Last week a unanimous U.S. Supreme Court issued an opinion in Thompson v. United States, 2025 WL 876266 (2025), holding that a statement that is literally true but allegedly misleading, is not a “false statement” under 18 U.S.C. § 1014. Thompson demonstrates the Court’s continued interest in the area of white-collar crime.
The Appellant was convicted of violating 18 U.S.C. § 1014, which prohibits “knowingly mak[ing] any false statement” to influence the FDIC’s action on any loan. Appellant had taken out three loans from the same bank totaling $219,000. The bank subsequently failed, and the FDIC assumed responsibility for collecting Appellant’s outstanding loan payments. When contacted by the FDIC about the amount of his debt, Appellant, on a recorded line, stated that there was a discrepancy with the amount the FDIC was claiming he owed ($219,000), stating, “I borrowed the money, I owe the money—but I borrowed … I think it was $110,000.” One of Appellant’s loans had in fact been for $110,000. Appellant was tried and convicted based on that statement. The Court found that while Appellant’s statement was misleading, it wasn’t necessarily false as is required by the statute.
The entire Court reasoned that “A misleading statement can be true. And a true statement is obviously not false. So basic logic dictates that at least some misleading statements are not false.” The Court provided the following illustrative examples of literally true, but misleading statements:
- If a tennis player says she “won the championship” when her opponent forfeited, her statement—even if true—might be misleading because it could lead people to think she had won a contested match.
- If a doctor tells a patient, “I’ve done a hundred of these surgeries,” when 99 of those patients died, the statement—even if true—would be misleading because it might lead people to think those surgeries were successful.
The Court found significance in the fact that the statute criminalized only “false statements” and does not contain the word “misleading:”
Statutory context confirms that §1014 does not cover all misleading statements. Again, the statute uses the word “false.” It does not use “misleading.” Many other statutes do, including other criminal statutes in Title 18 of the U. S. Code. See, e.g., 18 U.S.C. § 1038(a) (“convey false or misleading information”); §1365(b) (“renders materially false or misleading the labeling of … a consumer product”); §1515(b) (“making a false or misleading statement”); see also Securities Act of 1933, 48 Stat. 84–85, as amended, 15 U.S.C. §77q(a)(2) (prohibiting obtaining property through “any untrue statement of a material fact” or “any omission” that renders a statement “misleading”). Interpreting the word “false” to include “misleading” would make the inclusion of “misleading” in those statutes superfluous.
The Court acknowledged that the context surrounding literally true representations is still relevant to assessing whether a false statement has been made, and thus remanded the matter to the Seventh Circuit for a determination as to whether a reasonable jury could find that Appellant’s statements were false or simply misleading.
Thompson reflects a continuing trend by the Court to push back against a broader reading of federal fraud and public corruption statutes by prosecutors. The Court’s holding here will inevitably lead to further pushback on expansive readings of federal criminal and civil fraud statutes by prosecutors and plaintiffs, and embolden further challenges to future prosecutions based on false statement allegations. Next in line for the Court is Kousisis v. United States, 23-909, in which the Court will decide whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme.
For those of us who select juries in state and federal courts throughout the United States, we wonder out loud how this process will evolve after President Trump’s trials and appeals are all concluded or terminated. Many of us hire jury consultants and conduct expensive focus groups hoping to gain insight into the current mindsets of juries. I have been told by some jury consultants, with whom I have worked, that the “Trump Factor” has had little impact, in their opinion, on juries. Other consultants disagree wildly with this assessment. They argue that the Trump era has caused jurors to become more assertive and even aggressive in courtrooms, at times pushing back on the lawyers and even the trial judge.
For better or worse, President Trump has created a definitive brand that many people claim to understand or embrace. This is not a political statement, but a fact. Some jury consultants argue that so-called “MAGA” jurors are allegedly easy to spot, more rural, less educated, and more blue collar. Personally, I have not found all of these conclusions to be very accurate. Many wealthy, highly educated professionals also connect with certain MAGA touchstones. I remain concerned, but not yet convinced, of what the lasting Trump “dynamic” will be moving forward. To some degree it seemed to be unfolding weekly. It may go on for much longer than we all think. The issue is how does it impact a client participating in the bedrock of our constitutional protection which is trial by a jury of your peers.
A twenty-four-hour news cycle fueled by an energetic former and now second term President amid a seemingly endless and brutal Presidential campaign has taken its toll, in my opinion, on selecting a jury of one’s peers. The frontal assault on our justice and jury system is apparent and palpable. When President Trump was on trial, to some degree so is the American rule of law. That conclusion does not just come from President Trump’s words and actions but from the media, members of his new cabinet, vocal surrogates, members of congress and outspoken state legislators. For better or worse the motivations of judges, juries, prosecutors, law enforcement, and even the Supreme Court are now being called into question.
The critical question from a practitioner’s point of view is how one adequately defends a client in this new and dynamic legal and media environment. The facts and the law used to be fundamental guideposts to our adversarial system of justice. As an officer of the Court for over forty years, I respect the judicial system and personally strive to do all I can to instill confidence in a judicial system I still believe in. I have generally been blessed to have practiced before honest, hardworking, and dedicated jurists whom I respect whether they rule in my factor or not
While facts are subject to debate, alternative facts can now replace what once were considered immutable facts. The law is not universally respected. I’m not so sure these are the only factors at play but the same disquiet that has impacted the American electorate must invade the private confines of jury deliberations. Any defense attorney, selecting a jury must factor in these issues when representing a client charged with a serious civil or criminal offense.
Jury selection in federal court generally, but not always, moves far too swiftly for many practitioners. After years of practice, I have never fully understood why that is the case. Federal judges throughout the country advise counsel with pride about how swiftly they can seat a federal jury. As a former state prosecutor, it has been my experience that state jury selection is usually more lawyer friendly, and, therefore, more client friendly. It is generally far less rushed. Whether the jury selection process moves swiftly or more slowly trial counsel must be vigilant to monitor and detect a new set of still evolving prejudices, preconceptions or far worse. While some of these prejudices may be helpful to one’s client if properly harnessed, the converse also may be true.
A Trial Lawyer’s Toolbox Must Be Fully Utilized
What are the tools trial lawyers can utilize in 2025 to protect their clients’ interests? Many are well known, but some may have to be embraced and tweaked with more vigor moving forward. In federal court, defense counsel must do everything possible to slow down the selection process. Speed can lead to bad results for either side. Well before the day of jury selection, one should consider petitioning the court for a larger venire panel if you are litigating a case that may be newsworthy or controversial. The size of the jury venire will always impact the latitude the court gives the selecting lawyers. The larger the panel the more opportunity for either side to strike potential problematic jurors and still seat a jury in a reasonable timeframe. Always consider asking for more preemptory strikes if the case warrants it. Trial teams must perform social media checks, as quickly as possible, on their jury pool. This exercise can be done “in house” but if the resources are available, this task can be outsourced to one of many outside vendors who specialize in swift juror background checks.
Media, particularly film, sound, and audio, in the courtroom is slowly expanding throughout the United States. It is replacing artists sketches of court proceedings. Someday soon the federal courts may also embrace this practice as many state courts have done. I have never spoken to a juror or potential juror after a trial who thought that media attention assisted their job. Of course, reporters with whom I interact feel differently. I certainly respect both points of view. However, there are competing reasons why such publicity has been allowed by some courts.
Some of the reasons involving more judicial transparency are sound and prudent. I find the human drama played out in a well-tried case compelling. As a lawyer and a member of the public, I enjoy watching trials for professional and transparency reasons. As any practitioner can tell you, not only are you doing your best to manage the demands and often tight time frames placed on jury selection, but well-heeled clients bring their own list of increasing demands to a stressful but important process. Their life, livelihood, or future is on the line. No matter what side of the case you are on, a strictly enforced gag order may keep the parties and the process more pristine. Unfortunately, even gag orders are eroding and being routinely challenged in the current legal environment. Moreover, surrogates find many ways to routinely circumvent judicially mandated gag orders.
Jury questionnaires and/or supplemental jury questions are a must in any case but particularly one that grabs any significant media or public attention. Most judges are open to this process and, to one degree or another, embrace it. Avoid questions like “What are your favorite TV shows?” in lieu of a more meaningful quest for more substantive information about a potential juror. The thimbleful of incomplete information counsel receives sometimes minutes before jury selection begins is simply not enough to make life changing decisions. It is inadequate. A request for more information earlier should always be made.
What Are The Client’s Expectations?
Clients come to the process with their own set of increasing expectations and anxieties forged by the current legal and media environment. They read the papers or more likely watch online cable news shows that fuel their particular predilections. Clients have to be managed with the reality of what actually goes on in the courtroom, as well as the personality, integrity, and customs of the trial judges before whom we practice, which many practitioners are finding to be an increasingly more difficult task.
