Sorensen

Opinion by Judge O’SCANNLAIN; Dissent by Judge LOVELL.

We must decide whether a mortgage broker can be convicted of making false statements with regard to a loan application which was never signed.

I

In 1994, the FBI began a series of sting operations investigating mortgage brokers and other individuals suspected of loan fraud. As part of this effort, a confidential informant for the FBI, Vincent Schuman, contacted Ronald P. Sorensen, a mortgage broker. Posing as a borrower, Schuman told Sorensen that he was looking for a mortgage broker to help him obtain a loan from the Resolution Trust Corporation (“RTC”) to finance a purchase of residential property. The two men set up an in-person meeting to be held at Schuman’s apartment.

After this conversation, the FBI caused documents purporting to be a sales contract for a house in Santa Barbara (the one Schuman told Sorensen he intended to purchase) to be delivered to Sorensen. The contract indicated that the selling price was $350,000 and that Schuman had placed a down payment of $150,000. Thus, it appeared that Schuman needed a loan of $200,000 to cover the remainder of the purchase price.

Schuman and Sorensen met in person on…

Dissenting:

I respectfully dissent because (1) the majority view unduly constricts the scope of the statute contrary to the plain intent of congress; (2) well-reasoned decisions in the Tenth and Second Circuits are squarely against the majority’s holding here; and (3) the majority has decided the case for appellant on an issue surrendered by appellant in the briefs — that there was an application within the meaning of the statute. This denied the government the opportunity effectively to argue either orally or in brief that there was an application — a circumstance which leads me to believe the case should be reargued on that issue.

1. The statute: “Whoever knowingly makes any false statement or report ... for the purpose of influencing in any way the action of ... the Resolution Trust Corporation ... upon any application ... or loan ... [shall have committed an offense against the United States].” 18 U.S.C. § 1014 . Note that the statute covers “any false statement,” conveying the plain intent of congress that any false statement is proscribed — not just written statements, not only written statements that are signed, and not only statements that are contained in the…