Appeal from the United States District Court for the Eastern District of PA, D.C. Criminal No. 85-00043-01.
Sloviter, Stapleton and Hunter, Circuit Judges.
1. James Ryan appeals from his conviction for making false statements to a federally insured bank in violation of 18 U.S.C. § 1014 (1982) ("§ 1014"). In this appeal we must consider 1) whether an arguably true answer to an ambiguous question on a loan application can form the basis of a conviction under § 1014, 2) whether an ambiguous answer to an unambiguous question on a loan application can serve as the basis for a conviction under § 1014, and 3) whether an incomplete answer to a question on a loan application can support a conviction under § 1014. For reasons stated below, we will reverse the judgment of conviction and remand for a new trial.
2. In February of 1982, James Ryan went to the Egg Harbor branch of the First National Bank of Toms River, New Jersey ("the bank") and spoke to the branch manager, Christine Anderson Auriemma. Ryan told Auriemma that he wanted to open a checking account. While gathering the information necessary to open an account, Auriemma asked Ryan to furnish his Social Security number. Ryan responded that he was not an American citizen and that he did not have a Social Security number. Auriemma informed Ryan that he could not open an account without a Social Security number. She suggested, however, that Ryan could have a friend open an account on Ryan's behalf and Ryan could take power of attorney on the account. Ryan took Auriemma's advice and had a friend, Gerald Connelly, open an account for him.
3. On or about February 25, 1982, James Ryan submitted a credit card application to the bank. The application required Ryan to supply various items of personal information such as his name, address, telephone number, Social Security number, date of birth, etc. However, Ryan failed to indicate his Social Security number on the application; instead, he drew a diagonal line through the space provided for that purpose.
4. Also on the application there is a space in which the applicant is to indicate his "PREVIOUS ADDRESS (last 5 years)." In this space, Ryan wrote "Amtsgasse # 2, Frankfurt West Germ," which, in fact, is the address that appears on Ryan's passport and his visa into the United States. He further indicated that this had been his address for a period of ten years.
5. A few lines further down on the application is a heading that instructs the applicant to "LIST AL OUTSTANDING DEBTS including home mortgage." Under this heading there are four blank lines on which the applicant is expected to provide the names and addresses of his creditors, the original amount of each debt, the unpaid balance of each debt, and the monthly payments on each debt. On the first such line, Ryan stated that he has monthly mortgage and/or rental payments of one thousand dollars. He did not indicate, however, the identity of the mortgagee or the amount of the original mortgage or the unpaid balance of the debt. Ryan listed no other debts. In another section of the application, however, Ryan responded affirmatively to the question, "Does applicant owe other creditors?"
6. Ryan mailed the application and an attached letter to Auriemma. The letter was written on Ryan's personal stationery, and the letterhead contained a Philadelphia address. On the application, however, Ryan stated that his address was in Egg Harbor. In fact, Ryan did maintain homes in both Egg Harbor and Philadelphia. In the letter, Ryan said that he would be willing to pledge a certificate of deposit as collateral for the credit card account. He also furnished a list of some of the credit cards that he already possessed, and he stated that Auriemma could call any of the listed credit card companies in order to verify his creditworthiness. Ultimately, however, the bank denied Ryan's request for a credit card.
7. On February 14, 1985, a federal grand jury in the Eastern District of Pennsylvania handed down a two count indictment charging that, in connection with the credit card application, Ryan committed mail fraud in violation of 18 U.S.C. § 1341 (1982) and made false statements to a federally insured bank in violation of 18 U.S.C. § 1014 (1982). Count one, the mail fraud count, averred that Ryan devised a scheme to defraud the bank by means of false representations, both oral and written. Count one further alleged that in furtherance of the scheme, Ryan caused the credit card application to be sent to the bank via the United States mails and that the credit card application contained three false statements:
(1) "[it] stated that he (Ryan) had no Social Security number, when in fact he has had Social security number 506-20-8048 since March 9, 1942;"
(2) "[it] stated that his previous address for a ten year period had been in Frankfurt, West Germany, when in fact he had resided at various locations in the United States for at least four years prior to making this application;"
(3) and "[it] stated that he had no debts other than a mortgage, when in fact he owed approximately $1,700,000 to the State Street Bank and Trust Co. in Boston, Massachusetts and approximately $200,000 to other creditors."
Indictment at 1-2. Count two, the false statements count, averred that the three above mentioned statements also constituted a violation of 18 U.S.C. § 1014 (1982). While count one alleged that Ryan made both oral and written misrepresentations, count two was based solely on the three written statements in the credit card application.
8. The case was tried before a jury and the Honorable James T. Giles. The jury returned a verdict of not guilty on count one but found Ryan guilty on count two. A judgment of conviction and sentence was entered, and this appeal ...