F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

L L O Y D I R

V I N T A Y L O R , AKA L arry A. B usenius, AKA David Duane F isher, AKA Henry W . Henrikson, AKA L arry

Henrikson, AKA J a mes R. Holaway
, AKA Kenneth H. Miller, AKA Terry

A. Price, AKA L a rry Tay lor, AKA W illiam J

. Yount, Defendant-Appellant

. N o. 14-50528

D.C. No. 3:13-cr-01390- MMA-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Michael M. Anello, District J udg e, Presiding

Arg ued and Submitted November 5, 2015—Pasadena, California

F iled December 29, 2015U N I T E D S T A T E S V

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B efore: Mary

M. Schroeder and Michelle T. F riedland, Circuit J udg es and Vince G. Chhabria, * District J udg e.

Opinion by

J udg e Schroeder

SUMMARY * *

Crim inal Law

Affirming convictions for making false statements to a bank in violation of 18 U .S.C. § 1014 and ag g ravated identity theft in violation of 18 U.S.C. § 1028(a), the panel held that proof of risk of loss to a f i n a n c i a l institution is not r equired for a conviction under § 1014.

COUNSEL

Knut S. J ohnson (argu e d )
, Emerson W heat, San Dieg o, California, for Defendant-Appellant.

Caroline D. Ciraolo, Acting Assist a n t Attorney General, F rank P. Cihlar, Chief, Criminal A ppeals & Tax Enforcement Policy Section, Greg ory V ictor Davis and Greg ory S. Knapp (arg ued), At t o r ney s, Department of J ustice, Tax D ivision,

* T h e Ho n o rab le Vin ce G. Ch h ab ria, Un ited States District J u d g e f o r th e No rth ern District o f

Calif o rn i a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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W a shing ton, D.C.; and L aura E. Duffy
, of C o u n s e l, United States At t o r n e y , S a n D i e g o , California, for Plaintiff-Appellee.

OP INION

SCHROEDER, Circuit J udg e:

L loy d Tay lor appeals his conviction of s e v en counts o f making false stat e m en t s to a bank in violation of 18 U .S.C. § 1 0 1 4, and six counts of ag g ravated identity theft i n violation o f 18 U.S.C. § 1028(a). These convictions arose out of a tax evasion scheme in which Tay lor used multiple false identities to open bank accounts in o r d er to obtain cashier’s checks to buy g old. The bank d i s covered the scheme a nd reported it to federal authorities.

The determinative issue he raises in this a ppeal is whether § 1014 requires a risk of loss or liability for the bank. There

w a s none in this case because Tay lor was depositing a n d withdrawing money

from accounts that he had created. The statutory lang uag e, however, contains no require ment of a risk of loss to the financial institu t ion. Rather, it requires only that T ay lor knowing ly made a f a lse statement f

o r the
purpose o f influencing in any w ay the action of the bank in

c o n n e ction w ith covered b anking transactions—element s m e t when Tay lor used false d o cuments i n connection with opening accounts a

nd obtaining cashier’s checks. W e therefore join the F ourth Circuit in holding that th e s t atute does n ot contain any requirement of a ri s k of loss, and we affirm the convictions. See Elliot v

. United States , 332 F .3d 753, 764 (4th Cir. 2003).U N I T E D S T A T E S V

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BACK G ROUND

Tay lor’s scheme began in the 1 980s when he used the identities o f children who h a d d i ed before receiving social security numbers, and who w o u l d have been approx imately the same ag e as Tay lor. At trial, the g overnment introduced evidence that Tay lor obtained F lorida driver’s licenses, which he subsequently renewed, and voter reg istration cards, using the stolen identities. According to t he evidence p resented, Tay lor used these false documents to o pen various bank and brokerag e accou n t s , including c hecking accounts a t W ells F arg o and W a chovia. I n 2009, Tay lor, using one o f his false identities, p urchased f

our cashier’s checks from W ells F arg o B ank, in the tota l amount of $250,000. Around the same time, ag ain using a false identity
, he purchased two cashier’s checks f rom W achovia B ank, in the total amount of $98,050. To obtain the cashier’s checks, T a y lor provided various f

orms of false identification to each b ank. T o pay for these cashier’s checks he used funds d rawn from checking accounts he had o pened at each bank, also using false identities. I n addition, Tay lor h ad various o ther schemes in v o l v i n g f a l s ified passport a

pplications a

nd creatio n of a nonex istent church, which are not at issue here.

A g r and jury indicted Tay lor for violating numerou s statutes, including making false statements to a federally insured financial institution, 18 U .S.C. § 1014; making false
statements o n U

. S

. passport a p plications, 18 U.S.C. § 1542; obstruction o f the administration of internal revenue laws, 26 U .S.C. § 7212(a); tax evasion, 26 U.S.C

. § 7 2 01; a nd
ag g r avated identity theft, 1 8 U.S.C. § 1028(a). A jury convicted Tay

lor of all counts in J une 2014.U N I T E D S T A T E S V

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On a ppe a l he challeng es only the § 1014 false statement convictions and the § 1028(a) convictions, which a re derivative of the § 1014 convictions. These co nvictions effectively resulted in increasing hi s sentence by two y ears. Tay lor rests his entire app e a l on the arg ument that the
g overnment was required to prove under § 1014 that Tay lor’s conduct created a r isk of loss to the banks, w hich the
g overnment unquestionably did not do.

D ISCUSSION

Resolution of T ay l o r’ s a p p eal r equires us to look at the
t ex tual elements of the statute. Section 1014 provides, in relevant part:

W h oev e r knowing ly makes any false
statement or r e p o rt

. . . for the purpose o f influencing in any way t h e ac t ion of

. . . any institution the a ccounts of which are insured by the F ederal Deposit I nsurance Corporation

. . . upon any

. . . c o m m itment

. . . o r application for

. . . a g uarantee

. . . shal l be [ g uilty of an offense ag ainst the United States]

.

18 U.S.C. § 1014. I t is undispu t e d t h at Tay lor made false
statements o f h is identity

to open accounts, withdraw f unds, and obtain cashiers’ checks from insured banks. A “cashier’s check is a c ommitment” within the meaning of 1 8 U .S.C. § 1014. United States v. Boren
, 278 F .3d 911, 916 (9th Cir. 2002) (quoting United S

tates v. Riley
, 550 F .2d 233, 235 (5th Cir. 1977)).U N I T E D S T A T E S V

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Prior to 1997, most circuits h ad held that § 1 0 14 reached

o nly those false statements that were “material,” that i s , having “the capacity to influence the lending institution” with

re s p e c t to a d e cision involving the bank’s funds. Theron v

. U.S. Marshall
, 832 F .2d 492, 497 (9th Cir. 1987) (cit a t i on omitted). The Supreme Court in U n i t e d States v. W

ells
, 5 1 9 U .S. 482, 489–99 (1997), rejected the materialit y requireme n t , holding that materiality o f a false statement is
not an element of § 1014. The W ells Court r elied on the plain
tex t of § 1014, which contains n o m e ntion of materiality
, a s well as on the leg islative history of the statute, to determine that there is no materiality requirement. Id.

Rely ing on W

ells
, the F ourth Circuit ex plicitly rejected a risk of loss e lement. Elliot ex plain e d that W ells held that a false statement “ need not be m aterial to a financial institution’s decision to advance or loan funds.” 3 32 F

. 3 d at 764. I f 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 financ i a l loss. See id. “B ecause materiality is not an essential e lement of § 1014, it would be nonsensical for us to require the Gover n ment to nonetheless prove that the financial institution faced a risk o f financial lo s s

. ” Id. The F o urth Circuit’s decision is consistent with that of the pre- W e l l s o pinion by the Third Circuit in United States v. Y oo , which ex plained, “[ Defendant’s] additional a r gu m ent that § 1014 does not ap p l y h e r e because in this case there was no risk of loss to any federally insured bank, disreg a rds established precedent. Damag e or the risk of damag e to an insured bank i s not an

e l e m ent of § 1014.” 8 33 F .2d 4 88, 490 n.2 (3d Cir

. 1 9 8 7 ) (citations omitted).U N I T E D S T A T E S V

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Relatedly
, the F ifth, Seventh, and T e nth Circuits have all held that actual loss is n ot an element of § 1 014. S ee United S t a t es v. Lane
, 323 F .3d 568, 583 (7th Cir. 2003) (“[ M] u c h like materiality
, loss i s not an element under § 1014.”); United States v. G rissom
, 44 F .3d 1 507, 1511 ( 10th Cir. 1995) (“The d efendant need not h ave intended to harm the ban k or to p ersonally profit, and the b ank need not have suffered actual loss in order to sustain [ § 1014] convictions.”) (citation o mitted); United States v. W aldrip
, 9 81 F .2d 799, 806 (5th Cir. 1993) (“L oss need not be proven to c o n v ict a defendant for

. . . making a false statement to a bank

. . . .”).

Our court has not previously addressed the issue, but we have no reas o n t o d isag ree with our sister circuits, because the plain lang uag e of § 1014 imposes no risk of loss requirement. Cong ress could leg itimately have been concerned a

bout banks’ ability to detect identity theft a nd

ensure the correct identity of their c ustomers, reg ardless of whether the banks were also ex posed to potential liability

. W e therefore hold that proof of a risk o f loss t o a f i n a n c ial institution is not required for convi c t i o n o f making a false statement in violation of § 1014.

AF F IRMED

.