Can Misleading but True Statements Be Prosecuted as Criminally False Statements Under 18 USC 1001(a)(2)? (3/27/25; 3/29/25)

In Thompson v. United States, ___ U.S. ___, ___ S.Ct. ___ (3/21/25), SC here and GS here, the Court held that the criminal conduct described in 18 U. S. C. §1014 relating to credit applications (“knowingly mak[ing] any false statement”) does not include misleading, but not false, statements. The opinion is relatively short, so because it is not encountered often in a tax context, I will just focus on the bottom-line holding in the prior sentence and ask that readers consider the related statute, 18 U. S. C. § 1001(a)(2), often appearing in tax prosecutions, that criminalizes “materially false, fictitious, or fraudulent statement[s].”

Does Thompson’s analysis mean that misleading statements cannot be prosecuted under § 1001(a)(2), often called the false statements crime?

The specific issue is not addressed directly in the DOJ Criminal Tax Manual Section 24.00, titled False Statements (18 U.S.C. § 1001), here. I direct readers’ attention to the discussion in Section 24.04, titled False Statements or Representations, starting on p. 4 and specifically to the discussion on p. 5 of Bronston v. United States, 409 U.S. 352 (1973), a perjury case holding that literally true but misleading statements under oath could not be prosecuted under the perjury statute. So, the question is whether literally true but misleading statements not under oath can be prosecuted under the false statements statute? As the CTM notes (p. 5), Bronston acknowledged a possible exception for a “criminally fraudulent statement” at p. 358 n. 4 as follows:

   n4 Petitioner's answer is not to be measured by the same standards applicable to criminally fraudulent or extortionate statements. In that context, the law goes "rather far in punishing intentional creation of false impressions by a selection of literally true representations, because the actor himself generally selects and arranges the representations." In contrast, "under our system of adversary questioning and cross-examination the scope of disclosure is largely in the hands of counsel and presiding officer." A. L. I. Model Penal Code § 208.20, Comment (Tent. Draft No. 6, 1957, p. 124).

Tom Goldstein--SCOTUSblog founder, Prominent Supreme Court Advocate, and High-Stakes Gambler--Indicted for Tax and Related Crimes and False Statements to Mortgage Lenders (1/17/25; 1/19/25)

Yesterday's big news in tax crimes was the indictment of Tom Goldstein, the co-founder of SCOTUSblog, a big-time Supreme Court advocate, and high-stakes gambler. The indictment lays out  major and many crimes including

• tax crimes (evasion § 7201, aiding and assisting § 7206(2), willful failure to pay tax § 7203)
• aiding and abetting 18 U.S.C. § 2) and 
• mortgage-related crimes (including false statements 18 USC § 1014) and 
• seeks forfeiture for mortgage-related crimes. 

A significant feature is Goldstein’s apparent addiction to high-stakes gambling and to other vices, which may include metaphorically wine, women, and song (with emphasis on women).

For those interested in delving deeper into the details, I provide a link to the indictment along with some of the more insightful articles on the subject. This will allow readers to pursue the matter further as they wish.

Links:

• Indictment, CL here. (The CL docket sheet is here, although it is sparsely populated with only the indictment now.)
• David Lat, SCOTUSblog Founder Tom Goldstein Hit With 22-Count Federal Indictment (Original Jurisdiction 1/17/25), here.
• Amanda Robert and Lee Rawles, SCOTUSblog founder Tom Goldstein faces tax evasion charges (ABA Journal 1/16/25), here.
• Francis Chung, Supreme Court blog publisher Tom Goldstein, a high-stakes poker player, indicted on tax charges (Politico with Associated Press 1/16/25), here.
• Added 1/19/25 1pm: Dan Morse, Supreme Court attorney who founded SCOTUSblog is charged in tax case (WAPO 1/17/25), here.

In the pattern of conduct for tax evasion, the indictment alleges cryptocurrency tax violations. (See ¶ 21, 24.n., 70-72, 81, & 83; there have been some other relatively recent cryptocurrency tax crimes items that I have been meaning to blog, but I will do that later, perhaps this weekend.)

My editorial comment is that the pattern of conduct alleged shows amazing hubris or chutzpah or some type of pervasive psychological or antisocial disorder.

Added 1/17/25 3:55pm: One comment I read on one blog write-up was that this case is ripe for a good storyteller such as Michael Lewis to write a book that should be a  bestseller.