                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.
JOHN DALEY STRASSINI, a/k/a John D.             No. 99-4654
Strassini, d/b/a Elite Home Builders,
d/b/a JDS Builders, Incorporated,
d/b/a John Daly Strothers,
                 Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.
JOHN DALEY STRASSINI, a/k/a John D.             No. 00-4206
Strassini, d/b/a Elite Home Builders,
d/b/a JDS Builders, Incorporated,
d/b/a John Daly Strothers,
                 Defendant-Appellant.
                                        
            Appeals from the United States District Court
      for the Western District of North Carolina, at Charlotte.
                Lacy H. Thornburg, District Judge.
                       (CR-97-54, CR-98-220)

                      Argued: October 31, 2002

                      Decided: March 11, 2003

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
2                     UNITED STATES v. STRASSINI
Affirmed by unpublished per curiam opinion. Judge Michael wrote a
dissenting opinion.


                              COUNSEL

ARGUED: Stephen Clayton Gordon, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Karen Elise Eady,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. Robert J.
Conrad, United States Attorney, Brian Lee Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   A federal grand jury in the Western District of North Carolina
indicted John Daley Strassini with one count of mail fraud, one count
of wire fraud, seven counts of money laundering, seventeen counts of
bank fraud, twelve counts of making false statements to obtain loans,
and one count of witness tampering. Pursuant to a written plea agree-
ment, Strassini pleaded guilty to two counts of bank fraud, one count
of wire fraud, and one count of money laundering. On appeal, Stras-
sini challenges the validity of his conviction, arguing that his guilty
plea was unknowing and involuntary because the district court failed
to inform him that the Government must prove materiality for the
bank and wire fraud charges. Because we find that the district court’s
error in failing to inform Strassini that materiality was an element of
bank and wire fraud neither affected his substantial rights nor seri-
ously affected the fairness, integrity, or public reputation of the judi-
cial proceeding, we affirm Strassini’s conviction and sentence.
                      UNITED STATES v. STRASSINI                      3
                                   I.

   In 1995, Strassini began a construction business in Charlotte, North
Carolina, doing business as JDS Builders and Elite Home Builders.
To obtain financing to develop residential properties, Strassini made
various false representations to local financial institutions, on which
they relied in lending Strassini millions of dollars.

   For example, between November 2, 1995, and June 6, 1996, Stras-
sini falsely represented to NationsBank, on at least three applications,
that (1) he owned $50,000 in real estate in Moore County, Tennessee;
(2) he had total assets of approximately $243,200; (3) he had a net
worth of approximately $220,400; (4) Elite Homes had assets totaling
approximately $652,000; (5) he had a Bachelor of Science degree in
Mechanical Engineering from Cleveland State University; and (6) his
1994 adjusted gross income was approximately $96,000. Based on
these false representations, NationsBank approved three construction
loans totaling approximately $1,117,100.

  On October 25, 1996, Strassini deposited a $47,500 check into his
business account at NationsBank that was drawn on his MBNA
America Visa credit card, even though he knew that the credit card
had a $7,500 limit. Strassini made several withdrawals from the
account before the check was returned for insufficient funds.

   On April 16, 1997, Strassini falsely submitted documentation to
Common Point Mortgage of Charlotte, North Carolina, representing
that (1) he had a monthly gross income of $30,000; (2) he had a net
worth of $1,490,576; (3) Elite Homes had been in business for 22
years; and (4) Elite Homes was worth $937,684. In addition, Strassini
submitted false Federal Tax Forms 1040 and 1120. Based on these
false representations, Common Point approved Strassini’s applica-
tions for mortgages of $480,200 and $438,800. Strassini submitted
similar false information to secure other loans, the proceeds of which
were deposited into his personal checking accounts.

   Based on these and other false representations, the grand jury for
the Western District of North Carolina charged Strassini with thirty-
nine violations of federal law.1 On December 4, 1998, Strassini filed
  1
   On November 7, 1997, the grand jury indicted Strassini for eleven
violations of 18 U.S.C.A. § 1344 (West 2000) (bank fraud) and six viola-
4                     UNITED STATES v. STRASSINI
a written plea agreement wherein he pleaded guilty to two counts of
bank fraud, one count of wire fraud, and one count of money launder-
ing. In the plea agreement, Strassini stipulated that there was a factual
basis for his guilty plea and that presentation of the factual basis was
deferred until sentencing.

   On December 7, 1998, Strassini appeared in court to enter his plea.
The district court, pursuant to Fed. R. Crim. P. 11 (Rule 11), informed
Strassini of the crimes to which he was pleading guilty by explaining
the elements of bank fraud, wire fraud, and money laundering. The
district court did not, however, discuss the element of materiality in
either the bank or wire fraud charge because, at the time of Strassini’s
plea hearing, this circuit had not included the element of materiality
in bank and wire fraud. See United States v. Romer, 148 F.3d 359,
370 (4th Cir. 1998) (reciting the elements of bank fraud without
including materiality); United States v. ReBrook, 58 F.3d 961, 966
(4th Cir. 1995) (reciting the elements of wire fraud without including
materiality). The district court accepted Strassini’s plea, finding that
it was "knowingly and voluntarily made and that [Strassini] under-
st[ood] the charges, potential penalties and consequences of the plea."
(J.A. at 84.)

   On June 10, 1999, after Strassini’s plea hearing but before his sen-
tencing hearing, the Supreme Court decided Neder v. United States,
527 U.S. 1 (1999). In Neder, the Court held that "materiality of false-
hood is an element of the federal mail fraud, wire fraud, and bank
fraud statutes." Id. at 25.

  On August 24, 1999, the district court held Strassini’s sentencing
hearing. Strassini again stipulated to the factual basis in the Presen-

tions of 18 U.S.C.A. § 1014 (West 2000) (making false statement to
obtain loans). On October 7, 1998, the grand jury indicted Strassini for
twenty-two additional violations of federal law, namely, one violation of
18 U.S.C.A. § 1341 (West 2000) (mail fraud), one violation of 18
U.S.C.A. § 1343 (West 2000) (wire fraud), seven violations of 18
U.S.C.A. §§ 1956(a)(1), 1956(h), 1957 (West 2000) (money laundering),
six violations of 18 U.S.C.A. § 1344 (bank fraud), six violations of 18
U.S.C.A. § 1014 (making false statements to obtain loans), and one vio-
lation of 18 U.S.C.A. § 1512(c)(2) (West 2000) (witness tampering).
                       UNITED STATES v. STRASSINI                        5
tence Report and the district court entered guilty verdicts on all four
pleaded counts. Nothing was said regarding Neder or materiality from
any party or the district court, and Strassini did not attempt to with-
draw his plea. The district court sentenced Strassini to 72 months
imprisonment on each count, to be served concurrently, and $212,383
in restitution to his victims. Strassini filed a timely notice of appeal
to this court.

   On appeal, Strassini challenges the validity of his guilty plea, argu-
ing that the district court’s omission of the element of materiality in
his bank and wire fraud charges during the Rule 11 hearing makes his
plea unknowing and involuntary, which, if true, would render the plea
constitutionally invalid. Accordingly, Strassini argues that he should
be permitted either to stand trial or plead anew.

                                    II.

   "Under the provisions of Rule 11(h), errors in plea proceedings are
normally evaluated under a harmless error standard." United States v.
Martinez, 277 F.3d 517, 524 (4th Cir. 2002). Because Strassini failed
to challenge or question his plea before the district court, however, we
review only for plain error. Id. ("[I]t is well established that forfeited
error is reviewed under a plain error standard."); United States v. Gen-
eral, 278 F.3d 389, 392 (4th Cir. 2002); see also United States v.
Vonn, ___ U.S. ___, 122 S. Ct. 1043, 1046 (2002) (holding that plain
error review is proper when a defendant fails to object to Rule 11
errors in the trial court). Accordingly, Strassini must establish that the
alleged Rule 11 error meets the exacting requirements of plain error
review, namely, (1) that the error occurred; (2) that the error was
plain; (3) that the error affected his substantial rights; and (4) that we
should exercise our discretion to notice the error because the error
seriously affected the fairness, integrity, or public reputation of judi-
cial proceedings. General, 278 F.3d at 393; Martinez, 277 F.3d at
524; United States v. Stewart, 256 F.3d 231, 252 (4th Cir. 2001).
Because both parties agree that the district court erred and that the
error was plain, we move to the third inquiry, whether the error
affected Strassini’s substantial rights.

                                    A.

   An error affects a defendant’s substantial rights "if it is prejudicial,
i.e., ‘[i]t must have affected the outcome of the district court proceed-
6                      UNITED STATES v. STRASSINI
ings.’" Martinez, 277 F.3d at 532 (quoting United States v. Olano,
507 U.S. 725, 734 (1993)). To determine whether Strassini’s substan-
tial rights were affected, we must consider: (1) Strassini’s knowledge,
shown by the record, at the time he pleaded guilty; (2) what informa-
tion would have been added to Strassini’s knowledge had the district
court complied with Rule 11; and (3) whether the proper information
would have influenced Strassini’s decision to plead guilty. See United
States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995) (stating that a "court
must determine whether the defendant’s knowledge and comprehen-
sion of the full and correct information would have been likely to
affect his willingness to plead guilty" (internal quotation marks omit-
ted)). Under plain error review, "the defendant bears the burden of
persuasion with respect to prejudice." Martinez, 277 F.3d at 532 (cit-
ing Olano, 507 U.S. at 734); see also Vonn, 122 S. Ct. at 1046 ("We
hold that a silent defendant has the burden to satisfy the plain error
rule."). Accordingly, Strassini must demonstrate that he would not
have entered into his plea agreement with the Government and would
not have pleaded guilty in his plea hearing if the district court had
complied with the requirements of Rule 11 and included the element
of materiality in its recitation of the bank and wire fraud charges. See
Martinez, 277 F.3d at 532 ("Martinez must demonstrate that, absent
the Rule 11 errors, he would not have entered into his plea agreement
with the Government.").

   Strassini points to his own comments in his plea hearing that the
harm to NationsBank was not "material" because NationsBank was
never at a risk of loss and he repaid the loans as evidence that he
would not have pleaded guilty had he known that materiality was an
element of bank and wire fraud.2 Viewed in isolation, these comments
    2
    The dissent characterizes Strassini’s statement as showing "Strassini
thought that his false statements to the lending institution were not mate-
rial because the statements, according to him, were not important to the
institutions’ decisions to make construction loans." Post at 12. To the
contrary, Strassini stated that he thought he did not commit a crime "be-
cause [he] did not harm anybody." (J.A. at 82.) Strassini believed that he
did not harm the lending institutions because "they were never at risk of
loss," "I was never thirty days late in 18 months," "[t]hey were paid back
in full," and "nobody that I did business with had a loss or was at risk
of loss." (J.A. at 82.) Strassini’s statement at the plea colloquy thus
                       UNITED STATES v. STRASSINI                         7
might be persuasive if, as a defense to bank and wire fraud, Strassini
could have asserted that he had repaid the financial institutions the
money they lent him or that the financial institutions were never at a
risk of loss. There are no such defenses, however, to bank and wire
fraud. The element of materiality in the bank and wire fraud statutes
requires only that the Government show that the false or fraudulent
information was or could have been material to the financial institu-
tion’s decision to grant the loan. See Neder, 527 U.S. at 22. Material
information is that which "ha[s] a natural tendency to influence, or
[is] capable of influencing, the decision of the decisionmaking body
to which it was addressed." United States v. Gaudin, 515 U.S. 506,
509 (1995) (internal quotation marks omitted). As discussed in part
II.B below, Strassini admitted several times that he submitted false
information to obtain loans. Accordingly, the false information was
material.

   In any event, Strassini’s acceptance of the plea agreement was not
entirely predicated on his belief that materiality was not an element.
Strassini would have faced thirty-nine separate criminal charges if he
had gone to trial, resulting in a potential sentence of 991 years impris-
onment and $31.5 million in fines.3 Under the plea agreement, in con-

shows that Strassini thought that his false statements to the lending insti-
tutions were not material because the lending institutions were not at risk
of loss. Materiality, however, does not concern whether there was a risk
of loss; it requires only that the lending institutions would reasonably
rely on Strassini’s false statements. See Neder v. United States, 527 U.S.
1, 22 n.5 (1999). As discussed infra note 4, Strassini’s counsel’s plea for
leniency during sentencing neither demonstrates that his false statements
were not material, nor can be substituted for Strassini’s stated rationale
at the plea colloquy.
   3
     Five of the money laundering counts, pursuant to 18 U.S.C.A.
§ 1956(a)(1), each carried a potential separate sentence of twenty years’
imprisonment plus a fine of $500,000. The other two money laundering
counts, pursuant to 18 U.S.C.A. §§ 1956(h), 1957, carried potential sen-
tences of thirty years and ten years imprisonment, respectively. The sev-
enteen bank fraud counts, under 18 U.S.C.A. § 1344; the twelve false-
statements-to-obtain-loans counts, under 18 U.S.C.A. § 1014; the mail
fraud count, under 18 U.S.C.A. § 1341; and the wire fraud count, under
8                     UNITED STATES v. STRASSINI
trast, Strassini only faced a potential sentence of 100 years
imprisonment and about $5 million in fines and, importantly, the
agreement also had stipulations that the Government would recom-
mend downward departures if Strassini cooperated and accepted
responsibility. Thus, although Strassini did not know that materiality
was an element of bank and wire fraud at the time he pleaded guilty,
if the district court had correctly advised Strassini regarding material-
ity, there is no reason to believe that Strassini would have sought to
withdraw from the plea agreement. Cf. Martinez, 277 F.3d at 533
("Martinez faced the choice of proceeding to trial on eight charges
with a potential maximum penalty of 160 years’ imprisonment and
$7.5 million in fines, or accepting a plea which reduced his potential
exposure to prison by sixty years, [and] reduced his financial expo-
sure by $1.5 million . . . . Thus, even if Martinez had been correctly
advised . . ., there is no reason to believe he would have sought to
withdraw from the plea agreement."). Strassini, therefore, has failed
to demonstrate that the district court’s Rule 11 violation affected his
substantial rights.

                                   B.

   Moreover, even if Strassini could demonstrate that the error
affected his substantial rights, the error did not seriously affect the
fairness, integrity, or public reputation of judicial proceedings
because there was "overwhelming" and "essentially uncontroverted"
evidence of materiality. Cf. United States v. Cotton, ___ U.S. ___,
122 S. Ct. 1781, 1786-87 (2002) (failure by government to include
necessary element in indictment); Vonn, 122 S. Ct. at 1046 (failure to
object to Rule 11 error during plea hearing); Johnson v. United States,

18 U.S.C.A. § 1343, each carried a potential separate sentence of thirty
years imprisonment plus a fine of $1,000,000. The witness tampering
count, under 18 U.S.C.A. § 1512(c)(2), carried a potential one year sen-
tence. Under the indictments, therefore, Strassini faced a potential sen-
tence of 991 years imprisonment and $31.5 million in fines.
  Moreoever, Strassini explicitly admitted that he was guilty of at least
the twelve counts under 18 U.S.C.A. § 1014 in the Rule 11 hearing.
These counts alone would amount to a potential sentence of 360 years
imprisonment and $12 million in fines.
                        UNITED STATES v. STRASSINI                         9
520 U.S. 461, 469-70 (1997) (failure by district court to submit neces-
sary element of offense to jury). In this regard, Strassini has explicitly
admitted that he submitted false, material information to financial
institutions to obtain loans by stipulating to the factual basis of his
crimes as found in the Presentence Report. The Presentence Report
details at least eight separate instances where "Strassini submitted
fraudulent loan information" to financial institutions and, "[b]ased on
these false and fraudulent representations," the financial institutions
lent Strassini money to which Strassini did not object. (J.A. at 233-36
(emphasis added).) Furthermore, Strassini admitted multiple times
that he submitted false, material information to financial institutions
to obtain loans. (See, e.g., J.A. at 120 (Strassini’s attorney stating,
"[Strassini] has [never] denied, nor does he deny now submitting false
information in support of loan applications" (emphasis added)), 145
(Strassini stating, "I submitted some false information to obtain loans
to build houses." (emphasis added)).)4 Because there is overwhelming
  4
   Despite the multiple admissions in the Presentence Report and the
record that Strassini made material, false statements to obtain loans,
Strassini asserts on appeal that the following statement by his attorney
during his sentencing hearing shows that the information he presented to
the financial institutions was not material because the financial institu-
tions were not lending based on what he told them:
      Our position is that [Strassini] did what [the Government] say[s],
      that he has misrepresented himself, he presented income tax
      returns that were inaccurate and he has played fast and loose
      with the truth on any number of occasions when he went to
      banks to borrow money, but that because of the nature of the
      construction business, they weren’t lending based on what he
      told them. What they were lending on — these were construction
      draws. He told them I want to build a house, they said here’s
      $10, you come back when you bought $10 worth of nails, we
      want to see the receipt. . . .
(J.A. at 107-08.) We reject this interpretation for three reasons.
  First, Strassini’s attorney made this statement in a request for leniency
to show the district court that Strassini was not a regular criminal who
went "into [a] bank and said give me $20,000, [ ] put the $20,000 in his
pocket[,] and left town." (J.A. at 108.) In context, Strassini’s attorney is
simply alleging that the financial institutions also required that Strassini
constantly prove that he was using the money for construction and that
Strassini always provided that proof. A claim that the financial institution
10                     UNITED STATES v. STRASSINI
and essentially uncontroverted evidence that Strassini submitted false,
material information to obtain loans, even if the Rule 11 error affected
Strassini’s substantial rights and Strassini would not have pleaded
guilty, we would not recognize the error.

                                   III.

   In conclusion, Strassini has presented no evidence to demonstrate
that he would not have pleaded guilty had he known that the Govern-
ment would have had to prove materiality in his bank and wire fraud
charges. Based on this lack of evidence, and based on the staggering
potential sentence that Strassini would have faced at trial, we con-
clude that Strassini has not shown that his substantial rights were vio-
lated by the exclusion of the element of materiality in the bank and
wire fraud charges to which he pleaded guilty. Furthermore, because
there is overwhelming and essentially uncontroverted evidence that
Strassini submitted false, material information to obtain loans, we

also requires proof of proper use of its money for a loan does not indicate
that it did not care about or require other evidence of loanworthiness,
such as financial ability to repay the loan. To claim otherwise is ridicu-
lous and simply not credible.
  Second, Strassini’s false statements were clearly material because they
"have a natural tendency to influence, or [are] capable of influencing, the
decision of the decisionmaking body to which it was addressed." Gaudin,
515 U.S. 506, 519 (1995) (internal quotation marks omitted); see also
Neder, 527 U.S. at 22 n.5 (holding that materiality is what "the maker
of the representation knows or has reason to know that its recipient
regards or is likely to regard . . . as important" (emphasis added)). Thus,
the proffered information only must have "the natural tendency to influ-
ence" a decisionmaker’s decision, and proof that the banks actually relied
on Strassini’s submitted information is not necessarily required. Cf.
Neder, 527 U.S. at 24-25.
  Finally, one potentially ambiguous statement by counsel cannot under-
cut the overwhelming evidence and personal testimony by Strassini that
he made false misrepresentations to support his loan applications and that
the banks lent him money based on those false representations. Strassini
has never denied making these false representations and has never stated
that he would have claimed otherwise at trial.
                       UNITED STATES v. STRASSINI                        11
decline to recognize the error because the error did not seriously
affect the fairness, integrity, or public reputation of the judicial pro-
ceeding. For the foregoing reasons, Strassini’s challenge to the valid-
ity of his conviction is without merit, and we affirm.

                                                              AFFIRMED

MICHAEL, Circuit Judge, dissenting:

   I respectfully dissent. If John D. Strassini had known at his Rule
11 hearing that materiality was an element of the crimes of bank and
wire fraud, he would not have pled guilty. This lack of knowledge,
which came about through plain error, led Strassini to forego one of
his substantial rights, the right to a jury trial. Allowing Strassini’s ill-
advised guilty plea to stand, particularly when he vigorously contests
the government’s claim of materiality, would seriously affect the
"fairness, integrity or public reputation of judicial proceedings."
United States v. Olano, 507 U.S. 725, 736 (1993) (quotation omitted).
Accordingly, I would vacate Strassini’s conviction and allow him to
enter a new plea.

                                    A.

   The majority concludes that "although Strassini did not know mate-
riality was an element of bank and wire fraud at the time he pleaded
guilty, if the district court had correctly advised Strassini regarding
materiality, there is no reason to believe that Strassini would have
sought to withdraw from the plea agreement." Ante at 8. I disagree.
The record supports Strassini’s claim that had he been correctly
advised of the elements of the crimes to which he pled guilty, he
would have forgone the plea and exercised his right to a jury trial. See
United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995) ("The court
must determine whether the defendant’s knowledge and comprehen-
sion of the full and correct information would have been likely to
affect his willingness to plead guilty.") (quotation omitted). Strassini
signed his plea agreement on December 4, 1998; his Rule 11 plea
hearing was held three days later, on December 7, 1998, the date his
trial was scheduled to start. J.A. 7. As of November 25, 1998, less
than two weeks before the scheduled trial, both sides — Strassini and
the government — were filing pre-trial motions in anticipation of a
12                    UNITED STATES v. STRASSINI
trial. Id. At oral argument, defense counsel said that by December 4,
when Strassini decided to plead guilty, subpoenas had already been
issued to trial witnesses. Counsel for the government conceded that
"strong preparation" had been made for the trial. Thus, the record
establishes that until shortly before December 4, 1998, both sides
were expecting a trial.

   What happened, then, to lead Strassini to change his mind and
plead guilty? The record provides a clear answer. Nine days before
trial, Strassini’s trial counsel informed him, incorrectly, that the gov-
ernment did not have to prove materiality in order to convict him of
the bank and wire fraud charges. At the Rule 11 hearing, the court
granted Strassini permission to make a statement. Strassini’s state-
ment, which explains his decision to plead guilty, bears directly on
the question of whether he would have gone to trial but for his misun-
derstanding about the materiality element:

     I honestly up until nine days ago had the belief . . . I was
     not guilty of committing a crime . . . . Once [trial counsel]
     showed me the decision of the Supreme Court that showed
     the defense of the four parts, you know, of the crime, the
     materiality was removed. And that was my contention and
     defense that they were never material, and therefore, I didn’t
     think it was a crime.

J.A. 82. (Strassini thought that his false statements to the lending
institutions were not material because the statements, according to
him, were not important to the institutions’ decisions to make con-
struction loans.) Strassini could not have been more clear in explain-
ing his decision to accept a plea rather than exercise his right to a jury
trial. Up until a few days before trial, he believed he was innocent of
the bank and fraud charges because he did not think that the govern-
ment had to prove materiality, though he knew the government could
prove the other elements of the crimes. His decision to plead guilty
thus rested upon his erroneous understanding that materiality was not
an element of the bank and wire fraud offenses — a misunderstanding
that went uncorrected by the district court or the government.

  The majority suggests that Strassini misunderstood the meaning of
materiality. According to the majority, Strassini’s statements at the
                      UNITED STATES v. STRASSINI                     13
plea hearing indicate that he "thought that his false statements to the
lending institutions were not material because the lending institutions
were not at risk of loss." Ante at 6 n.2. However, when Strassini’s
statements at the plea hearing are read in their entirety, they reveal
that while Strassini did not believe that his false statements harmed
the banks, he also believed that his false statements were not impor-
tant to the banks’ decision to lend him money. The Supreme Court
case, United States v. Wells, 519 U.S. 482 (1997), that Strassini
looked at, and mistakenly relied upon to conclude that the govern-
ment did not have to prove materiality, begins its substantive discus-
sion by defining materiality. Wells defines materiality as "hav[ing] a
natural tendency to influence, or [being] capable of influencing, the
decision of the decisionmaking body to which it was addressed." Id.
at 489 (quotation omitted). Thus, at the time of his plea hearing,
Strassini was aware of what materiality would mean if it applied in
his case. And his defense that his false statements to the banks were
not important to their decisions to approve his construction loans falls
squarely within this correct understanding of materiality.

   The majority further argues that because the government had over-
whelming evidence of materiality, Strassini would not have pro-
ceeded to trial even if he had realized that the government needed to
prove materiality. Strassini’s actions do not support the majority’s
argument. Rather, his actions until right before the plea agreement
and his statement at the Rule 11 hearing all indicate that, regardless
of the strength of the government’s case, he would not have pled
guilty if he thought the government had to prove materiality. Again,
Strassini did not call off the dogs and plead guilty until his lawyer
told him, erroneously, that the government did not have to prove
materiality.

   The majority also emphasizes (1) that if Strassini had gone to trial
he would have faced a potential sentence of 991 years imprisonment
and up to $31.5 million in fines and (2) that under the plea agreement
he faced only a potential sentence of 100 years imprisonment, about
$5 million in fines, and the prospect that the government might rec-
ommend a downward departure. The majority then suggests that the
prospect of a lighter sentence must have influenced Strassini’s deci-
sion to plead guilty. I doubt, however, that a 40-year-old defendant,
like Strassini, would see much difference between the risk of 100
14                    UNITED STATES v. STRASSINI
years in prison and the risk of 991 years in prison. Even if the govern-
ment has a strong case, a defendant facing this choice might well opt
to exercise his right to a jury trial, betting on the long odds of acquit-
tal. Every defendant has the right to a jury trial and that right exists
regardless of the strength of the government’s case. In this case, the
record demonstrates that, wisely or not, Strassini would have exer-
cised his right to a jury trial and would not have pled guilty if he had
been correctly informed of the elements of the crimes alleged in the
indictment. Accordingly, Strassini has demonstrated that the district
court’s plain error in failing to advise him of the elements of the
crimes charged affected his substantial right to a jury trial.

                                   B.

   The majority concludes that even if Strassini could demonstrate
that the Rule 11 error affected his substantial rights, "the error did not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings because there was ‘overwhelming’ and ‘essentially
uncontroverted’ evidence of materiality." Ante at 8. Again, I must dis-
agree.

   First, we cannot refuse to remedy plain error in the Rule 11 context
just because there is evidence that might allow a finding of guilt.
While a central part of our inquiry is whether the proceedings "re-
sulted in a fair and reliable determination of guilt," United States v.
Cedelle, 89 F.3d 181, 186 (4th Cir. 1996), the determination of
whether a Rule 11 error should be recognized does not turn solely on
a defendant’s innocence. Rather, "[a]n error may ‘seriously affect the
fairness, integrity or public reputation of judicial proceedings’ inde-
pendent of the defendant’s innocence." Olano, 507 U.S. at 736-37
(emphasis added).

   Second, I disagree with the majority that there is overwhelming
and uncontroverted evidence of materiality in this case. Ante at 8. A
close reading of the indictment, plea agreement, and plea colloquy
indicates that at no time prior to, or during, the Rule 11 inquiry did
the government allege that the misrepresentations made by Strassini
were material. J.A. 34-62, 67-70. To the extent there is evidence of
materiality, it is found in the presentence report (PSR), which as the
majority points out, states that "Strassini [in several instances] sub-
                      UNITED STATES v. STRASSINI                     15
mitted fraudulent loan information" to financial institutions and
"based on these false and fraudulent representations," the financial
institutions lent Strassini money. J.A. 233-36. Yet defense counsel
specifically objected to these statements in the PSR at the sentencing
hearing. Counsel reiterated Strassini’s persistent contention that the
banks did not lend Strassini the money based on his misrepresenta-
tions but "because of the nature of the construction business, they
weren’t lending based on what he told them. What they were lending
on — these were construction draws." J.A. 107. That is, Strassini told
the banks that he wanted "to build a house, they said here’s $10, you
come back when you bought $10 worth of nails, we want to see the
receipt. That’s the way every one of these loans has proceeded." J.A.
107-08.

   The majority says that these statements by defense counsel do not
"undercut the overwhelming evidence" of materiality. Ante at 10 n.4.
I cannot find this overwhelming evidence. For instance, with regard
to loans obtained from NationsBank, the PSR states simply that Stras-
sini provided false information to the bank about property he owned
and academic degrees he earned. The PSR concludes that "[b]ased on
these false and fraudulent representations . . . NationsBank approved
two construction loans." J.A. 233. Nowhere, however, does the PSR
recount specific facts to suggest that Strassini knew or should have
known that the bank regarded or is likely to have regarded such infor-
mation as important. See Neder v. United States, 527 U.S. 1, 22 n.5
(1999) (defining "materiality"). At most, the facts recounted in the
PSR give rise to an inference of materiality, to which Strassini has a
defense. He maintains that his false statements were not important to
the banks’ decisions to make construction loans. In addition, I do not
agree with the majority’s assertion that Strassini "admitted multiple
times" that he submitted "false, material information" to banks to
obtain loans. Ante at 9 (emphasis added). The majority points to
defense counsel’s statement that Strassini never denied, "nor does he
deny now submitting false information in support of loan applica-
tions." J.A. 120. The majority also notes Strassini’s statement that he
"submitted some false information to obtain loans to build houses."
J.A. 145. Strassini has never denied that he submitted false informa-
tion to financial institutions in applying for loans. What he has denied
is that the banks relied on this false information in making loans to
him. His statements at his sentencing hearing indicate only that he
16                    UNITED STATES v. STRASSINI
admits submitting false information. He has not admitted materiality.
In short, the record does contain uncontradicted evidence that Stras-
sini submitted false statements to his banks, but that evidence does
not settle the question of materiality.

   Finally, I must disagree with the majority’s conclusion that we
should not exercise our discretion to recognize the plain error at Stras-
sini’s Rule 11 hearing. I believe the "fairness, integrity, or reputation"
of judicial proceedings is undermined when it is clear that the defen-
dant would not have pled guilty but for plain error, and the defendant
has a defense theory that he would have submitted to the jury absent
the error. Indeed, we and other appellate courts have recognized plain
error in similar circumstances.

   In United States v. Gandia-Maysonet, 227 F.3d 1 (1st Cir. 2000),
the First Circuit recognized a plain Rule 11 error and vacated the
defendant’s conviction under circumstances similar to this case. In
Gandia-Maysonet the defendant pled guilty to one count of carjacking
and one count of using a firearm in connection with that crime. The
defendant later moved to set aside his plea on the grounds that he was
not adequately informed of the scienter element of the carjacking
offense at his Rule 11 hearing. Id. at 3. The First Circuit agreed that
the defendant had not been adequately informed of the scienter ele-
ment and concluded that although the facts proffered at the Rule 11
hearing would have provided an adequate basis for the plea, the fac-
tual basis for the scienter element was not overwhelming. Id. at 5.
Accordingly, the First Circuit was "far from certain that [the defen-
dant] would have agreed to plead guilty if he had fully understood
what the government had to prove as to scienter." Id. at 3. The court
noted that even though a jury could have inferred from the govern-
ment’s evidence that the defendant had the requisite intent, id. at 6,
"[n]othing in the factual scenario described by the government or
admitted by [the defendant] specifically referred to an intent on [the
defendant’s] part to cause death or serious bodily harm," id. at 4
(emphasis added). Because the evidence of the defendant’s intent was
not conclusive, the court recognized the Rule 11 error "because it
seriously affected the guilty plea colloquy’s fairness and integrity."
Id. at 6. Thus, the court vacated the defendant’s conviction and sen-
tence.
                      UNITED STATES v. STRASSINI                      17
   In United States v. David, 83 F.3d 638 (4th Cir. 1996), we noticed
a plain error in jury instructions and vacated the defendant’s convic-
tion for reasons that are applicable to this case. In David the defen-
dant was convicted by a jury for making a false statement to the
government. To establish such a violation, the government must
prove that the defendant knowingly or willfully made a false state-
ment to a government agency that was material to a matter within the
jurisdiction of the agency. Id. at 640. In an application to renew a fed-
eral firearms license, the defendant falsely responded that he was not
under indictment for a crime punishable by imprisonment for more
than one year. At the time, however, he was under indictment for
embezzlement, which carried a potential sentence of up to twenty
years’ imprisonment. At the defendant’s trial the district court failed
to instruct the jury on the element of materiality. Because the defen-
dant did not object to the error at trial, we reviewed the issue under
the plain error standard. In deciding whether to recognize the error,
we considered that there was "no evidence in the record as to whether
the district court determined that materiality had been proven beyond
a reasonable doubt." Id. at 648. We also noted that even if the court
could have determined that the false statement was material, "a jury
could conceivably have concluded, as [the defendant] maintained at
trial and continues to maintain on appeal, that materiality was not ulti-
mately proven." Id.

   In David, as in this case, the government’s evidence created a
strong inference of materiality, as surely an applicant for a firearms
license would or should know that the government would regard a fel-
ony indictment as important. But in David, as here, the defendant had
a defense theory. He maintained that he "would have been allowed to
continue as a firearms dealer even had he responded truthfully to the
indictment question." Id. Similarly, Strassini argues that the banks
approved his construction loans based on the nature of the loans and
not his false statements. Neither the indictment, nor the plea agree-
ment, nor the Rule 11 hearing advanced facts to show that Strassini’s
misrepresentations were material. To the extent that the PSR con-
tained such allegations, they were directly contested — on grounds of
immateriality — by Strassini at the sentencing hearing. At no time did
the district court determine that the government could prove material-
ity beyond a reasonable doubt. And, as was the case in David, "a jury
could conceivably have concluded" that Strassini’s defense theory,
18                     UNITED STATES v. STRASSINI
although weak by the government’s estimation, is valid. The problem
is that a jury never had the opportunity to weigh the evidence because
Strassini forfeited his right to a jury trial based on the district court’s
erroneous recitation of the elements of bank and wire fraud.

   Accordingly, I would conclude, in line with David, that the particu-
lars of this case, including "the fundamental nature of the error, leave
us with little doubt that this is the kind of case in which our limited
discretion under Rule 52(b) is appropriately exercised so as to pre-
serve the fairness, integrity and reputation of the judicial process." Id.
Strassini is entitled to have a jury decide whether his false statements
were material to the banks’ decisions to loan him money. See United
States v. Gaudin, 515 U.S. 506, 522-23 (1995). I would thus vacate
Strassini’s conviction and allow him to plead anew.
