United States v. Thompson

89 F.4th 1010

UNITED STATES of America, Plaintiff-Appellee, v. Patrick D. THOMPSON, Defendant-Appellant.

No. 22-2254

United States Court of Appeals, Seventh Circuit

Argued April 6, 2023

Decided January 8, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 21-cr-00279-1 — Franklin U. Valderrama, Judge.

Michelle Marie Petersen, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Chris C. Gair, Attorney, Gair Gallo Eberhard, LLP, Chicago, IL, for Defendant-Appellant

Before Flaum, St. Eve, and Pryor, Circuit Judges.

Pryor, Circuit Judge.

A jury convicted Patrick Thompson of making false statements about his loans to financial institutions, and the district court ordered him to pay restitution to cover interest that he still owed. Thompson raises various issues on appeal. For the reasons stated below, we affirm.

I. BACKGROUND

This case arises out of statements that Patrick Thompson made about his loans to the Federal Deposit Insurance Corporation ("FDIC") and one of its loan servicers.

A. Loans

Thompson took out three loans from Washington Federal Bank for Savings ("Washington Federal"). The first came in 2011 when Thompson borrowed $110,000 to make an equity contribution to the law firm he had just joined. For this loan, Thompson signed a promissory note. The note referenced a "property address"—Thompson's residence—and stated that the loan was "secured" by this property. The second loan, taken out in 2013, was for $20,000 to pay off a tax bill. The third, obtained a year later, was for $89,000 to repay a debt to another bank. Thompson did not sign any paperwork for these last two loans. In total, Thompson borrowed $219,000.

Washington Federal's president told Thompson he owed that amount, plus interest, in a 2014 email. The email even contained a chart describing the breakdown:

$110,000.00 (Loan Amount)

13,273.82 (Interest Amount)

$123,273.82

$ 20,000.00 (Loan Advance) 3-22-13

$143,273.82

$ 89,000.00 (Loan Advance)1-24-14

$232,273.82

Thompson later acknowledged that he owed $219,000, in addition to interest, on several occasions. In two separate loan applications in 2016, Thompson listed the outstanding balance of his Washington Federal loan as $249,050. He also kept copies of these applications. The next year, Thompson received a tax statement from Washington Federal indicating that his outstanding balance was $249,049.96. He gave this form to his accountant and retained a copy in an envelope— on the back of which he wrote "Washington Fed $249,049.96?"

B. Statements to Planet Home on February 23, 2018

Washington Federal failed in late 2017, at which point the FDIC became its receiver. This meant that the FDIC was responsible for recouping the money owed to Washington Federal before closing the bank down. To help with that task, the FDIC hired Planet Home Lending ("Planet Home")—a loan servicer.

Planet Home soon reached out to Thompson. It sent him an invoice in early 2018 showing that his Washington Federal account had a loan balance of $269,120.58. About a week later, on February 23, 2018, Thompson called Planet Home's customer service line.

During the recorded phone call, Thompson acted as though he had no recollection of the balance. He stated that "the numbers that you've sent me shows that I have a loan for $269,000. I—I borrowed $100,000 . . . I signed a Promissory Note . . . for $100,000." Thompson continued to insist that "I've never received an invoice" from Washington Federal and that "I have no idea where the 269 number comes from" because "this doesn't match with anything that I have." Indeed, Thompson claimed that he was "shocked" and "very perplexed" to see an invoice that was "significantly higher, and much more than . . . remotely . . . what we were talking about." He later clarified: "I know — I mean, I borrowed the money, I owe the money — but I borrowed $100 thou — $110 — I think it was $110,000 dollars . . . I want to quickly resolve all this, and — and — you know, what I owe." To cap it off, he read out the amount on the invoice—"$269,120.58"—and said "I dispute that."

C. Statements to the FDIC on March 1, 2018

A week later, on March 1, 2018, Thompson spoke on the phone with two FDIC contractors. Unlike the call with Planet Home, this one was not recorded, but the contractors testified about the conversation at trial.

At the time of the call, the FDIC contractors did not know how many loans Thompson had taken out. But they told Thompson that, according to the FDIC's records, he owed around $269,000. The contractors testified at trial that Thompson disputed this and explained that he borrowed $110,000 for "home improvement." These statements were likewise reflected in the notes the contractors took during the call.

Soon after, the contractors found out about Thompson's 2013 and 2014 loans. Once they discovered the other loans and called Thompson back on March 5, 2018, he again expressed doubt over the accuracy of the higher loan balance.

D. Settlement

Eventually, Thompson and the FDIC agreed to settle his debt. During negotiations, Thompson insisted that he did not owe interest on the three loans, and the FDIC thought that it might struggle to collect the interest because Washington Federal had not kept proper records of the transactions. So the two parties settled for $219,000—the amount Thompson owed without interest in December 2018.

II. PROCEDURAL HISTORY

A grand jury charged Thompson in April 2021 with two counts of violating 18 U.S.C. § 1014—a statute that criminalizes making a "false statement . . . for the purpose of influencing in any way the action" of the FDIC or a mortgage lending business.

Count One alleged that, on February 23, 2018, Thompson falsely stated to Planet Home that he "only owed $100,000 or $110,000 to Washington Federal and that any higher amount was incorrect." Count Two alleged that, on March 1, 2018, Thompson made the same false statement to the FDIC, and that he also falsely stated that he took out the first loan to fund home improvements.

After a six-day trial, a jury convicted Thompson of both counts.¹ Unlike Count One, Count Two was accompanied by a special verdict, in which the jury found that Thompson falsely stated (1) that he "only owed $110,000" and that "any higher amount was incorrect" and (2) that "the funds he received from Washington Federal were for home improvement."

Thompson moved for acquittal, largely on the same grounds he now raises on appeal. The district court denied his motion.

The district court then sentenced Thompson to a below-guidelines term of four months in prison, followed by a year of supervised release. In doing so, the court ordered him to pay the unpaid loan interest—$50,120.58—to the FDIC.

III. ANALYSIS

Thompson challenges both the denial of his motion for acquittal and the restitution order. He makes four arguments: (1) his statements were not "false statements" under 18 U.S.C. § 1014; (2) the jury lacked sufficient evidence to convict him; (3) the government constructively amended the indictment; and (4) the district court lacked the authority to order restitution. Like the district court, we conclude that the first three arguments are unpersuasive. We also conclude that the court properly awarded restitution to the FDIC.

A. False Statements Under 18 U.S.C. § 1014

Thompson first argues that, because his statements were literally true, they were not "false statement[s]" within the meaning of 18 U.S.C. § 1014. To violate § 1014, a defendant must (1) make a false statement or report, (2) for the purpose of influencing in any way the action of a financial institution, (3) with respect to a loan, application, or another subject listed in the statute. United States v. Wells, 519 U.S. 482, 490, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). We formally review the denial of a motion for a judgment of acquittal de novo, although in practice our review is for sufficiency of the evidence. United States v. Fitzpatrick, 32 F.4th 644, 648-49 (7th Cir. 2022). Questions of statutory interpretation such as this one, however, are reviewed under a true de novo standard. United States v. Thayer, 40 F.4th 797, 801 (7th Cir. 2022).

As Thompson sees it, he never outright lied. For example, rather than stating that he owed only $110,000, he just said that he borrowed $110,000—which is true even if he later borrowed more. Although Thompson acknowledges that his statements may have misrepresented what he owed, he contends that the statute does not reach statements that are misleading but literally true.

For support, Thompson relies on several cases involving 18 U.S.C. § 1014, but none stand for the proposition that a statement must be literally false to violate the statute. For instance, he invokes Williams v. United States, in which the Supreme Court held that writing a bad check does not amount to making a false statement. 458 U.S. 279, 284, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982). In particular, Thompson points to our description of Williams in United States v. Krilich, where we remarked that "a misleading implication differs from a false statement." 159 F.3d 1020, 1029 (7th Cir. 1998). But our point—and the Supreme Court's point in Williams—was that "a check is not a factual assertion at all" and it thus "cannot be characterized as 'true' or 'false.' " Williams, 458 U.S. at 284, 102 S.Ct. 3088. Thompson also invokes United States v. Staniforth, in which we reversed a conviction under § 1014 after concluding that a statement was "literally true." 971 F.2d 1355, 1361-62 (7th Cir. 1992), abrogated on other grounds by United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). Yet, in the same breath, we held that the statement also could not be understood in a misleading way and that "there is no evidence that the literal meaning is different from the parties' meaning." Id.

In the end, we need not decide whether Thompson's statements were literally true because...