United States v. Lacey Phillips

688 F.3d 802, 2012 WL 3124891, 2012 U.S. App. LEXIS 15959
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 2, 2012
Docket11-3822, 11-3824
StatusPublished
Cited by2 cases

This text of 688 F.3d 802 (United States v. Lacey Phillips) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lacey Phillips, 688 F.3d 802, 2012 WL 3124891, 2012 U.S. App. LEXIS 15959 (7th Cir. 2012).

Opinions

EASTERBROOK, Chief Judge.

Lacey Phillips and Erin Hall decided to buy a house together. They asked Associated Bank for a mortgage loan. It said no, because Hall had a recent bankruptcy and the couple’s joint income (approximately $3,800 a month) was too low for the loan they needed (more than $200,000). Phillips and Hall next turned to Brian Bowling, a mortgage broker. Bowling told them that they could qualify under what he called the “stated income loan program” — his label for an approach designed to deceive lenders. Bowling prepared an application that omitted Hall’s name (avoiding a credit check that would have revealed his bankruptcy), attributed the combined income of Hall and Phillips to Phillips alone, doubled that combined income, and falsely claimed that Phillips was a sales manager at a satellite TV business. (Bowling knew that the $90,000 annual income Phillips claimed to earn needed to match the job she claimed to hold; actually she was a hair stylist at J.C. Penney, with an annual income less than $24,000.) Phillips signed the application and an employment verification form. Fremont Investment & Loan extended credit, and the couple bought their home. But they could not keep up the payments, and the mortgage holder foreclosed. (There was a sec[803]*803ond mortgage too, but it need not be discussed.)

Bowling and associates at his firm Platinum Concepts repeated this process often enough that they were bound to be caught. He pleaded guilty to bank fraud and, in an effort to lower his own sentence, agreed to assist in the prosecution of his clients. Phillips and Hall were among the clients the United States prosecuted. A jury convicted them of violating 18 U.S.C. § 1014, and the judge sentenced each to two months’ imprisonment plus three years’ supervised release and about $90,000 in restitution. Bowling is serving a sentence of 38 months.

Phillips and Hall contend that Bowling’s statements provide them with a defense. The district judge barred them from asking questions designed to elicit testimony that he assured them that the “stated income loan program” is lawful; the judge also foreclosed an argument that Phillips made a mistake of fact when signing the loan application and employment verification form. According to defendants, § 1014 is a specific-intent crime, and they were hindered in showing the lack of intent. The district judge concluded, however, that Phillips and Hall sought to argue a mistake of law, not an error of fact or a lack of the required intent. The instructions required the jury to acquit unless it found beyond a reasonable doubt that Phillips and Hall knew that the statements on the application and form were false; a genuine mistake of fact would have led to acquittal. What Phillips and Hall really wanted to argue, the judge wrote, is that Bowling’s false assurances about the legality of lying to lenders exculpate the lies; that would be a mistake-of-law defense, and “[t]he rule that ‘ignorance of the law will not excuse’ is deep in our law.” Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1958) (citations omitted). Compare United States v. Feola, 420 U.S. 671, 687, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), with Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994).

Section 1014 is a simple statute. It reads: “Whoever knowingly makes any false statement ... for the purpose of influencing in any way the action of [any of a long list of entities, including federally insured lenders] shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.” There are just three elements: (1) knowingly making a false statement; (2) to one of the listed entities; (3) for the purpose of influencing that entity. Phillips and Hall concede that the documents contain many false statements, and the jury found that Phillips signed them knowing their contents to be false. Defendants concede that Fremont was among the entities listed in § 1014. (We say “was” because that specialist in subprime credit collapsed in spring 2007, having made all too many loans to people who could not repay. Its failure was a harbinger of things to come.) That leaves “for the purpose of influencing in any way the action” of the lender. This can reasonably be described as a specific-intent element. But it is a specific specific-intent element. That is, it describes exactly the required mental state; it does not require proof that the defendant knew that his acts were unlawful. The bank fraud statute, 18 U.S.C. § 1344, requires proof of intent to defraud; § 1014 is a different animal, requiring only proof of intent to influence. See United States v. Lane, 323 F.3d 568, 582-85 (7th Cir.2003).

Suppose Bowling had testified that he assured defendants that federal law allows them to deceive lenders. Such testimony would not have tended to negate the intent element in § 1014. The statute does not require proof that the defendants knew their acts to have been unlawful or [804]*804to constitute fraud; it requires only intent to influence the lender. Bowling set out to do exactly that: influence a lender, so that the “no” from Associated Bank would turn into a “yes” from someone else. Defendants’ goal likewise was to find a way to influence a lender to put up the money so they could buy a house. The evidence of defendants’ intent to influence a lender is strong; defendants themselves do not argue that the evidence is insufficient.

We do not know what Bowling would have testified had defense counsel been allowed to ask extra questions, but the prosecutor has not asked us to treat as a forfeiture the absence of an offer of proof. Fed.R.Evid. 103(a)(2). We therefore must assume that Bowling would have testified along the lines explored at oral argument.

Perhaps Bowling would have testified, for example, that he assured defendants that false statements about income and employment are permissible because banks don’t care about the answers — that banks plan to sell or securitize the loans, so someone else will bear any loss. Bowling might have told Phillips and Hall that all lenders care about is having the paperwork appear to be in order, so that they can package the loans for resale. But if Bowling had testified in this fashion, it would not have helped the defense. It would not have negated the falsity of the statement (element 1), the identity of the lender (element 2), or the defendants’ intent to influence the lender (element 3). Quite the contrary, it would have bolstered the prosecution’s case by showing that Bowling led defendants to believe that false statements would succeed in influencing the lender, thus reinforcing proof of element 3. Testimony of this kind would have led defendants to believe that the lender would not verify the borrowers’ claims about income and employment (as Fremont didn’t verify them).

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Related

United States v. Lacey Phillips
731 F.3d 649 (Seventh Circuit, 2013)

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Bluebook (online)
688 F.3d 802, 2012 WL 3124891, 2012 U.S. App. LEXIS 15959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lacey-phillips-ca7-2012.