United States v. Lloyd Taylor , 808 F.3d 1202 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50528
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-01390-
MMA-1
LLOYD IRVIN TAYLOR, AKA Larry
A. Busenius, AKA David Duane
Fisher, AKA Henry W. Henrikson, OPINION
AKA Larry Henrikson, AKA James
R. Holaway, AKA Kenneth H.
Miller, AKA Terry A. Price, AKA
Larry Taylor, AKA William J.
Yount,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
November 5, 2015—Pasadena, California
Filed December 29, 2015
2 UNITED STATES V. TAYLOR
Before: Mary M. Schroeder and Michelle T. Friedland,
Circuit Judges and Vince G. Chhabria,* District Judge.
Opinion by Judge Schroeder
SUMMARY**
Criminal Law
Affirming convictions for making false statements to a
bank in violation of 18 U.S.C. § 1014 and aggravated identity
theft in violation of 18 U.S.C. § 1028(a), the panel held that
proof of risk of loss to a financial institution is not required
for a conviction under § 1014.
COUNSEL
Knut S. Johnson (argued), Emerson Wheat, San Diego,
California, for Defendant-Appellant.
Caroline D. Ciraolo, Acting Assistant Attorney General,
Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement
Policy Section, Gregory Victor Davis and Gregory S. Knapp
(argued), Attorneys, Department of Justice, Tax Division,
*
The Honorable Vince G. Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TAYLOR 3
Washington, D.C.; and Laura E. Duffy, of Counsel, United
States Attorney, San Diego, California, for Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
Lloyd Taylor appeals his conviction of seven counts of
making false statements to a bank in violation of 18 U.S.C.
§ 1014, and six counts of aggravated identity theft in
violation of 18 U.S.C. § 1028(a). These convictions arose out
of a tax evasion scheme in which Taylor used multiple false
identities to open bank accounts in order to obtain cashier’s
checks to buy gold. The bank discovered the scheme and
reported it to federal authorities.
The determinative issue he raises in this appeal is whether
§ 1014 requires a risk of loss or liability for the bank. There
was none in this case because Taylor was depositing and
withdrawing money from accounts that he had created. The
statutory language, however, contains no requirement of a
risk of loss to the financial institution. Rather, it requires
only that Taylor knowingly made a false statement for the
purpose of influencing in any way the action of the bank in
connection with covered banking transactions—elements met
when Taylor used false documents in connection with
opening accounts and obtaining cashier’s checks. We
therefore join the Fourth Circuit in holding that the statute
does not contain any requirement of a risk of loss, and we
affirm the convictions. See Elliot v. United States, 332 F.3d
753, 764 (4th Cir. 2003).
4 UNITED STATES V. TAYLOR
BACKGROUND
Taylor’s scheme began in the 1980s when he used the
identities of children who had died before receiving social
security numbers, and who would have been approximately
the same age as Taylor. At trial, the government introduced
evidence that Taylor obtained Florida driver’s licenses, which
he subsequently renewed, and voter registration cards, using
the stolen identities. According to the evidence presented,
Taylor used these false documents to open various bank and
brokerage accounts, including checking accounts at Wells
Fargo and Wachovia. In 2009, Taylor, using one of his false
identities, purchased four cashier’s checks from Wells Fargo
Bank, in the total amount of $250,000. Around the same
time, again using a false identity, he purchased two cashier’s
checks from Wachovia Bank, in the total amount of $98,050.
To obtain the cashier’s checks, Taylor provided various forms
of false identification to each bank. To pay for these
cashier’s checks he used funds drawn from checking accounts
he had opened at each bank, also using false identities. In
addition, Taylor had various other schemes involving falsified
passport applications and creation of a nonexistent church,
which are not at issue here.
A grand jury indicted Taylor for violating numerous
statutes, including making false statements to a federally
insured financial institution, 18 U.S.C. § 1014; making false
statements on U.S. passport applications, 18 U.S.C. § 1542;
obstruction of the administration of internal revenue laws,
26 U.S.C. § 7212(a); tax evasion, 26 U.S.C. § 7201; and
aggravated identity theft, 18 U.S.C. § 1028(a). A jury
convicted Taylor of all counts in June 2014.
UNITED STATES V. TAYLOR 5
On appeal he challenges only the § 1014 false statement
convictions and the § 1028(a) convictions, which are
derivative of the § 1014 convictions. These convictions
effectively resulted in increasing his sentence by two years.
Taylor rests his entire appeal on the argument that the
government was required to prove under § 1014 that Taylor’s
conduct created a risk of loss to the banks, which the
government unquestionably did not do.
DISCUSSION
Resolution of Taylor’s appeal requires us to look at the
textual elements of the statute. Section 1014 provides, in
relevant part:
Whoever knowingly makes any false
statement or report . . . for the purpose of
influencing in any way the action of . . . any
institution the accounts of which are insured
by the Federal Deposit Insurance Corporation
. . . upon any . . . commitment . . . or
application for . . . a guarantee . . . shall be
[guilty of an offense against the United
States].
18 U.S.C. § 1014. It is undisputed that Taylor made false
statements of his identity to open accounts, withdraw funds,
and obtain cashiers’ checks from insured banks. A “cashier’s
check is a commitment” within the meaning of 18 U.S.C.
§ 1014. United States v. Boren, 278 F.3d 911, 916 (9th Cir.
2002) (quoting United States v. Riley, 550 F.2d 233, 235 (5th
Cir. 1977)).
6 UNITED STATES V. TAYLOR
Prior to 1997, most circuits had held that § 1014 reached
only those false statements that were “material,” that is,
having “the capacity to influence the lending institution” with
respect to a decision involving the bank’s funds. Theron v.
U.S. Marshall, 832 F.2d 492, 497 (9th Cir. 1987) (citation
omitted). The Supreme Court in United States v. Wells,
519 U.S. 482, 489–99 (1997), rejected the materiality
requirement, holding that materiality of a false statement is
not an element of § 1014. The Wells Court relied on the plain
text of § 1014, which contains no mention of materiality, as
well as on the legislative history of the statute, to determine
that there is no materiality requirement. Id.
Relying on Wells, the Fourth Circuit explicitly rejected a
risk of loss element. Elliot explained that Wells held that a
false statement “need not be material to a financial
institution’s decision to advance or loan funds.” 332 F.3d at
764. If a false statement violates the statute even if it cannot
influence any financial decision, then, Elliot concluded, there
can be no requirement of risk of financial loss. See id.“Because materiality is not an essential element of § 1014, it
would be nonsensical for us to require the Government to
nonetheless prove that the financial institution faced a risk of
financial loss.” Id. The Fourth Circuit’s decision is
consistent with that of the pre-Wells opinion by the Third
Circuit in United States v. Yoo, which explained,
“[Defendant’s] additional argument that § 1014 does not
apply here because in this case there was no risk of loss to
any federally insured bank, disregards established precedent.
Damage or the risk of damage to an insured bank is not an
element of § 1014.” 833 F.2d 488, 490 n.2 (3d Cir. 1987)
(citations omitted).
UNITED STATES V. TAYLOR 7
Relatedly, the Fifth, Seventh, and Tenth Circuits have all
held that actual loss is not an element of § 1014. See United
States v. Lane, 323 F.3d 568, 583 (7th Cir. 2003) (“[M]uch
like materiality, loss is not an element under § 1014.”);
United States v. Grissom, 44 F.3d 1507, 1511 (10th Cir.
1995) (“The defendant need not have intended to harm the
bank or to personally profit, and the bank need not have
suffered actual loss in order to sustain [§ 1014] convictions.”)
(citation omitted); United States v. Waldrip, 981 F.2d 799,
806 (5th Cir. 1993) (“Loss need not be proven to convict a
defendant for . . . making a false statement to a bank . . . .”).
Our court has not previously addressed the issue, but we
have no reason to disagree with our sister circuits, because
the plain language of § 1014 imposes no risk of loss
requirement. Congress could legitimately have been
concerned about banks’ ability to detect identity theft and
ensure the correct identity of their customers, regardless of
whether the banks were also exposed to potential liability.
We therefore hold that proof of a risk of loss to a financial
institution is not required for conviction of making a false
statement in violation of § 1014.
AFFIRMED.