false misrepresentation. Now, in the context of crimes that occur over the Internet, there are some complications that are involved with that. The charging decision was to take one. Klaus I remember his scheme to defraud. This is the mothership of language from the fraud statutes. It comes from the mail fraud and the wire fraud Congress knew that this was broad. And Congress intended to adopt it specifically because it was broad. And in fact, Congress considered drafting language that would have required scheme to harm Klaus economic laws to a financial institution and specifically rejected it after the Department of Justice said, hey, that's too narrow. Schemed to defraud's broader, and this would undo the narrow the statute. So the government chose Klaus I because it was the broader Klaus, and we didn't need Klaus II, which could have complicated proof a little bit

. Just get rid of the disjunctive, right? That would be the better instruction for a single member bank fraud scheme. Now, things get a little complicated when you have schemes with multiple members. We don't have to discuss a disduscusted and put in a ten of our brief. But for the purpose of this case, that would be simple. We think that the instructions are all perfect, but they're, they convey and that jury would have found the requisite requirements of bank fraud. If the court has any doubts. What do we cite for that? Is there something in our cases that say that the instructions have to be read in the context of what the jury heard or something like that? I think the court say close enough for government work. Well, I don't think we quite said that, but it's in pages 40, probably 44 or 45 of our brief, which is the general proposition that you just have to, that bank fraud, excuse me, that during 46, jury instructions must be viewed in the context of the overall charge. And when you look at this in light of the materiality charge, any kind of ambiguity that might have been interjected in the definition of scheme to the fraud, I think, is sufficiently displaced. But there's not just the instruction. It's what the Court of Appeals held. The Court of Appeals held, in short, as a quote, the defendant was guilty of bank fraud because he intended to deceive the bank, full stop. So it's not just a problem with the instructions, it's a problem with what the Court of Appeals held. Again, I think this may be a problem with some brevity. I don't think the Court of Appeals meant to say, if you walk in to the bank, and tell the bank, you know, the nationals lost their game and don't have home-field advantage, that that's bank fraud. Of course, the Court of Appeals knows that it's in order to obtain something from the bank. That's what bank fraud is. And I don't think that, you know, just as the heading for our brief in Section C, might not have been fully complete the same thing for the Court of Appeals' opinion. But I'd like to get back to, I think, what's a broader issue here, which is what is the intent required? Could you just tell us why didn't the government charge under two, which your calling has agreed with this case, that if you've been charged under two and convicted, that would be fine. Because under two, you need to actually prove a misrepresentation. Because under two, you have to prove a false statement or a false misrepresentation. Now, in the context of crimes that occur over the Internet, there are some complications that are involved with that. The charging decision was to take one. Klaus I remember his scheme to defraud. This is the mothership of language from the fraud statutes. It comes from the mail fraud and the wire fraud Congress knew that this was broad. And Congress intended to adopt it specifically because it was broad. And in fact, Congress considered drafting language that would have required scheme to harm Klaus economic laws to a financial institution and specifically rejected it after the Department of Justice said, hey, that's too narrow. Schemed to defraud's broader, and this would undo the narrow the statute. So the government chose Klaus I because it was the broader Klaus, and we didn't need Klaus II, which could have complicated proof a little bit. Now, on the two questions that Petitioners presented, two kind of legal questions are, does the defendant have to have some knowledge of the legal property status of the thing that's being taken? I think the answer is clearly no. Willis Sutton in the 20th century to move off from Jesse James. He robbed bank because that's where the money is. Now, if Willis Sutton believed that all the money he took was custom deposit counts. It didn't belong to the bank. It didn't ever intended to harm the bank. He'd still be, you'd still call it bank robbery. And if you did the same thing through deceit, you'd call it bank fraud. Now, there's no reason to add this additional intent knowledge about the property status of the thing that's being taken. It doesn't advance any interest that the Congress was trying to advance, was to protect the integrity of banks. The cost of the bank does not depend on what's subjectively in the defendant's mind about what they think is it owned by, is it ownership, is it interest, is it a disaster interest, is there insurance, is there not insurance. It depends on the nature of the actual scheme and what's being taken. Congress would not have wanted to distinguish between defendants who execute the scheme, same scheme, based on the idea that once defendant is sophisticated. So, what's the right words? The right words? For the interest. I mean, there are many situations. Do you require an intent that there be property? How do you want to set an intent to injure the bank in its property? How do you set? Look, some people, a bank robber is going to banks. They take the customers. They line the customers up against the wall, and they take out their bill folks. Is that defrauding the bank? Or a- No, no, because you're obtaining it from the customer. Yeah, yeah, so how do you want to do this one? So, in bank fraud, the intent required, and there remember there's more than just intent as a fact, we do have to prove that there was a property interest in the bank. So, for instance, in your example. There was, but it was a property interest in the bank. What you have to prove in respect to that property interest is in the defendant's mind. So, the only intent required is the intent to deceive the financial institution in order to obtain something of value. Now, that's something of value. So, it could be of value and belong only to the customer. That complicates things, I think, in the movie. I think I want to know why I know you need to know the words. There's no more required for intent. Now, in order to establish

. Now, on the two questions that Petitioners presented, two kind of legal questions are, does the defendant have to have some knowledge of the legal property status of the thing that's being taken? I think the answer is clearly no. Willis Sutton in the 20th century to move off from Jesse James. He robbed bank because that's where the money is. Now, if Willis Sutton believed that all the money he took was custom deposit counts. It didn't belong to the bank. It didn't ever intended to harm the bank. He'd still be, you'd still call it bank robbery. And if you did the same thing through deceit, you'd call it bank fraud. Now, there's no reason to add this additional intent knowledge about the property status of the thing that's being taken. It doesn't advance any interest that the Congress was trying to advance, was to protect the integrity of banks. The cost of the bank does not depend on what's subjectively in the defendant's mind about what they think is it owned by, is it ownership, is it interest, is it a disaster interest, is there insurance, is there not insurance. It depends on the nature of the actual scheme and what's being taken. Congress would not have wanted to distinguish between defendants who execute the scheme, same scheme, based on the idea that once defendant is sophisticated. So, what's the right words? The right words? For the interest. I mean, there are many situations. Do you require an intent that there be property? How do you want to set an intent to injure the bank in its property? How do you set? Look, some people, a bank robber is going to banks. They take the customers. They line the customers up against the wall, and they take out their bill folks. Is that defrauding the bank? Or a- No, no, because you're obtaining it from the customer. Yeah, yeah, so how do you want to do this one? So, in bank fraud, the intent required, and there remember there's more than just intent as a fact, we do have to prove that there was a property interest in the bank. So, for instance, in your example. There was, but it was a property interest in the bank. What you have to prove in respect to that property interest is in the defendant's mind. So, the only intent required is the intent to deceive the financial institution in order to obtain something of value. Now, that's something of value. So, it could be of value and belong only to the customer. That complicates things, I think, in the movie. I think I want to know why I know you need to know the words. There's no more required for intent. Now, in order to establish. I thought it was, it's an intent to deprive the bank of a property, including the possessory interest. No. And the reason it's something of value that, in fact, is a possessory interest. Whether or not, or a property interest. Whether or not the defendant knows the property interest. Yes, the bank has to have a possessory interest in a property interest in this thing. Right. And property interest is broad. But the defendant doesn't have to know about that property interest. It just has to know, I'm trying to get money. I want the money, and that's enough. Now, the money happens to, in fact, be a property interest of the bank. But the defendant doesn't have to know that we don't require our defendants to have a property-taken property law or banking law or study the risk of loss rules that apply when frauds occur to banks. None of these things have to be in the knowledge or of, or beliefs. What does he have to know about? Does he have to know that the bank is involved? I mean, what does he have to know about the bank? He has to know that he's involved. The bank is likely involved. I mean, this is pretty easy because he sent the check. Well, I think what's required is, let me take a step back. When we're talking about financial institutions, and it might help to refer to page 1A of the government's appendix, financial institutions are not just banks. Financial institutions include certain banks when they're FDIC insured, certain credit unions, and then a whole sleuths of ten, a list of ten other things. It includes a small business investment company. Okay, but here we have a bank. What did this defendant have to know about this bank, if anything? It didn't have to know its status as a bank under the statute. It just had to know it's taking something from this entity, which in fact again is a bank under the statute. It could be a holding company, it could be any of these things. It's taking something from this entity by deceit, and that's the intent. Like, something of value from this entity by deceit. It doesn't have to know does this entity is a small business investment company, I find under Section 1 and 3, a small business investment act. It doesn't have to know these things. And the reason is, once you get into the realm of fraudulently taking something from the entity, that's criminal conduct

. I thought it was, it's an intent to deprive the bank of a property, including the possessory interest. No. And the reason it's something of value that, in fact, is a possessory interest. Whether or not, or a property interest. Whether or not the defendant knows the property interest. Yes, the bank has to have a possessory interest in a property interest in this thing. Right. And property interest is broad. But the defendant doesn't have to know about that property interest. It just has to know, I'm trying to get money. I want the money, and that's enough. Now, the money happens to, in fact, be a property interest of the bank. But the defendant doesn't have to know that we don't require our defendants to have a property-taken property law or banking law or study the risk of loss rules that apply when frauds occur to banks. None of these things have to be in the knowledge or of, or beliefs. What does he have to know about? Does he have to know that the bank is involved? I mean, what does he have to know about the bank? He has to know that he's involved. The bank is likely involved. I mean, this is pretty easy because he sent the check. Well, I think what's required is, let me take a step back. When we're talking about financial institutions, and it might help to refer to page 1A of the government's appendix, financial institutions are not just banks. Financial institutions include certain banks when they're FDIC insured, certain credit unions, and then a whole sleuths of ten, a list of ten other things. It includes a small business investment company. Okay, but here we have a bank. What did this defendant have to know about this bank, if anything? It didn't have to know its status as a bank under the statute. It just had to know it's taking something from this entity, which in fact again is a bank under the statute. It could be a holding company, it could be any of these things. It's taking something from this entity by deceit, and that's the intent. Like, something of value from this entity by deceit. It doesn't have to know does this entity is a small business investment company, I find under Section 1 and 3, a small business investment act. It doesn't have to know these things. And the reason is, once you get into the realm of fraudulently taking something from the entity, that's criminal conduct. And the additional requirements, like, that it was a bank, that's a jurisdictional hook. It's similar to- It has to know that a financial institution is involved. It doesn't have to have any knowledge about whether the entity that it's deprived of the property qualifies as a financial institution. It could be, for instance, a small kiosk in a grocery store that's conducting transactions, and happens actually to be a bank outpost, but you don't know it's a bank, but you rob a bank, or you defraud the bank. You don't have to have knowledge of its status as a financial institution. There are several examples. Bank, robbery, or larceny, under Section 2, 1, 1, 3, a, and b. The courts have held you don't need to know that the entity robbed is a bank that's theft of U.S. property. If you steal the U.S. property, you don't have to know it's owned by the U.S. There's a recent case called Rehack in the F.S. 8th Circuit that surveys the unanimous views. You don't have that knowledge of the status as property of the United States. Can- can you clarify for us what is in the overlap area? What is covered only by one, and what is covered only by two? They are, of course, cover almost- they're almost co-terminous, but there are things that are outside of one, and there are things that are outside of two. What's outside of one are schemes that- schemes where you do not- where your fraud is not targeted at the bank. Or yes, so two, let me start over. I read it's a little confusing. Two is broader than one in the following respect. It covers schemes- You're clever as one. Two, clause two is broader than one, because it covers schemes to deceive the custodian of bank property. One does not, because the deception has to be directed at the bank. But one covers things that two does not, because two is limited only to false statements. This is what lawful and unexplained in a footnote. One covers frauds that are based on non-statement type deception. For instance, check hiding

. And the additional requirements, like, that it was a bank, that's a jurisdictional hook. It's similar to- It has to know that a financial institution is involved. It doesn't have to have any knowledge about whether the entity that it's deprived of the property qualifies as a financial institution. It could be, for instance, a small kiosk in a grocery store that's conducting transactions, and happens actually to be a bank outpost, but you don't know it's a bank, but you rob a bank, or you defraud the bank. You don't have to have knowledge of its status as a financial institution. There are several examples. Bank, robbery, or larceny, under Section 2, 1, 1, 3, a, and b. The courts have held you don't need to know that the entity robbed is a bank that's theft of U.S. property. If you steal the U.S. property, you don't have to know it's owned by the U.S. There's a recent case called Rehack in the F.S. 8th Circuit that surveys the unanimous views. You don't have that knowledge of the status as property of the United States. Can- can you clarify for us what is in the overlap area? What is covered only by one, and what is covered only by two? They are, of course, cover almost- they're almost co-terminous, but there are things that are outside of one, and there are things that are outside of two. What's outside of one are schemes that- schemes where you do not- where your fraud is not targeted at the bank. Or yes, so two, let me start over. I read it's a little confusing. Two is broader than one in the following respect. It covers schemes- You're clever as one. Two, clause two is broader than one, because it covers schemes to deceive the custodian of bank property. One does not, because the deception has to be directed at the bank. But one covers things that two does not, because two is limited only to false statements. This is what lawful and unexplained in a footnote. One covers frauds that are based on non-statement type deception. For instance, check hiding. Checks are not statements about the balance in the account. Check hiding is covered. Other behavioral type of frauds, for instance, it's a little far fetch, but you could have someone that, you know, dresses in a disguise, and just walks into the bank, the bank lets them into the- well-known customer, walks into safety deposit box, takes out the money, no statements made, one would cover that kind of thing. Now, these areas are, you know, on the French, the two terms, the two provisions largely overlap, and that's not surprising, because the language that was the impetus for two was language that the court adopted in Durland in construing the term scheme to the fraud. So there's a lot of overlap between these two things, and that's what Justice Kagan recognized in law print, but they both have independent meaning, not a lot, and some, you know, they often can be used at the same time, but they are independent. You referred to us as a money and a security deposit. Your answer would be the same, right? If somebody went in and said, I'd like to see the security deposit boxes and made a full statement to the bank about his entitlements to see the security deposit boxes and took the money out. The bank still has a possessory interest in that, even though it doesn't use that money in the same way, is that correct? Correct. Let me give you another example. Suppose that I'm sitting in a coffee shop and somebody comes up to me and says, I have to make a phone call, would you just hang on to my computer for a minute, and then disappears, and then somebody else comes up, the fraudster comes up, and says, oh, she just told me to pick up her computer from her, and that's a misrepresentation. But I give him the computer. Do I have, have I had a possessory interest in that computer just because somebody said, why don't you take a look, you know, keep your eye on this? Yeah, gratuitous, Bailey, as what they would be. And I think the answer is, I think we would say yes for purposes of the fraud statute. Now, this wouldn't, of course, be bank fraud. Yeah, yeah. But, I mean, that, what you're essentially saying is that anything I can think of, any hypothetical I can think of, which involves my hanging on to something for somebody else that I have a possessory interest in that sufficient to satisfy this. Yeah, and I don't, it's sufficient for this purpose. And I don't think this is unusual, oftentimes, rights and interests in the law are relative to other people. So your possessory interest would not be superior to the person who owned the laptop, but it would be superior as the third party is having no claim of right, no valid claim of right to the laptop. So, yes, I think could fall within the general understanding of a scheme to defraud. Obviously, not a scheme to defraud a financial. I mean, that suggests to me that as long as the person knows that the money is being, is in the bank somehow, it just shouldn't matter because anything counts as a possessory interest. It shouldn't matter at all. And I think that emphasizes why Congress would not have wanted to add some additional knowledge requirement about the property status of the money. Like, why does it matter? All it does is complicate things. Congress would not have wanted to carve out this type of conduct as non-criminal. And in fact, it's important to recognize, even Petitioner says she's not carving out anything that's non-criminal. In page 25 of the reply brief, Petitioner just says it's essentially a pleading game. Well, why would Congress have wanted to make the broad language of scheme to defraud, which has a history going back more than a century, to be a narrow appendage on something else, in order to force the government into a pleading game, when no, at the end of the day, if it's pled properly, it's still an offense punished by the same time. It just doesn't make any sense

. Checks are not statements about the balance in the account. Check hiding is covered. Other behavioral type of frauds, for instance, it's a little far fetch, but you could have someone that, you know, dresses in a disguise, and just walks into the bank, the bank lets them into the- well-known customer, walks into safety deposit box, takes out the money, no statements made, one would cover that kind of thing. Now, these areas are, you know, on the French, the two terms, the two provisions largely overlap, and that's not surprising, because the language that was the impetus for two was language that the court adopted in Durland in construing the term scheme to the fraud. So there's a lot of overlap between these two things, and that's what Justice Kagan recognized in law print, but they both have independent meaning, not a lot, and some, you know, they often can be used at the same time, but they are independent. You referred to us as a money and a security deposit. Your answer would be the same, right? If somebody went in and said, I'd like to see the security deposit boxes and made a full statement to the bank about his entitlements to see the security deposit boxes and took the money out. The bank still has a possessory interest in that, even though it doesn't use that money in the same way, is that correct? Correct. Let me give you another example. Suppose that I'm sitting in a coffee shop and somebody comes up to me and says, I have to make a phone call, would you just hang on to my computer for a minute, and then disappears, and then somebody else comes up, the fraudster comes up, and says, oh, she just told me to pick up her computer from her, and that's a misrepresentation. But I give him the computer. Do I have, have I had a possessory interest in that computer just because somebody said, why don't you take a look, you know, keep your eye on this? Yeah, gratuitous, Bailey, as what they would be. And I think the answer is, I think we would say yes for purposes of the fraud statute. Now, this wouldn't, of course, be bank fraud. Yeah, yeah. But, I mean, that, what you're essentially saying is that anything I can think of, any hypothetical I can think of, which involves my hanging on to something for somebody else that I have a possessory interest in that sufficient to satisfy this. Yeah, and I don't, it's sufficient for this purpose. And I don't think this is unusual, oftentimes, rights and interests in the law are relative to other people. So your possessory interest would not be superior to the person who owned the laptop, but it would be superior as the third party is having no claim of right, no valid claim of right to the laptop. So, yes, I think could fall within the general understanding of a scheme to defraud. Obviously, not a scheme to defraud a financial. I mean, that suggests to me that as long as the person knows that the money is being, is in the bank somehow, it just shouldn't matter because anything counts as a possessory interest. It shouldn't matter at all. And I think that emphasizes why Congress would not have wanted to add some additional knowledge requirement about the property status of the money. Like, why does it matter? All it does is complicate things. Congress would not have wanted to carve out this type of conduct as non-criminal. And in fact, it's important to recognize, even Petitioner says she's not carving out anything that's non-criminal. In page 25 of the reply brief, Petitioner just says it's essentially a pleading game. Well, why would Congress have wanted to make the broad language of scheme to defraud, which has a history going back more than a century, to be a narrow appendage on something else, in order to force the government into a pleading game, when no, at the end of the day, if it's pled properly, it's still an offense punished by the same time. It just doesn't make any sense. This is not what Congress intended. It has no basis in the text or history of the bank fraud. When you look at what Congress did in the legislative history, it rejected language that would have adopted the same thing. As far as I can tell, everything points against Petitioner here. If the Court has no further questions, we'd ask that you affirm. Thank you, Council. Ms. Bell, you have three minutes remaining. Thank you, Mr. Chief Justice. To get back to Justice Breyer's question about where and the record did, was this disputed, that is at pages 646 to 647, and their council, myself, specifically made a argument that the problem with this destruction, this instruction exactly as Justice Sotomayor, and I believe Justice Kagan pointed out, is the disjunctive wording of intent, the intent to defraud the structure. Councillor Aksu, I assume I agree with you. Yes, Your Honor. That there were parts of your argument, both below and here in your brief, that suggests that the instructional error, but what I find is that the way you presented the argument was confusing. Yes. It took a lot of teasing out. How does that affect what we do? Yes, Your Honor. That you weren't clear in the instruction. Don't you forfeit that argument? No, Your Honor. The claim is that the intent to- I know what your two claims are. The question is, if I disagree with your basic premise that you need to prove pecuniary loss to the back, I know you want to win that, but please accept my hypothetical. I disagree with you. That the only issue is that you have to cheat and deprive the bank of a possessory, of something in a possess- in their possessory interest. Okay? Simple as that. It doesn't have to cause- you don't have to intend to cause pecuniary loss. All right? Where does that leave your instructional error? It's still an error, Your Honor, because it permitted a conviction on the basis of the mere intent to deceive the bank. And there's no curing it looking to, for example, the materiality component of the instruction. How about if I find that what you- that you didn't articulate your argument clearly enough to the court below or to us? Where does that put? Have you forfeited? Have you waved? Have you done something? No, Your Honor. The challenge was always to the disjunctively worded jury instruction, and that was consistently made from the district court to the court of appeals and to this court. The only question has been how to formulate if more than intent to deceive is required than what more? How do we explain that second component? Hammer Schmidt itself, which is the undisputed applicable definition here, uses a number of different formulations, and that's part of where the confusion comes from

. Hammer Schmidt says the intent to defraud is the intent to deceive, and it also uses the- and to wrong a bank in its property rights. It equates to wrong a bank in its property rights with, to deprive a- I'm sorry, a victim. It equates to wrong a victim in its property rights with depriving a victim of something of value, and it also equates that with cheating a victim out of something of property. And also, to make matters even more confusing in terms of the number of formulations, it says that the male fraud statute is limited to the inflection of pecuniary or property loss. And so our formulations come out of the Hammer Schmidt case. And what we have always asked the Court to do here is to construe intent to defraud, to require not just the intent to deceive as the lower court instructions required, but also the intent to do that second thing, which is- Thank you, Council. The case is submitted