Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1989)

MEMORANDUM^** 

Gerald R. Ramos appeals his conviction for wire fraud and interstate transportation of funds obtained by fraud. He argues that the district court erred by refusing his proposed jury instruction on a lesser included offense.

We review de novo the district court's decision. United States v. Brown, 761 F.2d 1272, 1278 (9th Cir. 1985).

Ramos claims that the district court erred by refusing his proposed instruction on the offense of submitting a false loan application to a federally insured bank. He argues that submitting a false loan application is a lesser offense necessarily included in wire fraud. Ramos relies on United States v. Johnson, 637 F.2d 1224 (9th Cir. 1980). The case has been overruled by Schmuck v. United States, 109 S. Ct. 1443, 1450 (1989), and is no longer the law of the circuit. United States v. Gregory, Slip op. No. 88-1192 (9th Cir. December 8, 1989).

An offense "is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense." Schmuck, 109 S. Ct. at 1450. The essential elements of the offense of wire fraud are 1) a scheme to defraud, 2) a false representation, and 3) use of interstate communications. See United States v. Pritchard, 773 F.2d 873, 876 (7th Cir. 1985), cert. denied, 474 U.S. 1085 (1986); 18 U.S.C. § 1343. The essential elements of submitting a false loan application are that 1) the defendant made false statements to a federally insured bank, 2) he did so to influence the bank's action, and 3) the defendant knowingly made the false statement as to a material fact. See Theron v. United States Marshal, 832 F.2d 492, 496-97 (9th Cir. 1987), cert. denied, 108 S. Ct. 2830 (1988); 18 U.S.C. § 1014. The offense of bank fraud requires proof that the defendant made a false statement to a bank to influence the bank's action. This requirement is not a subset of the elements of wire fraud. Therefore, the district court did not err by refusing the proposed instruction.

AFFIRMED.