USA v. Carlos Ezeta

Filing

FILED OPINION (RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON and THOMAS O. RICE) REVERSED AND REMANDED. Judge: RCT Authoring, FILED AND ENTERED JUDGMENT. [9106702]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.

No. 12-10304
D.C. No.
2:11-cr-00289RCJ-VCF-1

CARLOS JAVIER EZETA,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted
February 10, 2014—San Francisco, California
Filed May 23, 2014
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Thomas O. Rice, District Judge.*
Opinion by Judge Tallman

*

The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.

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UNITED STATES V. EZETA
SUMMARY**

Criminal Law
Reversing the district court’s dismissal of an indictment
charging financial aid fraud in violation of 20 U.S.C.
§ 1097(a), the panel held that § 1097(a) does not require the
government to prove that the defendant personally received
or exercised dominion or control over the federally insured
funds.
The panel held that the statute encompasses the act of
taking money from the government via false statements and
causing it to be disbursed to others.

COUNSEL
Camille W. Damm (argued), Assistant United States
Attorney; Daniel G. Bogden United States Attorney; and
Robert L. Ellman, Appellate Chief, United States Attorney’s
Office, Las Vegas, Nevada, for Plaintiff-Appellant.
Brenda R. Weksler (argued), Assistant Federal Public
Defender; and Rene L. Valladares, Federal Public Defender,
Las Vegas, Nevada, for Defendant-Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
TALLMAN, Circuit Judge:
Defendant Carlos Javier Ezeta was indicted on four
counts of financial aid fraud in violation of 20 U.S.C.
§ 1097(a). Subsequently, the district court dismissed the
indictment after concluding (1) that Ezeta’s alleged actions
did not satisfy the statute and (2) that Ezeta could not have
“willfully cause[d]” or aided and abetted another to commit
the crimes. The government appeals the dismissal and we
must now decide as a matter of first impression whether
§ 1097(a) requires a defendant to personally receive or
exercise control over federally insured funds obtained by
fraud. We have jurisdiction under 28 U.S.C. § 1291, and we
now hold that it does not.
I
The allegations are undisputed. Between 2008 and 2011,
Ezeta worked as a counselor and professor at the College of
Southern Nevada (“CSN”), a community college in Las
Vegas. He was the only tenured professor at CSN fluent in
both English and Spanish. Both in conjunction with his
employment and out of a desire to help the Hispanic
community, Ezeta often assisted current and prospective
Spanish-speaking students with CSN applications and with
selecting courses. But his efforts to “assist” did not end with
good advice. Instead, beyond performing his official duties,
Ezeta “helped” these students obtain federal financial aid by
falsifying and electronically submitting several Free
Applications for Federal Student Aid (“FAFSA forms”). In
reliance on the representations made in these forms, student
aid money was disbursed. These applications eventually

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drew the attention of the Department of Education, Office of
Inspector General, which commenced an investigation.
The investigation revealed that eight CSN students had
visited Ezeta for help with registration and class counseling.
When Ezeta learned that the students intended to seek
financial aid and had not successfully completed high school,
a GED, or an ability-to-benefit test (at least one of which is
required to receive funds under Department of Education
regulations), he used their personal identification numbers to
complete the FAFSA forms for them. In doing so, he falsely
represented that the students satisfied the education
requirements. Ezeta even told one student to obtain a
fraudulent GED certificate.
Many of the students were unaware that their applications
contained false statements and none of the students asked or
paid Ezeta for his help in filling out the FAFSA forms. Of
the eight students involved, six received disbursement of
funds from the federal government; the seventh student’s
application was intercepted prior to disbursement; and the
eighth student’s application was never submitted because she
had not yet obtained a phony certificate of high school
completion. The six students who received funds were given
$8,709 in federal loans, but the total amount of intended loss
sought through the doctored FAFSA forms was $37,341.
Department of Education investigators then performed a
sting operation, sending a Spanish-speaking undercover agent
posing as a student to Ezeta’s office for help with the
enrollment process. The agent told Ezeta that she had not
finished high school but nonetheless intended to seek
financial aid. Ezeta then completed the FAFSA forms for her
and falsely reported that she had completed high school.

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Ezeta was thereafter questioned by federal agents. During
that conversation, Ezeta admitted to submitting applications
for students “a couple of times” and, when confronted with a
tape recording of the meeting with the undercover agent and
proof that his IP address was linked to the falsified FAFSA
applications, he then admitted that he had indeed submitted
the falsified forms because he wanted to “help people.”
There is no evidence that Ezeta personally received any
financial benefit for committing the fraud, though the school
presumably received funds improperly obtained through his
fraudulent activities.
The grand jury indicted Ezeta on four counts of financial
aid fraud in violation of 20 U.S.C. § 1097(a). Over the
government’s opposition, Ezeta moved to dismiss the
indictment, arguing that the statute requires personal receipt,
control, or possession of federally insured funds and that the
government failed to allege that Ezeta ever touched, let alone
controlled, the student loan money. Despite the district
court’s verbal indication at argument on the motion that it
would rule in the government’s favor, in issuing its written
decision the court granted Ezeta’s motion to dismiss the
indictment in its entirety. The government now appeals.
II
We review de novo a district court’s dismissal of an
indictment based on its interpretation of a federal statute.
United States v. Gomez-Rodriguez, 96 F.3d 1262, 1264 (9th
Cir. 1996) (en banc). Dismissal of an indictment is
appropriate when it fails to recite an essential element of the
charged offense. United States v. Omer, 395 F.3d 1087, 1088
(9th Cir. 2005) (per curiam). This appeal turns on whether
20 U.S.C. § 1097(a) requires, as an element of the offense,

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the government to allege and later prove that the defendant
personally received or exercised dominion or control over the
federally insured funds.
III
In interpreting a criminal statute, we begin with the plain
statutory language. United States v. Alexander, 725 F.3d
1117, 1118–19 (9th Cir. 2013). “If the plain meaning of the
statute is unambiguous, that meaning is controlling and we
need not examine legislative history as an aid[] to
interpretation unless the legislative history clearly indicates
that Congress meant something other than what it said.” Id.
at 1118–19 (quoting United States v. Williams, 659 F.3d
1223, 1225 (9th Cir. 2011)).
Section 1097(a) reads:
Any person who knowingly and willfully
embezzles, misapplies, steals, obtains by
fraud, false statement, or forgery, or fails to
refund any funds, assets, or property provided
or insured under this subchapter and part C of
subchapter I of chapter 34 of Title 42 or
attempts to so embezzle, misapply, steal,
obtain by fraud, false statement or forgery, or
fail to refund any funds, assets, or property,
shall be fined not more than $20,000 or
imprisoned for not more than 5 years, or both,
except if the amount so embezzled,
misapplied, stolen, obtained by fraud, false
statement, or forgery, or failed to be refunded
does not exceed $200, then the fine shall not

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be more than $5,000 and imprisonment shall
not exceed one year, or both.
20 U.S.C. § 1097(a) (emphasis added). It is undisputed that
the government sought to charge Ezeta for “knowingly and
willfully . . . obtain[ing] by fraud [or] false statement” the
student loan funds. 20 U.S.C. § 1097(a). Thus, we must
determine whether the word “obtain” requires a defendant to
exercise personal control over the funds or whether causing
the funds to be disbursed to another recipient is sufficient.
We conclude that criminal liability under § 1097(a) extends
to knowingly and willfully causing the funds to be disbursed
to a third party by fraud, false statement, or forgery.
The Supreme Court has held that when “a word is not
defined by statute, we normally construe it in accord with its
ordinary or natural meaning.” Smith v. United States,
508 U.S. 223, 228 (1993). To determine a word’s plain and
ordinary meaning, we may refer to standard English language
dictionaries. See id. at 228–29; United States v. Carona,
660 F.3d 360, 367 (9th Cir. 2011).
The word “obtain” is defined as “[t]o come into the
possession or enjoyment of (something) by one’s own effort,
or by request; to procure or gain, as the result of purpose and
effort; hence, generally to acquire, get” and “[t]o procure
something to be done[;] [t]o induce, prevail upon (a person)
to do something.” Oxford English Dictionary Vol. X, p.
669–70 (2d ed. 1989) (emphasis added). This definition
supports the conclusion that “obtain” is a verb of acquisition
and not one of dominion; it is entirely possible for someone
to “procure,” “acquire,” or “get” something of value for a
third party. See United States v. McFall, 558 F.3d 951, 956
(9th Cir. 2009) (interpreting “obtain” in a different context to

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require “someone—either the extortioner or a third person”
to receive property and noting that the extortioner does not
need to directly or indirectly benefit (quoting United States v.
Panaro, 266 F.3d 939, 943 (9th Cir. 2001))). Moreover, this
reading is consistent with the rest of the statute, which also
criminalizes attempt. See Brown v. Gardner, 513 U.S. 115,
118 (1994) (noting that ambiguity “is a creature not of
definitional possibilities but of statutory context”).
Under Ezeta’s reading of the statute, the government
would be required to prove that Ezeta exercised dominion and
control over the unlawfully obtained funds. But we hold that
this interpretation unduly restricts the ordinary and natural
meaning of the term “obtain” and conflicts with prior
decisions that have declined to read elements into § 1097(a).
See Bates v. United States, 522 U.S. 23, 28–31 (1997)
(concluding that specific intent to injure or defraud was not
required under the statute’s “willful misapplication”
language); see also United States v. Ranum, 96 F.3d 1020,
1025–27 (7th Cir. 1996) (holding that intent to deceive is not
an element of financial aid fraud).
Regardless, even if we were to conclude that the meaning
of “obtain” is ambiguous, the legislative history suggests that
Congress intended the statute to cover Ezeta’s alleged crimes.
The purpose of the financial aid fraud statute is to “provide
broad protection for Title IV student financial aid funds
entrusted to private educational institutions.” United States
v. Bates, 96 F.3d 964, 969 (7th Cir. 1996), affirmed by Bates,
522 U.S. at 29–32 & n.8. Due to the plain meaning of
“obtain” coupled with Congress’s intent that the statute have
broad reach, we hold that the statute encompasses the act of
taking money from the government via false statements and
causing it to be disbursed to others.

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Finally, other appellate cases that Ezeta cites in support of
his position are consistent with our conclusion that the word
“obtain” requires the disbursement of or the attempt to cause
the disbursement of funds to someone (not necessarily to the
defendant). See, e.g., United States v. Redfearn, 906 F.2d
352, 353–54 (8th Cir. 1990); see also United States v. Morris,
723 F.3d 934, 939 (8th Cir. 2013) (holding that there was
sufficient evidence to convict parents who obtained Pell
Grants by fraud and false statement on behalf of their
daughters).
Although it is undisputed that Ezeta did not receive any
payment for his alleged “services,” it cannot be said that he
did not benefit from them. After all, the tuition money
allegedly diverted from the federal treasury was presumably
spent at the school where Ezeta was employed. And the
record indicates that Ezeta, who received many awards and
accolades for his involvement with the local Hispanic
community, had a reputational interest furthered by the
alleged criminal acts. Regardless of Ezeta’s desire to “help
people,”1 if the government proves the allegations in the
indictment beyond a reasonable doubt, Ezeta committed a
crime. A criminal act done with a good heart is still a

1

Ironically, the very students Ezeta claimed to help were at great risk of
being harmed by his alleged actions. The fact that schools occasionally
abuse the federal loan system by preying on vulnerable students who must
later repay the value of an education for which they may not be suited is
well documented. See Jordan v. Sec’y of Educ., 194 F.3d 169, 169–70
(D.C. Cir. 1999) (noting that schools were falsely certifying student ability
to benefit in order to obtain loan funds and discussing new regulations that
provide an avenue for such students to have their debt discharged).

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criminal act.2 See, e.g., United States v. Frost, 281 F.3d 654,
656 (7th Cir. 2002) (noting in a similar case that conduct
defendants believed to be justified was “fraud nonetheless:
lies that induce [the government] to part with [] money are
material”).
Because we hold that exercising personal dominion or
control over the federally insured funds is not an element of
financial aid fraud under the “knowingly and willfully . . .
obtain[ing] by fraud [or] false statement” language of the
statute, we conclude that the district court erred in dismissing
the indictment.3
REVERSED AND REMANDED.

2
Justice Oliver Wendell Holmes, Jr., is rumored to have told a young
Judge Learned Hand that the job of a judge is not to do justice, but to
apply the law. See Michael Herz, “Do Justice!”: Variations of a ThriceTold Tale, 82 Va. L. Rev. 111 (1996). Accordingly, we apply the law.
3

Even if 20 U.S.C. § 1097(a) did require a defendant to exercise
personal dominion or control over the funds, Ezeta would still face
criminal liability. Contrary to Ezeta’s position, we have previously
concluded that the existence of a knowing principal is “immaterial” to
liability under 18 U.S.C. § 2(b) and that “the government need not prove
that someone other than the defendant was guilty of the substantive
crime.” United States v. Causey, 835 F.2d 1289, 1291–92 (9th Cir. 1987)
(upholding a tax protester’s conviction for “aiding, abetting, and causing
individuals to file false tax returns” even though the government failed to
allege and prove that the persons actually submitting the false returns
knew they were false, and therefore failed to prove the existence of
knowing principals). Because it is sufficient that the defendant “assists in
the illegal enterprise” even if he does not personally commit all required
elements and instead “causes the commission of an indispensable element
of the offense [by] an innocent agent,” id. at 1292, Ezeta would be liable
under § 2(b) and punishable as a principal.

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