Thompson v. United States
Oral argument transcript · No. 23-1095 · October Term 2024 · argued January 14, 2025 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Chris C. Gair, Chicago, Illinois, for the petitioner
- Caroline A. Flynn, Assistant to the Solicitor General, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 23-1095, Thompson versus United States. Mr. Gair. ORAL ARGUMENT OF CHRIS C. GAIR ON BEHALF OF THE PETITIONER
Chris C. Gair: Mr. Chief Justice, and may it please the Court: Section 1014 punishes only false statements, not true but misleading ones, and we know that from the text, the context in the statutory code, and this Court's precedents. At the outset, at its most basic, the word "false" means not true. It is, therefore, implausible to suggest that the statute that punishes false statements includes some types of true statement. "False" and "true but misleading" are different concepts. When Congress means to prohibit both, it does so explicitly using both terms, as it has in over 100 places in the United States Code. The government would put this all down to serial, thoughtless redundancy, but that violates the first principle of statutory Official 1 interpretation: to heed the text. The courts below erroneously held that Section 1014 punishes misleading statements in addition to false ones. We are asking the Court to correct that legal error and to remand to the courts below for a determination of whether Mr. Thompson's statements were false or only misleading. I welcome the Court's questions.
Justice Thomas: How would you define "false" and how would you define or distinguish -- and distinguish that from "misleading?"
Chris C. Gair: A -- a false statement is one that is not true when compared to the objective facts. A misleading statement is a statement that depends on the reasonable hearer's understanding. The term "misleading" is -- by its nature focuses on what the hearer hears. The term "false" relates to an objective fact about the universe.
Justice Thomas: Do you think there could be overlap between the two?
Chris C. Gair: There definitely are -- is overlap, Your Honor. Many, many false statements are misleading, and many misleading statements are false. But that does not mean they're synonyms. Official 1 As this Court has recognized on a number of occasions, including in the Macquarie case, where the Court dealt with Rule 10b-5 and held that 10b-5's two parts, the first penalized only express false statements and the second half-truths, which it referred to as misleading omissions.
Justice Thomas: Often, we see "false" and "misleading" paired, and you think of it -- there's a tendency to think of those two paired, false and misleading or false or misleading. Why wouldn't we do that here as opposed to just taking a literal view of false?
Chris C. Gair: So, when we see them in these hundred-plus statutes, it's always in the disjunctive, false or misleading, suggesting that those are two different things. And they do have different meanings because "false" is an objective question. If I -- if I say the sun rises in the west, that is a false statement, and it doesn't matter what the perception of the listener is. So I think that there is a good statutory context argument, a very good statutory context argument, for suggesting, when Congress says "false," it means false, not misleading. Otherwise, there would be a hundred statutes, from Official 1 the Commodities Exchange Act to the Securities Exchange Act, to a number of labeling statutes, down to the Peanut Statistics Act and the act that penalizes false or misleading statements by an officer of the Administrative Office of the U.S. Court to either make false or misleading statements. Congress chose not to do that here.
Justice Alito: I take it you are not arguing that the statute requires that the statement be literally false when viewed in isolation?
Chris C. Gair: No. I --
Justice Alito: Is that correct?
Chris C. Gair: I'm sorry, Your Honor.
Justice Alito: Is that correct? Is that your --
Chris C. Gair: That -- that -- that is correct.
Justice Alito: -- that is your argument?
Chris C. Gair: That -- that is not our argument. As this Court said in Bronston, and I would point the Court to Footnote 3, the -- the context that's relevant is the question that's asked, not the other circumstances. But, Official 1 obviously, it -- it would be absurd to try and judge a statement in isolation from the question that it answers.
Justice Jackson: So can I just ask you --
Justice Barrett: I -- I don't --
Justice Jackson: --- even --
Justice Barrett: Oh. Sorry.
Justice Jackson: -- even if we accept or agree with you that the statute covers only false statements, based on what you've said you believe a false statement is, I guess I don't understand how that helps your client in this case, because the amount of money that he borrowed or that he owed, I would think, is a knowable fact with one correct answer and that it doesn't rely on any sort of perception of the hearer or whatnot, however you've defined "misleading." So why -- why would we send this back for -- for the lower court to --
Chris C. Gair: Your Honor, I'd point out at the outset --
Justice Jackson: -- assess?
Chris C. Gair: I'm sorry.
Justice Jackson: Yeah.
Chris C. Gair: I'd point out at the outset, Official 1 Your Honor, that neither of the lower courts applied this standard to the facts of the case, and so this Court would be doing it for the first time. But the statements that were made here, the prosecutor explicitly told the lower court -- and this is Joint Appendix 144 -- what Mr. Thompson said was literally true, but it was not the whole truth. Mr. Thompson was never asked how much did you borrow and -- and did not, therefore, respond, I only borrowed $110,000.
Justice Jackson: My understanding was that he wasn't asked anything. He was sent an invoice after the bank closed, and the invoice listed the various loans that he had made and the amount of interest that, according to the statement, he owed in total. And so I don't understand why that's not tantamount -- his response, his, apparently, three times going back and saying, no, I owe $110,000, why is that not a false statement in that context?
Chris C. Gair: The -- the invoice didn't have the details. It said the unpaid principal balance was $269,000. So, if we take that as an implicit question, do you owe $269,000, his statement was: Official 1 I borrowed $110,000; I had a promissory note for $110,000. That statement, "I borrowed $110,000 on a $110,000 promissory note," is absolutely true. There were no other notes concerning the later advances. And what Mr. Thompson did, if you consider the invoice to be an implicit question, was effectively to change the terms of the question from how much the principal balance was, how much he owed, to what he borrowed in a particular note. And that brings it squarely within the rule of Bronston, where everyone knew that Mr. Bronston was being asked whether he had ever had a personal Swiss Bank --
Justice Jackson: Would we have to assess at all the reasonableness of that interpretation on his part? In other words, it seems to me that you could also interpret the invoice as asking him to verify, you know: How much did you borrow? How much do you owe? If that's the question, then to respond $110,000 when there are other obligations outstanding is false. Official
Chris C. Gair: I -- I -- I don't think so because the -- if the question is how much you owe, that's a different issue than borrow. And Mr. Thompson gave an answer that was actually true.
Justice Kagan: Sorry, how is it different from borrow?
Chris C. Gair: Because, obviously, what you owe depends -- a -- a great deal of what you owe is the interest on the loans. So Mr. Thompson, in effect -- in fact, borrowed $219,000. He got an invoice saying: You owe $269,000. And his response was a true response, but --
Justice Kagan: Well, but either way, it wasn't $110,000.
Chris C. Gair: That's right. And if he had said in response, "I only borrowed $110,000, and not a penny more," then his statement would have been false. But he didn't say that. What he said was: "I borrowed $110,000. I had a promissory note for $110,000." It's misleading, and we concede that, but it is not false.
Justice Barrett: Do you regard it --
Justice Sotomayor: I'm sorry. Go ahead.
Justice Barrett: Do you regard it as a Official 1 material omission case? I'm just trying to figure out -- I mean, I -- I agree with you there's a distinction between -- you know, as the Sixth Circuit opinion distinguished between material omissions and concealment and falsity. What do you think your case falls into? Is it a material omission of the other $169,000?
Chris C. Gair: I -- I -- I -- I think that's the right way to look at it, Your Honor. It's what this Court in Macquarie called a half-truth. Some information has been given. Other information that would be necessary to make the statement completely --
Justice Barrett: I --
Chris C. Gair: -- true has been left out.
Justice Barrett: -- I mean, I guess I just see a difference between what your client said and some of the hypotheticals in your brief. Like, you gave the example of a borrower who tells the lending institution: Well, I have a lower interest rate offered someplace else but doesn't mention that that requires a much bigger down payment. I can see that as an omission. It's a material omission insofar as you're trying to represent it as a better deal that you're trying to Official 1 get them to match. But it's -- but it's true, the assertion. I mean, it's -- it's -- you can separate out the interest rate from the amount of the down payment, and you look at what the statement is asserting. What it's asserting about the interest rate is true. I guess yours is just a little -- I -- I just see your client's as different because maybe -- maybe it's because what he's asserting -- and I think these are the questions you're getting from Justices Kagan and Jackson -- sounds an awful lot like: All I owe is $110,000.
Chris C. Gair: Well, the perception of the listener could have been that. But, in fact, it wasn't, as the testimony made clear that the -- the -- the listener actually thought that he just didn't know how much he borrowed.
Justice Kagan: Isn't it a lot --
Chief Justice Roberts: What --
Justice Kagan: -- like the --
Chief Justice Roberts: Go ahead.
Justice Kagan: -- like -- like the example that's given in Bronston, where you've entered a store 50 times and you say: I entered the store five times. And, I mean, that's true, in Official 1 the course of entering the store 50 times, you entered it five times. But it's obviously false if what the purport of the statement is, is I entered it five times rather than 50 times. And the same thing here. You know, I owed $110,000, rather than $260,000.
Chris C. Gair: I don't think so because the -- the principle set forth in Bronston in that footnote is that understating a number in response to a specific numeric inquiry is a false statement. Mr. Thompson did not understate the number in response to a specific numeric inquiry about how much he borrowed.
Justice Kagan: I guess I don't know exactly where this requirement of a specific inquiry comes from. I mean, there can be various contextual things that go to whether a statement is true or false. One of them is what did they ask you. But there are other ways in which -- you know, if I say I made a hundred thousand dollars and I'm speaking of Canadian dollars, but everybody listening to me is thinking you're in the United States, of course, they're thinking American dollars. I mean, that's just false if I say I made Official 1 a hundred thousand dollars and, in fact, I made $70,000 or $130,000, or whichever way the exchange rate goes. (Laughter.)
Justice Kagan: But, you know, so I guess I don't get this, like, oh, it's got to be an inquiry. I mean, there was a implicit inquiry here. The guy was calling to say: You got the number wrong. It's just as if somebody had said: Did we get the number wrong? And he said: You got the number wrong, it's $110,000, when it was, in fact, $260,000.
Chris C. Gair: I -- I don't think so, Judge, and -- or, Your Honor, because the -- the statement he made was tied to the personal note. And that was true also of the call with the FDIC. It -- it's true that a statement that is volunteered can be a false statement. So, if Mr. Thompson had walked into the bank and shouted, "I only borrowed $110,000, and not a penny more," that would be a false statement. But, instead, what happened is that there's this invoice about what he borrowed -- what he owed, and he made a statement about what he borrowed under his personal Official 1 note. And I think that the -- the -- the -- the clearest evidence of the -- that that is not a false statement comes from the government's concession on our motion for judgment of acquittal that --
Justice Sotomayor: I -- I'm a little -- I'm totally confused, okay? He took the statement the bank sent to him -- I'm quoting him: "I have no idea. The numbers you sent me shows that I have a loan for $269,000. I borrowed a hundred thousand, period." So, if he borrowed 219, 215, 150, 160, it wasn't the hundred thousand he said. I don't see how that's literally true. That's literally false.
Chris C. Gair: Your Honor --
Justice Sotomayor: He borrowed more than he said he did.
Chris C. Gair: Justice Sotomor -- mayor, I think that by putting the period after the $110,000, we're not getting the full context of his statement. He said a few more words about the circumstances, and then he said, "I had a note for $110,000," so that I think that his statement --
Justice Sotomayor: So he had a note for Official 1 110,000 might be true, but he was asked: What did you borrow? And he said: Only a hundred thousand.
Chris C. Gair: With respect, Your Honor --
Justice Sotomayor: I -- I -- I -- I don't understand how -- how -- this is, I think, where Justice Barrett is confused, which is, if the question is did you enter 50 times, and he says I only -- I entered 10 times, it's not literally true. It -- it's literally false that he entered 10 times.
Chris C. Gair: I agree that the -- the hypothetical is a false statement. But Mr. Thompson was not asked how much he borrowed. The implicit question is what the total debt was.
Justice Sotomayor: All right. So, as I read the jury instruction here, the jury instruction didn't use the word "misleading." It said: Was his statement false?
Chris C. Gair: Correct.
Justice Sotomayor: So the issue here now is would a rational juror have concluded that this was a false statement, correct?
Chris C. Gair: That's correct, Your Honor.
Justice Sotomayor: So I -- I hate the word "literally" because I don't know what it Official 1 means. I think that the question is: Did he make a false statement? And wouldn't -- could a rational jury have understood him to have made a false statement in the way that I read this?
Chris C. Gair: And that goes back to the question presented in the procedural history, Justice Sotomayor.
Justice Sotomayor: No, that goes back to do you get a directed verdict or -- or is this an issue that we leave for the jury.
Chris C. Gair: It -- it -- it is --
Justice Sotomayor: So do --
Chris C. Gair: No -- no --
Justice Sotomayor: -- we vacate and remand for the court below to decide that?
Chris C. Gair: I -- I think -- I think you have to vacate and remand for the court to below to decide it because neither of the courts below reached this issue. Both believed they were bound by a Seventh Circuit precedent called Freed to hold that it didn't matter whether it was false or misleading, the statute captured misleading statements.
Justice Sotomayor: All right. Thank you. Official
Justice Kagan: Well, however the district court --
Chief Justice Roberts: We're talking about -- we've been talking about what your client thought or knew. You know, maybe he did this or that. Does that matter at all? I mean, does it -- is there a -- is it a different case if your client can say: I thought they meant, you know, the amount of the first loan and it was a hundred, or -- or if there's evidence he went back and said: Well, they asked me this, you know, and I know they're talking about 269, but I think I might be able to fool them or something if I say 110? Is it the objective listener, what -- what -- how that person would understand it, or do you go back and say, well, if he knew about it, then it definitely is false, but if he had -- you know, was confused, then maybe it's not false? Is -- does the statement vary depending upon what the defendant knew?
Chris C. Gair: No, it doesn't, Mr. Chief Justice. First of all --
Chief Justice Roberts: So just to be Official 1 clear then, then that means all the discussion about what he thought and all that and how reasonable, that -- that's beside the point.
Chris C. Gair: It -- it's absolutely beside the point. Truth and falsity, when Congress uses the term "false," we -- because it often uses the term "misleading," which points to the perception of the listener, we know, when it says "false," it means something objective. Now --
Justice Kavanaugh: Well, there still has to be a mens rea, though, right?
Chris C. Gair: And there is. It has to be knowing --
Justice Kavanaugh: So it has to be false and you know it's false --
Chris C. Gair: Right. The -- the --
Justice Kavanaugh: -- to be convicted, correct?
Chris C. Gair: Right. The evidence of his mens rea -- the mens rea actually has two parts. One is that it has to be knowing, and the other, it has to be for the purpose of influencing the institution.
Justice Kavanaugh: Right.
Chris C. Gair: And there was evidence in the Official 1 record from which a -- a jury could have found the mens rea, and we haven't challenged that. But the -- but the mens rea is a separate element. And the question of falsity is not --
Justice Kagan: But are you saying that no reasonable jury could have found this statement to be false?
Chris C. Gair: That is our argument, Your Honor.
Justice Kagan: No reasonable jury could have found the statement "I owe $110,000" to be false?
Chris C. Gair: I -- yes, Your Honor. In the context of the question, if we go to the call with the FDIC, the FDIC agent said: We didn't ask a question. What we did was start out by talking about his personal note. And Mr. Thompson, in a question -- in a discussion about his personal note, said: I borrowed $110,000. That was absolutely true.
Justice Kagan: Yeah, but --
Justice Kavanaugh: The question presented --
Justice Kagan: I -- I -- I -- I mean, just -- because that is the important inquiry here, Official 1 isn't it, right? What you say that the district court was under the misimpression from the Seventh Circuit precedent that misleading was okay. But, in fact, the instructions made clear that the statement needed to be false, and the jury convicted on those instructions. And so, for you to win in the end, it has to be that not -- no reasonable jury -- I mean, that's a pretty deferential standard that we give to the jury -- no reasonable jury could have found this to be false.
Chris C. Gair: That's right, Judge -- Your Honor, and --
Justice Kagan: And if we don't think that, we should just say so, I take it, because, otherwise, like, what's -- what's the purpose of vacating if we don't think that that's a particularly hard question?
Chris C. Gair: Well, this Court would typically, for prudential reasons, not be the first court to apply the -- the law to the facts, and it would -- we think that the district court and the court of appeals are in a better position to assess that issue. They didn't do that because they made a mistake about the law. So I -- I do think that a rational -- Official 1 that no rational jury in this context could have found that. And, certainly, the district court could have made that determination but didn't reach it.
Justice Kavanaugh: The question presented was -- and this supports what you just said. The question presented was just the legal issue, right, not will this Court parse the statements about a loan for -- you know, I don't know. That's not what I thought we were granting cert on. I thought we were granting cert on a -- a legal question and we resolve the legal question.
Chris C. Gair: Justice Kavanaugh, I think that you're absolutely right. I mean, the invitation by the -- by my friends from the government here to delve into the facts is, I think, not surprising given the fact -- given the strength of our legal argument. But -- but this Court granted cert to determine whether misleading statements are -- in addition to false ones, are punished by the statute.
Justice Alito: All right. Well, tell me -- tell me again what is the difference between a statement that is false in context, not literally Official 1 false when viewed just by itself but false in context, and a statement that is misleading.
Chris C. Gair: So a -- a statement -- let's take an example of a statement that -- that might be misleading. If I go back and change my website and say "40 years of litigation experience" and then in bold caps say "Supreme Court advocate," that would be, after today, a true statement. It would be misleading to anybody who was thinking about whether to hire me or Mr. Francisco or Mr. Waxman, right? But a -- a false statement would be if I had not ever argued in the United States Supreme Court. So it -- it -- it -- it -- the --
Justice Alito: Well, that's mildly misleading -- maybe, at -- at best, it's -- I don't know that that's going to mislead anybody, but, at best, it's mildly misleading. (Laughter.)
Chris C. Gair: Well --
Justice Kagan: It -- it is, though, the humblest answer I've ever heard from the Supreme Court podium. (Laughter.) Official
Justice Kagan: So good show on that one. (Laughter.)
Justice Alito: I think your --
Chief Justice Roberts: Maybe not so good for Mr. Francisco and Mr. Waxman. (Laughter.)
Justice Alito: As -- as far as the question presented is concerned, okay. But, I mean, maybe this -- I don't know how this misleading idea even got into the case. This is just maybe sloppy work by the Seventh Circuit, but the -- the instruction was you have to find that it's false. You could have argued and -- that, no, it has to be literally false viewed by itself. You didn't argue that. In fact, my understanding is that the defense originally had asked for an instruction on literal falsity and then withdrew it, and then the jury found that the statement was false. And you're just saying no reasonable juror could -- could view this as false in context? That's an awfully hard argument. So what's the point of remanding this to the Seventh Circuit? Just as kind of a punishment for having introduced Official 1 this "misleading" idea into the case?
Chris C. Gair: No, I definitely don't think the Court would -- would want to do that, but this is an important statute that deals with people's dealings with sophisticated financial entities. And it is important for the Court to give some guidance on the question of whether a statement is misleading or false precisely because the statute is so important and so -- such broad application. As the Court knows, in the Wells case, this Court correctly found that there's no materiality element to the statute. So this statute could be used extremely broadly to punish a number of types of dealings between individuals and very sophisticated financial institutions --
Justice Gorsuch: Counsel, along those lines, in terms of whether a remand is worth it or not, I -- I -- I take it you -- you don't dispute that you've got a tough row to hoe with the standard and no reasonable jury could have concluded. But, here, we have, as you say, an incredibly sophisticated questioner, the federal government no less. And the question, if it is a question at all, it's a statement: You owe 269. He responds: Official 1 I borrowed 110. The government itself says it understood him to be confused about how much he borrowed and how much he owed. And, under those circumstances, you know, we can -- we can make a judgment, or we could maybe leave it to somebody else to do it in the first instance. Them's our choices. Is that about it?
Chris C. Gair: I -- I -- I think that's -- you've captured it, Justice Gorsuch. The -- the -- the --
Justice Gorsuch: Context here is not an -- a couple of unsophisticated entities or individuals who have never --
Justice Jackson: But I guess --
Justice Gorsuch: -- never had any financial dealings.
Chris C. Gair: I -- I --
Justice Gorsuch: But -- but it's -- but -- but -- but -- but you have a tough row to hoe.
Chris C. Gair: It -- it -- it's definitely a tough row to hoe whenever you're asking a -- a district court to find that no rational jury could have found something. But there's a lot of evidence from which we can make a solid argument, Official 1 I -- an argument that I believe is correct.
Justice Jackson: But, Mr. Gair, why hasn't --
Justice Gorsuch: Could you spin that out, please, first?
Chris C. Gair: Pardon me?
Justice Gorsuch: Could you spin that out?
Chris C. Gair: Yes. Three -- three data points. The -- the first is that the government conceded below that the statements were literally true. The second is that, as I've said, in the call with the bank, the -- the statement that was made was, "I borrowed $110,000, I had a personal note for $110,000," both true statements in the light of not a precise question or, indeed, even a question at all. And then the call with the FDIC was with these two FDIC examiners, and they made two comments that were very critical. The first is it was -- there was no question about how much he borrowed or how much he owed. Instead, they asked him about his personal note. And he said: "I Official 1 borrowed" -- "they loaned me $110,000 on my personal note," which was true. And both of the examiners and -- and the witness from the call center for the bank all testified that he didn't seem to know what it was he had borrowed. So I do think there's a -- a good basis for the district court to make this decision in the first instance, and I think that this Court should decide the important legal issue to make sure that prosecutors don't over-enforce this statute.
Chief Justice Roberts: Thank you --
Justice Alito: Well, what you just said --
Chief Justice Roberts: -- thank you, counsel. None of all this is pertinent on the home improvement loan statement, right? That's --
Chris C. Gair: Correct.
Chief Justice Roberts: You agree that's completely false?
Chris C. Gair: That is a false statement.
Chief Justice Roberts: Okay. Thank you. Justice Thomas? Justice Alito?
Justice Alito: Well, your last comment Official 1 is a -- is a fair one, but doesn't it go to a different question? It doesn't go to the question whether the statement was false in context. It goes to his -- whether he knew that it was false. It's a mens rea question. It's not a question of -- of the -- of the actus reus, which is the utterance of a false statement.
Chris C. Gair: I -- I agree with you that it goes to mens rea. But, if we were to take the perspective of my friends to -- to think that the perception of the listener mattered, this -- that evidence would bear on this question. We don't agree that perception matters. In fact, this -- the -- the government does not cite a single case from this Court suggesting that the question of truth or falsity depends on the perception of the listener. As a matter of fact, the -- the very concept of "misleading" is from the perspective of the listener, an objective listener, and Congress knows how to make that relevant when they want to.
Justice Alito: Well, I'm totally confused by your argument because, unless you're arguing literal falsity, then -- then falsity in context does depend on how people would understand Official 1 the statement. It does concern -- it does concern the perception of listeners.
Chris C. Gair: I -- I don't think so, Your Honor. I -- I think that the -- the -- "falsity" is an objective concept. If I say that the sun rises in the west, that's false, and it doesn't matter whether it misleads you or not.
Justice Alito: It may not concern the -- the -- the perception of the particular person to whom the -- the statement is directed, but it does concern the perception of some kind of listener --
Chris C. Gair: It --
Justice Alito: -- some -- otherwise, the -- the -- I don't understand the concept of "falsity" in context.
Chris C. Gair: Well -- well, if I make a statement and there's no listener at all, it is still capable of being true or false. And my -- my point is that Congress, over and over, tells us when it wishes the perception of the listener to count, by using a term that's explicit -- explicitly refers to the perception of the listener.
Chief Justice Roberts: Justice Sotomayor? Official 1 Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: Just he -- your client's already served the sentence, correct?
Chris C. Gair: Yes, he has, Your Honor.
Justice Kavanaugh: The prison time's already been served, so that's over. And what's still potentially at stake is restitution, is that --
Chris C. Gair: No, the restitution was resolved by the Seventh Circuit, and there is -- and it's been paid. So -- and -- and that's not an issue before this Court.
Justice Kavanaugh: Okay. So it's just the -- okay. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Just want to take one more crack at, along the lines of Justice Alito, those questions that he was asking you. So am I right -- and I kind of take this from your reply -- that you've backed off this idea that it should be literal falsity?
Chris C. Gair: I -- I think that the right way to say it is falsity in context of the Official 1 question.
Justice Barrett: Okay. So we're not talking about literal falsity because you talked a lot about that in your opening brief. Okay. So we're not talking about literal falsity. We're talking about falsity in context. You've suggested both in your briefs and then I think even more clearly today that the only context that matters when we're looking at cues is the question to whom -- to which the defendant was responding. Is that your position?
Chris C. Gair: Not -- not quite, Judge -- Your Honor. I'm sorry.
Justice Barrett: It's okay.
Chris C. Gair: I'm a trial lawyer. Justice Barrett, the context is the question that's asked, the statement that's made, and the objective facts. So, if the statement is very specific, if Mr. Thompson had said: I only borrowed $110,000, and not a penny more, and -- and that was essentially the charge, then that would be a false statement. So you have to look to the question, the answer, and the objective facts. Official
Justice Barrett: Okay. So it's not just the question. It can be surrounding circumstances, as well as the question?
Chris C. Gair: I would say the objective fact of what -- of what he actually borrowed. So --
Justice Barrett: Right, right, right, right.
Chris C. Gair: Yeah.
Justice Barrett: Right. I -- I understand that. But I'm just saying, you know, when we're trying to figure out what a statement communicates, I guess -- I mean, I guess I agree with Justice Alito about how communication works. If we're asking what a statement communicated, and Williams tells us there has to be some sort of statement, there's an assertion -- if you ask what that statement communicated, you have to have some basic understanding of how people use English. That's how the jury is going to decide would a reasonable person have found the statement to be false. So, I mean, I agree you don't look at any kind of idiosyncratic understanding, maybe, of the person on the other side of the table, but, I mean, you do have to have some kind of understanding of Official 1 how normal people would understand this in the context of the situation, correct?
Chris C. Gair: Just -- Justice Barrett, I disagree with that. And -- and -- and -- and so did this Court in the Bronston case. In the Bronston case, it was absolutely clear what the petitioner -- what the questioner was driving at. He wanted to know if the person had had Swiss Bank accounts. And the answerer said: Well, my company did. And it wasn't pursued. And so the situation is very analogous. If -- if Bronston's right, then we can't look at what the -- the perception of the listener was. We have to look at only the context of the question, the answer, and the objective facts.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So I guess I don't understand how, on remand, the Seventh Circuit could make the kinds of determinations that you said that they could make in response to Justice -- to Justice Gorsuch, and the reason is because we had a trial in this case. We had a trial in which, presumably, those very same arguments about what, you know, the statement meant to your client, what the bank Official 1 examiner said, et cetera, et -- cetera, were evidence that was presented to a jury that was then instructed that they were supposed to make a determination about whether his statement was false, right?
Chris C. Gair: That's correct, Your Honor.
Justice Jackson: Okay. So why isn't the Seventh Circuit's only potential response on remand to determine whether any reasonable jury, given that set of circumstances and evidence, could have reached the result it reached? I don't think the Seventh Circuit could just pretend as though the jury didn't make a determination in this case and answer the question does it think there was a false statement here, right?
Chris C. Gair: That's right. I think that it's very likely that the Seventh Circuit would remand to the district court that heard the evidence. And there is a very exacting standard, as -- Justice Jackson, as you know, for a motion for judgment of acquittal, and --
Justice Jackson: So help us to understand whether all of that is, like, really not Official 1 necessary because it's pretty clear that a reasonable jury could have made this determination. What is your best argument as to why, for example -- and I'll just give you the analogy from the government, the analogy about the -- the kid in the cookie jar, that the mom says, you know: How many cookies did you eat? Or did you -- did you eat cookies? Or whatever the -- the question is. And the kid actually ate -- and I'm now making this up -- 10 cookies. And he responds: I ate three. Why is that not a false statement?
Chris C. Gair: Your hypothetical -- the answer to your hypotheticals is actually twofold. If the mom had said: Did you eat all the cookies, or how many cookies did you eat, and the child says: I ate three cookies, when she ate 10, that's a false statement. But, if the mom says: Did you eat any cookies, and the child says three, that's not an understatement in response to a specific numerical inquiry.
Justice Jackson: All right. So here's the question here. We -- the question, I guess, in response to that answer is: Why wouldn't it be reasonable for a jury to interpret the submission of the invoice to be the kind of specific question Official 1 that would -- that would require him to provide an answer? I mean, we don't have a particular question. We have his interpretation of the question and then answering it in a certain way, which you say doesn't make it false. But, in the context of what a reasonable jury could have determined, I don't understand why -- what your argument is to why a jury couldn't have interpreted what happened here to be calling for a specific response to the question: How much do you owe?
Chris C. Gair: Well, I think it's -- it -- it -- it -- it's difficult to conceive of an assertion in an invoice as being a specific -- specific numerical --
Justice Jackson: Difficult, but impossible? The question is: Could a reasonable jury have interpreted it that way?
Chris C. Gair: I -- I don't think so, Justice Jackson, and the reason is, among others, that there wasn't a -- there wasn't a question posed at all. The witnesses testified that it had -- that he was -- or the evidence showed that he was talking about his personal note, not the total amount that he owed. Official 1 And the government conceded that what he said was, and I quote, "literally true" --
Justice Jackson: All right. Thank you.
Chris C. Gair: -- "but not the whole story."
Chief Justice Roberts: Thank you, counsel. Ms. Flynn. ORAL ARGUMENT OF CAROLINE A. FLYNN ON BEHALF OF THE RESPONDENT
Caroline A. Flynn: Mr. Chief Justice, and may it please the Court: Section 1014 prohibits any false statement. And like any other collection of words, a statement is false if it conveys an untrue message to the listener in context, even if the precise words used, considered in a vacuum, could possibly carry another meaning. So, here, when, in response to receiving an invoice telling Petitioner that he owed the FDIC $269,000, Petitioner then told the FDIC's agents that he was shocked by the letter, had no idea where the 269 number comes from, and had borrowed $110,000, he made a false statement because he clearly conveyed the message that he did not owe the higher amount. Official 1 And 12 members of the jury in this case, who were not given a specialized definition of what "false" means and, therefore, must have applied the concept as ordinarily understood, agreed. Indeed, on page 7 of his reply brief, Petitioner himself agrees that context obviously matters in determining whether a statement is false. I understood my friend to reiterate that position again today. So now it appears we're just debating what context the jury may consider as a matter of law. And to the extent Petitioner is arguing that you can only take account of the immediately preceding question, we urge the Court to reject any such rule. The jury should assess a speaker's meaning the same way the original listener would have: in light of other parts of the conversation and other circumstances that naturally bear on meaning. Our position in this case is not that "false" encompasses anything that might be characterized as misleading or any failure to disclose pertinent information. It is that a statement is untrue if it states only a portion of the truth on the subject it addresses in a context Official 1 where the statement would be taken as both accurate and complete. If, like Petitioner, the speaker knowingly conveys that untrue message and does it with a specific intent to influence the FDIC to not fully collect on its debt, that violates the statute. I welcome the Court's questions.
Justice Thomas: So it doesn't really matter in this case whether there is a difference between "false" and "misleading?"
Caroline A. Flynn: Our position in this case that Petitioner's -- is that Petitioner's statements were false. That's how the jury was instructed. Our position is just that you assess the falsity of something, you know, the inaccuracy of it, by looking to context and what -- whether a false message was imparted. There's been a lot of talk, though, today about what kind of rule the Seventh Circuit applied in this case, and I -- I think the crux of the Seventh Circuit's analysis completely aligns with what I just said. I think you can see this in particular at pages 10a and 13a of the petition appendix. On Official 1 10a, the Court said: Even if he never used the precise words, the implication of Petitioner's statements was that he owed Washington Federal no more than $110,000, something that was untrue. And then, on 13a, the court talks about the mistake -- unmistakable impression left by his statements and how the jury found in its verdict that he conveyed the message that he falsely stated that he only owed $110,000, and any higher amount was incorrect.
Chief Justice Roberts: So -- but, in -- in general, do you think there's any difference between the statutes that say "false statement" and the statutes that say "false and misleading?" Because it sounds to me that your -- would argue that when it says "false," that includes misleading statements in context. So is there any difference?
Caroline A. Flynn: We are not taking the position that the word "misleading" does no work in statutes in which it appears. We are -- we think there is some overlap between these concepts, as I understood my friend to agree. But, when we say something has to be false in context, we mean it has to state -- the statement itself has to state a -- a false message, it has to convey a false Official 1 meaning directly, not lead the listener down a path perhaps to a foreseeable conclusion that additional information might have obviated. But, here, when Petitioner says "I borrowed $110,000" in response to what was essentially a question from the FDIC saying, did you -- do you owe $269,000, that is directly conveying through his statement that he only owed that amount.
Justice Kavanaugh: Do you agree that --
Chief Justice Roberts: That's a --
Justice Kagan: But isn't what he said --
Chief Justice Roberts: I was going to say that's a tough -- that's tough to parse, it seems to me, in a lot of cases. I -- I mean, I'm not making these up. I think these are in the case. But, you know, a police officer pulls a person over, thinks he's drunk, says, you know, have -- have you been drinking? And the person says, "I've had one cocktail," when, in fact, he had one cocktail and four glasses of wine. I mean, is that -- is that treated differently under the "false" -- the statute that says just "false" and the statute that says "false and misleading"? I can see that being misleading, Official 1 but I'm not sure it would qualify as false under the literal meaning of the word.
Caroline A. Flynn: I don't think those would be treated differently under those two statutes. I believe that is a false statement because a reasonable juror could find in context that if an officer pulls somebody over and asks have you been drinking, they're asking for a complete account of how much you've been drinking. And when the person says "I had just one cocktail" --
Chief Justice Roberts: I didn't say "just."
Caroline A. Flynn: -- that implies -- oh, I'm sorry.
Chief Justice Roberts: He didn't say "just." In my hypothetical, it's, "I had a cocktail."
Caroline A. Flynn: I'm sorry. I was -- I was repeating from the brief.
Chief Justice Roberts: Or "I had one cocktail."
Caroline A. Flynn: Right. And I think, in context, a reasonable juror could find that the officer was asking for a complete account of how much the person had had to drink given that the Official 1 officer was clearly trying to determine whether or not they were inebriated and could not drive. And that's the kind of surrounding circumstance that we think is relevant here. And, that -- I mean, that is what this case comes down to, is whether --
Justice Gorsuch: Ms. Flynn, we didn't -- we didn't take this case to decide whether a reasonable juror could -- could -- could find that the defendant here in context made a false statement. As important as this case is, that's not why we took it. We took it to resolve whether the statute allows the government to pursue a theory of misleading rather than falsity, right?
Caroline A. Flynn: Well, I believe -- you took this case where the facts presented are a numerical understatement.
Justice Gorsuch: We -- we didn't take this case to resolve it on the facts. We took it to resolve a legal question, and the legal question is whether, as the Seventh Circuit held, this statute permits a conviction for not just false statements but misleading ones. And that is a gloss that the Seventh Circuit's put on the Official 1 statute. Are you here to defend that, or are you simply saying that even under a correct understanding of the statute, we would win and you guys should go ahead and decide what a -- no reasonable juror could have concluded otherwise?
Caroline A. Flynn: It's the latter, Your Honor, but I would add the qualification --
Justice Gorsuch: Really?
Caroline A. Flynn: -- that here, the only legal --
Justice Gorsuch: Really? You're asking us to apply to -- the statute to a fact-bound error correction question? That's -- that's a little strange. I -- I thought we took the case to decide whether the Seventh Circuit in Freed was correct that this statute permits convictions for misleading. Maybe we hold it does, in which case we affirm. Maybe we hold it doesn't, in which case we vacate and remand for this fact-bound question to be resolved by a lower court in the first instance. I mean, we're -- we're a court of review, not first view, right?
Caroline A. Flynn: Well, as the case has Official 1 narrowed during the briefing, the only legal dispute I take to be between my friend and -- and us is what context matters in assessing --
Justice Gorsuch: Okay.
Justice Kavanaugh: So you're not --
Caroline A. Flynn: -- falsity in context by --
Justice Gorsuch: But you're not denying that falsity is required by this statute?
Caroline A. Flynn: We are not denying that, no.
Justice Gorsuch: And are -- and you're not --
Caroline A. Flynn: We've not denied that.
Justice Gorsuch: I take it now maybe you're also agreeing that misleading is not enough?
Caroline A. Flynn: So it depends on what you mean. We believe that --
Justice Gorsuch: Falsity in context is what's required by the statute.
Caroline A. Flynn: Yeah.
Justice Gorsuch: And -- and more is not permitted. So, if it's misleading in another sense, that's not good enough.
Caroline A. Flynn: If it is misleading in the sense that a person makes a -- a numerical understatement and underreports, if you're using Official 1 the word "misleading" to describe that, we do think that is sufficient, but we do think the better way to understand this concept is falsity in context --
Justice Kagan: No, but, Ms. --
Caroline A. Flynn: -- for the reason --
Justice Gorsuch: So, if we hold falsity in context is the standard, why wouldn't we reverse -- vacate and remand? Because that's not what the Seventh Circuit held.
Caroline A. Flynn: Well, I pointed the Court to two instances --
Justice Gorsuch: You --
Caroline A. Flynn: -- in which I do believe the court -- the Seventh Circuit --
Justice Gorsuch: Yeah, but it said --
Caroline A. Flynn: -- reasoned that in context.
Justice Gorsuch: -- Freed -- Freed is our standard, and Freed is either falsity or misleading in this dichotomy it created, and it proceeded to say these statements were misleading.
Caroline A. Flynn: The court also quoted the portions of Freed where the Seventh Circuit said that you look at the -- the natural import of what the speaker is trying to say.
Justice Gorsuch: I -- Official
Justice Kavanaugh: It said --
Justice Gorsuch: Go ahead, please.
Justice Kavanaugh: -- it -- it said on 9a: "In the end, we need not decide whether Thompson's statements were literally true because his argument runs head-first into our precedent. We already decided in Freed that Section 1014 criminalizes misleading representations." Do you agree with that?
Caroline A. Flynn: So, if you read that sentence to mean all misleading representations, no, we do not agree with that. But, if the --
Justice Kavanaugh: Okay. And that's the -- that's the question I thought we -- I agree with Justice Gorsuch. I mean, we say it all the time, that we don't --
Justice Kagan: And why don't you agree with that? Like, what -- what misleading statements do you think they had in mind that you would walk away from?
Caroline A. Flynn: Well, it's hard to know because, of course, the Seventh Circuit was thinking about the facts of this case when it used the word "misleading," and that's why I'm trying to be careful. Official
Justice Kagan: I mean, I'll tell you the statements that I think you should walk away from.
Caroline A. Flynn: Sure.
Justice Kagan: And you tell me if you agree. (Laughter.)
Justice Kagan: I mean, there are a whole world of -- I wish I had some good examples at hand, but we've seen these kinds of cases in -- these kinds of statements in many cases over the years and talked about them, where somebody says something and it's not just literally true, it is true in context. The reader is hearing the statement in exactly the way that --
Caroline A. Flynn: Right.
Justice Kagan: But there have -- but other statements are not made that would cast a different light on a situation. And so the person says: Oh, I was misled because I know one thing that was relevant to this situation, but you didn't tell me some other thing that was relevant to the situation and relevant to my decision-making. And there are all kinds of cases in which we say, in some statutes, that omission makes you liable, but in other statutes, it doesn't. So, in Official 1 this statute, it seems pretty clear to me that it doesn't.
Caroline A. Flynn: Yes, I would agree with that. My --
Justice Kagan: So, I -- I guess, like, when I read the Seventh Circuit, it -- it's at least possible that the Seventh Circuit has that wrong, that the Seventh Circuit is sort of treating "falsity" and "misleadingness" as all of a piece and not making this distinction between the -- when a -- a statement in context is false and when that statement is true but nonetheless misleading because there's other stuff that's been left out.
Caroline A. Flynn: And I would say that even if you thought the Seventh Circuit was confused on that particular point, we know how they would analyze this case under the correct legal rule because the court said that even if you never use the precise words, the implication of his statement in -- and looking at context --
Justice Kagan: I -- I would think we could do two things at one time, right?
Caroline A. Flynn: Right.
Justice Kagan: We can both decide the legal question that -- if we think that the Seventh Official 1 Circuit got it wrong, and we can also say something about this case, and it might actually be useful to other courts out there to say something about this case so they know what we're talking about and what we're not talking about.
Caroline A. Flynn: Exactly. And I would add the further -- the further point that because, right now, we're just debating, I -- I think, what context -- or at least between my friend and I, what context counts, I would think this Court should answer that question as well and say it's not just the preceding question, it's the things -- the purpose of the conversation, what was discussed before, the kinds of things that the listener would have taken into account too because I think, if you just say misleading statements don't count, it's falsity in context, full stop, and then have this set of facts and send it back down, that could create a good deal of confusion --
Justice Kavanaugh: Well, don't you think if we --
Caroline A. Flynn: -- and also --
Justice Kavanaugh: -- if we granted cert on that question, we get amicus briefs discussing that important question? Because that is going to Official 1 have an effect on lots of statutes. You're asking us to decide something much broader than the -- the straightforward question, as Justice Gorsuch said, that -- that was in the question presented and that was in the cert petition. And you don't -- I think you've said you don't really agree with what the Seventh Circuit said. Well -- and then you said: Well, it'll be easy -- it's easy to know what the Seventh Circuit would have done. Well, if that's true, on remand, that's what they're going to do.
Caroline A. Flynn: I mean, we argued at the cert stage as well --
Justice Kavanaugh: Yeah.
Caroline A. Flynn: -- that "false" means false in context.
Justice Kavanaugh: Yeah.
Caroline A. Flynn: And so I -- I believe that to be fully within the case this --
Justice Jackson: Isn't --
Caroline A. Flynn: -- entire time, and I --
Justice Gorsuch: No. Actually, Ms. --
Justice Alito: Well, the question presented -- Official
Justice Gorsuch: -- Ms. Flynn, the question presented is whether the statute prohibits making a statement that is misleading but not false. That's the QP, not -- not what qualifies as falsity, how much context, who shot John. None of that's in -- in the QP. And I think Justice Kavanaugh has a very good point that if we were really going to tackle what -- what is falsity, I mean, we might want to consult a few philosophers while we're at it, but we certainly would have had a different set of amici and -- and -- and a different set of briefing than we had in this case if we were going to tackle that question.
Caroline A. Flynn: I don't think -- I mean, respectfully, Your Honor, I don't think that's correct. I think the concept of falsity is one that we fully trust jurors, as lay people, to assess and make determinations about and engage in line drawing. I think it's very similar to material --
Justice Gorsuch: Of course. But you're asking us to say, as a matter of law, this is always in and that is always out for -- for determining falsity, and that's just not in the QP, Official 1 counsel. And it's a -- it -- it -- it -- it has ripple effects not just in 1014 but throughout all of Title 18 because there are literally a -- well, not literally. (Laughter.)
Justice Gorsuch: There are a lot of false statement statutes under which you can proceed.
Justice Jackson: Ms. --
Justice Gorsuch: And -- and many of them do distinguish between falsity and misleading statements. Each of the --
Justice Alito: The question presented, as -- are you finished? I -- I'm sorry.
Justice Gorsuch: Well, I -- I -- I hope Ms. Flynn would have a response.
Justice Alito: Oh, sure.
Caroline A. Flynn: Well, I -- I mean, I -- I'm not sure. One observation I would make about the question presented is that it asks whether making a false statement under -- whether you can satisfy the requirement of a false statement under 1014 by making a statement that is not false. And, I mean, of course, we don't agree with that. Official 1 And so, in that sense, the question presented answers itself. The issue in this case has always been what does "false" mean. And our argument is falsity in context. And I do think the legal question, answering it, is --
Justice Gorsuch: But where is that in --
Caroline A. Flynn: -- I mean, this Court all the time talks about --
Justice Gorsuch: -- where is that in the QP, Ms. Flynn? I'm sorry, but you just said in the QP is the question of what makes a statement false.
Caroline A. Flynn: Yes.
Justice Gorsuch: I don't see that. I see whether 1014 also prohibits a statement that is -- that is misleading but not false.
Justice Jackson: Right. But --
Justice Gorsuch: That -- that's the QP.
Justice Jackson: -- Ms. Flynn, isn't -- isn't the problem that in the government's view, the question presented, as Justice Gorsuch is reading it, is actually not implicated on these facts? Meaning you don't see that what happened here is misleading in the sense that it was literally true but led someone down a wrong path. Official 1 You see this as false. That's why you keep arguing it that way. And so, even though we take questions presented to answer legal questions, we do so ordinarily in cases in which the facts actually implicate that question. So I think the confusion is arising because the government seems here, and in your briefs, to be making arguments about the falsity of this particular set of circumstances, the context that you keep talking about, and that you're not really addressing a situation in which you believe there was a misleading but not false scenario.
Caroline A. Flynn: Yeah.
Justice Jackson: And that's why -- so -- so -- so, to answer the question when and under what circumstances does this statute cover misleading but not false situations on these set of facts is like a mismatch because you say that's not happening here, right?
Caroline A. Flynn: Yes, I would agree. And I would also just reiterate that here, it's not like there was a legal error, some kind of legal confusion that infected the jury's verdict, because, here, the jury was just told they had to find that Petitioner knowingly made a false Official 1 statement.
Justice Jackson: So this takes us back to Justice Alito's original point. This -- it seems like the Seventh Circuit and perhaps, you know, Petitioner in his arguing injected this notion of: You should be looking at this as a misleading but not false situation, and that kind of got carried away and taken over when, really, the jury was instructed on falsity. You say the facts establish falsity. I guess the one thing against you is your colleague on the other side said the government at some point conceded that this was a misleading but not false case. So can you explain why that happened and what we should take from that?
Caroline A. Flynn: Sure. So my friend points to a -- a -- a moment in one of the hearings about this issue where government counsel was sort of paraphrasing the kind of argument that Petitioner was making about literally -- literal falsity. But elsewhere in that same hearing, the counsel said that Petitioner's statements were "not true," I believe three times. They maintained that position afterwards. Of course, we maintained that before the Seventh Circuit as well. Official 1 So I do not believe it's fair to say that we have conceded that his statements were literally true.
Justice Sotomayor: Counsel, assume for the sake of argument that we don't accept your position that "misleading" and "false" are synonymous, that there are some things -- borrowing the phrase of your -- the other side, some things that are true but misleading, just as a hundred -- if you say a packet of toxic mushrooms is a hundred percent natural. Toxic mushrooms are a hundred percent toxic. But it may be -- be misleading if you're selling it because people may believe that it's safe, that you can actually eat it. So that's misleading but not false. So assume that there's a difference between the two. And we say this is a Bronston case. It has to be a false statement in the sense of Bronston. How is this -- what is the difference, or is there, in what you're saying about what falsity means in this statute and what we said it meant in Bronston?
Caroline A. Flynn: Yeah. Yes.
Justice Sotomayor: Your -- your -- the other side argues -- and, you know, there's many Official 1 who have described Bronston as saying you need literal falsity or literal truth. So how do you distinguish what you're arguing -- or how do you get what you're arguing from what we said in Bronston? If we answer the question presented that you can only prosecute false statements, all right, staying within Bronston, how do you argue this case?
Caroline A. Flynn: So we disagree that the -- the rule this Court announced for the perjury statute in Bronston applies to the language of 1014. And there's a couple --
Justice Sotomayor: Assume we disagree because, there, it was -- the perjury was for making a false statement. Here, if you make a false statement, you're guilty, with some other -- knowingly, et cetera, et cetera, other elements. So just go back to my -- to the essence of my question. If we apply Bronston, do you win?
Caroline A. Flynn: So I do just want --
Justice Sotomayor: Or how do you win, and how does your theory fit into Bronston?
Caroline A. Flynn: I do just want to be very clear that I do not think this Court should apply the perjury statute. But, okay, sure. Official
Justice Sotomayor: I understand that. I've said it three times. Assume.
Caroline A. Flynn: Okay. And then I would point this Court to the footnote in Bronston where the Court said: Of course, understating a numerical amount in response to a question would clarify -- or would qualify as literally false even under the rule that we're announcing today. And we don't think you need to have -- of course, Bronston was talking about questions and answers during testimony, but we think that here, for instance, the invoice essentially served the same contextual purpose as a direct question about how much Petitioner owed. But it's the -- the -- the principle is the same. The Court was saying, of course, if you under --
Justice Sotomayor: Now we go to Justice --
Caroline A. Flynn: -- if you only state part of the whole --
Justice Sotomayor: -- now we go to Justice -- Gorsuch's question. When we describe context, you're -- the other side says what's the question asked directly or implicitly, you're -- Official 1 but I think he's not going to say "implicitly." What's the question you asked? What is the answer you give? And, objectively, do the facts support that answer? How would you describe what we're supposed to do?
Caroline A. Flynn: I think Petitioner's limits to just the precise question asked is very artificial. I -- I would draw an analogy to how this Court looks at context with statutes, for instance. This Court does not draw hard-and-fast rules saying we only look at the proceedings subsection --
Justice Sotomayor: But that's what we did in Bronston. We looked at the question asked.
Caroline A. Flynn: In the context of cross-examination, where the questioner is in full control of the witness's presentation by asking the questions, and against a background principle of Anglo-American law --
Justice Sotomayor: We disagree with you.
Caroline A. Flynn: -- that we want perjury to be --
Justice Sotomayor: If we disagree with you, is that the lesson you take from Bronston, Official 1 that it's the question asked and whether the answer is objectively right or not?
Caroline A. Flynn: In the context of perjury, yes, I understand that to be the case, though, of course --
Justice Sotomayor: But you're arguing --
Caroline A. Flynn: -- I think you have to look at the question --
Justice Sotomayor: -- we should apply something different in other contexts?
Caroline A. Flynn: Than perjury, yes, I would.
Justice Sotomayor: All right. Thank you.
Chief Justice Roberts: Counsel, we've been talking about things that are technically true but misleading. Does it work the other way? Let's say you have things that are -- statements that are technically false but not misleading. If someone's trying to sell you a horse and -- and says this is the fastest horse I've ever seen, and, in fact, it's not, he's seen a faster horse, well, I don't think purchasers would necessarily view that as misleading. They would view that as sort of normal sales talk. So can things be technically true -- Official 1 technically false but not misleading?
Caroline A. Flynn: I don't think in your hypothetical, Your Honor, that that would be considered false because it's in a context where, I mean, it's a -- it's a qualitative opinion, for instance, and so the listener --
Chief Justice Roberts: No, no, it's either --
Caroline A. Flynn: -- takes that with a grain of salt.
Chief Justice Roberts: -- one horse, they -- they had a race and the horse lost.
Caroline A. Flynn: Oh, I'm sorry.
Chief Justice Roberts: Yeah.
Caroline A. Flynn: Yeah, so I think, in the context of what is essentially sort of puffery, the common law see -- like the reasonable listener sees that differently, and there are common law doctrines that kind of give effect to that. And so, no, I don't think that would be false in your hypothetical.
Chief Justice Roberts: Okay.
Justice Gorsuch: Ms. Flynn, just to back up about the QP --
Caroline A. Flynn: Yes. Official
Justice Gorsuch: -- at least in your brief in opposition, the government did argue that the statute before us criminalizes misleading representations and is not limited to false statements. So it did make the "misleading versus false" argument there. And -- and -- and I think that was the government's position in defending Freed in the Seventh Circuit at least initially. And now, if I understand it -- I just want to make sure I understand it -- you're pivoting and saying, okay, Freed's wrong, misleading doesn't count, but falsity is more capacious than literal falsity, more capacious than Bronston -- Bronston, and we want to use this Court as a vehicle -- this case as a vehicle for expanding what counts as false beyond our precedent, and even though no one's litigated that precise question below, it's always been about misleading versus falsity, and even though that in this case it probably won't make a whit of difference given you've got such a good standard available to you on remand and the likelihood of overturning the jury verdict is very low. Is that a fair summary of where -- how the ball has bounced in this case? Official
Caroline A. Flynn: I would respectfully push back on a few aspects of that. I -- we took the position in our opposition brief that the statements have to be false, that --
Justice Gorsuch: No, no. Page 6 says: Section 1014 "criminalizes misleading misrepresentations and is not limited to 'literally false' statements."
Caroline A. Flynn: I'm sorry, can you give me that page one more time, Your Honor? I apologize.
Justice Gorsuch: That was page 6.
Caroline A. Flynn: That was 6.
Justice Gorsuch: I don't mean to occupy --
Caroline A. Flynn: I mean -- I mean, I guess I'm -- Petitioner's claim that -- well, Petitioner's claim that Section 1014 does not prohibit merely misleading representations is beside the point. I -- I -- I guess, you know, we could -- we argued before the Seventh Circuit and in our opposition brief that the word "false" encompasses falsity by context. We rejected what we understood to be positions or Petitioner's argument that you have to assess falsity by virtue of looking at the precise words used in the four Official 1 corners of the statement alone. I now understand Petitioner to have walked away from that rule. And to resolve the only legal disagreement in this case, you have to decide what context counts. We know that the Seventh Circuit found that the unmistakable impression left by Petitioner's statements in context was that he borrowed only $110,000, and no more. And so --
Justice Barrett: Counsel, do you agree with the First Circuit's pattern jury instruction? It defines it -- it says a statement is false if untrue when made. What if we said, you know, we -- we disagree, the Seventh Circuit stated this too broadly; misleading statements don't count, just false statements; and we offered that definition of the standard? Would the government agree with that?
Caroline A. Flynn: Yes, we would agree with that statement. We agree that "false" means "untrue."
Justice Barrett: And then just not say anything else?
Caroline A. Flynn: Yes.
Justice Barrett: We don't need to say anything else about what counts as falsity, this falsity in context, that sort of thing? We don't Official 1 use the words "literal falsity" and then we just send it back to the Seventh Circuit?
Caroline A. Flynn: Yes, we agree with that. And that's consistent with the pattern jury instructions in every circuit that has a pattern instruction for 1014. The only ones we've seen is that kind of language that says "false" means untrue when made. There's no attempt there -- they don't give a specialized definition for the jury trying to parse the issues we've talked about today.
Justice Barrett: Thanks.
Justice Alito: There's been a lot of talk about the question presented. The question presented refers to statements that are misleading but not false. So I don't see how we can answer the question presented unless we understand what is meant by a statement that's misleading and a statement that is not false. There's a distinction, there's a clear distinction, if "false" means literal falsity. But Petitioner does not make that argument. And, therefore, in order to answer the question, if that's how we approach this, we would Official 1 have to understand what the Seventh Circuit means by a statement that is misleading. And it's entirely possible that what they meant was a statement that is false in context. It's possible that they might have a broader understanding of what "misleading" means. But, to be honest, I don't really understand the distinction between statements that are misleading and statements that are false. I will concede there may be some distinction. The connotation is -- is different. I asked Petitioner's counsel what his -- what he thinks is the difference, and he gave me the example of his website, which that's not exactly a rule. Maybe he'll take another shot at it in reply, but -- in -- in rebuttal, but can you tell me, what do you think is the difference, if any, between a statement that is misleading and a statement that is false in context?
Caroline A. Flynn: I think a statement that is misleading could encompass a broader category of things than just things that are false in context.
Justice Alito: And what would that broader category be? I know that's the connotation that -- Official
Caroline A. Flynn: Right.
Justice Alito: -- of the -- of the term, but if you want to nail it down, if we're dealing with a -- a legal concept, it may be prudent -- probably it is prudent -- just to disregard the whole idea of a misleading statement here. The statute says false, it has to be false. Petitioner concedes it can be false in context. It doesn't have to be literally false. We could leave it at that. But, if we were to go further in answering the question, what would we say about statements that are misleading but not false in context?
Caroline A. Flynn: So one of the ways that we have described what we think that falsity encompasses -- or that falsity does not encompass, I'm sorry, that misleading might is a failure to include additional pertinent information not on the same specific subject addressed by the statement. So one example might be if I said -- if I'm a tennis player and I say I won the championship, but I leave out that I -- it was a forfeited match because my opponent failed a drug test, my statement -- when you know that additional Official 1 information, that doesn't render what I said false. It is still accurate. It's just that I did not take care to obviate what was probably a foreseeable inference that you would have thought I won a contested match. And it's the -- the difference between the statement itself directly stating something inaccurate in context and leading the listener down a path.
Justice Alito: And do we know what the Seventh Circuit means by this phrase when they use it in -- this term when they use it in their opinions?
Caroline A. Flynn: I can't say we know for sure, but I will say that the court was, of course, thinking about the facts before it, which was this numerical understatement fact pattern. And we can look to the parts of the opinion where the court said that in -- that the unmistakable impression left by Petitioner's words was that he only borrowed this amount. I'm sorry, Your Honor.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything? Official 1 Justice Alito? Justice Sotomayor?
Justice Sotomayor: Would this be false under -- the example you gave, would it be false under Bronston?
Caroline A. Flynn: The tennis player example?
Justice Sotomayor: Yes.
Caroline A. Flynn: No.
Justice Sotomayor: Why not if I asked you have you won a championship?
Caroline A. Flynn: If you asked me how you won a championship, I --
Justice Sotomayor: Not -- not how.
Caroline A. Flynn: Sorry. Have, yes.
Justice Sotomayor: If I asked you, have you won a championship, and you answered the way you did, and that's why you got whatever job you were applying for, have you made a false statement or a misleading statement?
Caroline A. Flynn: I don't believe we made a false statement under Bronston or under the rule we're advocating for today.
Justice Sotomayor: Okay.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: A doctor's trying to Official 1 convince a patient to have a particular surgery, and he says: I've done a hundred of these surgeries. Turns out that 99 of the patients have died. (Laughter.)
Justice Kagan: A hundred of these surgeries. True statement, correct?
Caroline A. Flynn: Yeah, in the context I'm aware of, yes.
Justice Kagan: But he doesn't say 99 people have died. He's now misled the patient, correct?
Caroline A. Flynn: Correct.
Justice Kagan: But he hasn't said anything that's false.
Caroline A. Flynn: Correct.
Justice Kagan: So that's the kind of thing where there really is a gap between a false statement and a misleading statement, right?
Caroline A. Flynn: Yes.
Justice Kagan: And, you know, would it be helpful, in your view, to say something like that? There -- there really is a difference. In some -- there might be overlap, but there really is a difference, some things that are super misleading Official 1 but that are not false. Your example of the tennis player, my example of the surgeon. Why not just say that and instruct the Seventh Circuit and anybody else who may not have a -- a correct understanding of this that there -- there is this gap?
Caroline A. Flynn: Yeah, I would not resist this Court explaining that. I just am only resisting the possibility that you could say this statute does not criminalize misleading representations, full stop, without explaining that falsity by context counts, what that means and that also leaving open the possibility that the facts here, where the Petitioner, in response to a statement saying he owed a certain amount, said: I'm shocked by that, and I owed this different amount, that that could not -- a juror could not find as a matter of law that that is false.
Chief Justice Roberts: Justice Gorsuch? No? Justice Kavanaugh? Justice Barrett?
Justice Barrett: So sorry, Ms. Flynn, just to put a pin in it at the end. What do you want this Court to hold? Official 1 So you -- you told me that you would be happy with the First Circuit pattern jury instruction, which you understand to be the standard one. And Justice Kagan asked you would it be helpful to go on and, you know, say a little bit more to give guidance on what the distinction between "false" and "misleading" is. What are you -- what would the holding -- the -- the rule line in an opinion be that would be ideal from your perspective?
Caroline A. Flynn: It would be that "false" -- "false" means untrue or inaccurate but that an assessment of whether a -- a statement is untrue or inaccurate, is the message being sent in context. And you could -- jurors, as a matter of law, can take account of context, including the purpose of the conversation, other parts of it, and the meaning of the words used and to affirm on the record in this case where the Seventh Circuit looked at this and found that a reasonable jury can find -- could find in context that what Petitioner said was untrue and match the charged false statements that the jury was instructed on.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So, going to Justice Official 1 Kagan's point, I mean, there is a difference between "false" and "misleading," but I take it that the government's argument is that the facts here don't really implicate that difference. So, in other words, you know, it would be as if, in Justice Kagan's hypothetical, the question to the doctor was: How many times have you done this surgery? And for whatever reason, the doctor said 10, when, really, he had done a hundred. That wouldn't be misleading. That would be false in the government's view, correct?
Caroline A. Flynn: Correct.
Justice Jackson: All right. And so just one other point about what the government's position has always been on this. When you said in response -- in -- in the colloquy with Justice Gorsuch about what the government's position had been in the brief of opposition, could it be that you were referring to the first paragraph of the argument section, where you say on page 5 that: "Petitioner renews his claim that he did not make any false statement within the meaning of 114, but his statements were false by any measure, and his contrary argument Official 1 would not entitle him to relief in any circuit. No further review is warranted." And so your initial argument is that this is a false statement. And the part that Justice Gorsuch was reading was B on page 6, where you say: Even if Petitioner had only made a misleading statement, he still would have violated. But the government's point throughout this is that this should be characterized as a false statement. Is that right?
Caroline A. Flynn: Yes, that's correct. And if I could just I -- clarify my -- with my back-and-forth with Justice Gorsuch. We -- I understood our brief to take the position that falsity -- that we are understanding the word "false" -- and that includes contextual falsity. We have argued that Petitioner's statements were false. The jury was instructed that way. If we introduced confusion about whether or not a broader array of things that do not qualify as false but could be described as misleading counts, that is not the government's position, and I hope that I've clarified that today. Official
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Gair, rebuttal? REBUTTAL ARGUMENT OF CHRIS C. GAIR ON BEHALF OF THE PETITIONER
Chris C. Gair: When we're looking at a statute, the most important thing is for us to look at the text of the statute. The government is committing the fundamental error of atextualism that this Court condemned in Wells and many other cases, where it is trying to supply an additional term to the statute, a term that is used in many other statutes, when Congress means to get at the perception of the listener about a statement, and that is the term "misleading." Wells teaches us that you can't imply the -- a new term into the statute because the court thinks it might be a good idea or because close is good enough for government work. It's not. Justice Thomas's opinion for the Court in Rotkiske is another prime example of a statute where -- in that case, it was the Fair Debt Collection Practices Act. The question was whether Official 1 the statute of limitations implied a discovery rule. And the Court's opinion there made clear -- looked at statutes that had been passed after the Fair Debt Collection Practices Act that had a discovery rule, as well as statutes passed before, and found that the statutory context rebutted the -- the atextualist argument that you should imply a -- a discovery rule into the statute. I think everyone, except possibly my friends with the government, recognize that there's a difference between "false" and "misleading." And some of the Court's questions to the government asked: How do you draw that line? And my suggestion is the line is drawn by Congress because, when Congress means for the relevant context to include the perception of the listener, it says misleading. It doesn't say just false. And the Court has offered a number of hypotheticals that clearly draw the line between misleading and false. And this Court's recent decision in the Macquarie case dealing with 10 -- Section 10b-5 could not be a clearer example. The Court there, of course, was dealing with a pure omission, but it had a nice explication of Rule 10b-5 and said the first section, the false Official 1 statements part of 10b-5, deals with express falsehoods. The second section of 10b-5 deals with statements that say the truth but omit a material fact necessary to make the statement not misleading. Congress has done that in a hundred different places, but it didn't do it here. And -- and so we -- we should -- we should heed the text and recognize that because Congress did not use the word "misleading," it was not intending that the perception of the listener matters. As we all know, falsity is an objective question. And despite the fact that people of the younger generation may talk about "I want to speak my truth," there is no such thing as "my truth." It's -- it -- it's true as an objective matter. I -- I do want to touch on a couple of things -- other things that the -- the government suggested. The Seventh Circuit did -- and I'm very glad my friend mentioned it -- say that the implication of this was false. The impression created was false. But -- but that begs the question. Impression and implication go to the perception of the listener. The court never said Official 1 it was false as an objective matter. Instead, it said that it -- it was not deciding that question.
Chief Justice Roberts: Thank you, counsel.
Chris C. Gair: Thank you.
Chief Justice Roberts: The case is submitted. (Whereupon, at 11:22 a.m., the case was submitted.) 11 13 15 17 19 21 23 25 Official $ 7 52:24 54:14,18 67:13 59:3,4 62:6 behalf [8] 1:18,21 2:4, call [5] 14:17 20:14 27: 68:23 69:2 70:10 71: argument [32] 1:14 2: 7,10 3:8 38:9 77:6 15,20 28:3 $110,000 [28] 8:11,20 7 [1] 39:5 1 2,5,8 3:4,7 5:22,23 6: believe [12] 7:11 27:1 called [2] 11:10 17:20 9:1,2,3,4,24 10:14,16, 77 [1] 2:10 Alito's [1] 57:3 20,22 20:8 22:18 24: 43:5 44:16 46:16 47: calling [2] 14:9 37:10 19,20 12:12 13:6 14: 9 allows [1] 44:14 23 26:25 27:1 29:23 13 52:19 56:11 57:23 came [1] 1:13 12,21 15:21,24 20:11, alone [1] 66:1 36:3 37:9 38:8 48:6 58:1,13 71:20 Canadian [1] 13:22 27:16,17 28:1 32: 99 [2] 72:3,10 already[3] 31:5,8 48: 55:4 57:19 58:5 64:6 believed [1] 17:19 capable [1] 30:18 38:23 41:4,9 42:5 9a [1] 48:4 7 65:24 67:23 75:3,21, below [7] 4:2,6 17:15, capacious [2] 64:13, 66:8 A American [1] 13:24 25 76:3 77:5 78:7 17,18 27:12 64:18 13 $130,000 [1] 14:2 a.m [3] 1:15 3:2 80:8 amici [1] 53:12 arguments [2] 34:24 beside [3] 19:3,4 65: caps [1] 23:8 $169,000 [1] 11:7 able [1] 18:13 amicus [1] 51:24 56:8 19 captured [2] 17:22 26: $219,000 [1] 10:10 above-entitled [1] 1: among [1] 37:20 arising [1] 56:6 best [3] 23:17,19 36:3 9 $260,000 [2] 13:6 14: 13 amount [12] 7:14 8:16 array[1] 76:21 better [3] 11:25 21:22 care [1] 70:3 absolutely [5] 9:4 19: 12:3 18:9 37:25 38: artificial [1] 61:9 47:2 careful [1] 48:25 $269,000 [6] 8:24,25 4 20:20 22:14 34:6 25 41:9 42:9 60:6 70: asks [2] 43:7 54:21 between [22] 4:21 11: CAROLINE [3] 1:20 2: 10:11 15:12 38:20 42: absurd [1] 7:1 21 73:15,16 aspects [1] 65:2 3,4,17 22:24 25:14 6 38:8 accept [2] 7:9 58:5 analogous [1] 34:11 asserting [3] 12:5,5,9 40:11 41:13,21 46:2 carried [1] 57:8 $70,000 [1] 14:2 according [1] 8:16 analogy [3] 36:4,5 61: assertion [3] 12:2 33: 50:10 51:9 54:12 58: carry[1] 38:17 account [5] 39:13 43: 9 17 37:14 17 68:7,18 70:6 72: Case [50] 3:4 5:2 7:13 [6] 16:8,10 36:10,16 8,24 51:15 74:16 analysis [1] 40:22 assess [7] 7:22 9:16 18 74:7 75:2 78:11, 8:2 11:1,6 18:8 24:10 75:9 78:21 accounts [1] 34:9 analyze [1] 50:17 21:22 39:15 40:15 53: 19 25:1,10 29:15 34:5,6, 10:04 [2] 1:15 3:2 accurate [2] 40:1 70: Anglo-American [1] 19 65:24 beyond[1] 64:16 22 35:14 39:1,20 40: 100 [1] 3:22 2 61:20 assessing [1] 46:3 bigger [1] 11:22 10,12,21 42:17 44:5,8, 1014 [11] 3:11 4:3 38: acquittal [2] 15:5 35: announced [1] 59:10 assessment [1] 74: bit [1] 74:5 11,17,20 45:16,19,20, announcing [1] 60:8 13 bold [1] 23:8 25 48:23 50:17 51:2, 48:7 54:3,23 55: 59:12 65:6,17 67: Act [6] 6:1,2,3,3 77:25 another [4] 38:17 46: Assistant [1] 1:20 borrow [5] 8:10 9:21 4 52:20 53:13 55:2 78:4 21 68:15 77:23 assume [4] 58:4,16 10:3,6 16:2 57:14 58:18 59:8 62: 10a [2] 40:25 41:1 actually [11] 10:4 12: answer [18] 7:16 10:4 59:13 60:2 borrowed [30] 7:14 8: 4 64:15,20,25 66:4 10b-5 [5] 5:3 78:22,25 16 19:20 33:5 36:9, 23:23 32:25 34:15 35: ate [4] 36:9,10,16,16 11 9:1,3,11 10:10,16, 74:19 77:24 78:21 80: 51:2 52:23 55:21 14 36:13,23 37:2 51: atextualism [1] 77:10 19 12:17 13:13 14:21, 6,8 79:1,2 10b-5's [1] 5:4 56:4 58:14 11 56:3,15 59:5 61:2, atextualist [1] 78:7 24,25 15:12,13,17 16: cases [6] 42:15 49:9, 11:22 [1] 80:8 actus [1] 29:6 4 62:1 67:17,24 attempt [1] 67:8 13 20:20 26:1,3 27: 10,23 56:4 77:12 110 [2] 18:14 26:1 add [2] 45:8 51:6 answered [1] 71:16 available [1] 64:22 16,24 28:1,5 32:21 cast [1] 49:17 110,000 [1] 16:1 addition [2] 4:4 22:21 answerer [1] 34:9 aware [1] 72:9 33:5 38:22 42:5 66:8 category[2] 68:21,24 114 [1] 75:24 additional [4] 42:2 69: answering [3] 37:5 away [4] 48:20 49:2 70:21 center [1] 28:4 [1] 39:1 19,25 77:12 55:5 69:12 57:8 66:2 borrower [1] 11:19 cert [6] 22:11,11,19 51: 13a [2] 40:25 41:5 addressed [1] 69:20 answers [3] 7:3 55:2 awful [1] 12:11 borrowing [1] 58:7 23 52:5,13 [1] 1:11 addresses [1] 39:25 60:11 awfully [1] 24:23 both [8] 3:21,21 17:19 certain [2] 37:5 73:15 144 [1] 8:6 addressing [1] 56:11 anybody[3] 23:10,18 B 27:17 28:2 32:7 40:1 certainly [2] 22:2 53: 1 1 5 6 8 0 0 [1 ] [ [ 1 1 5 ] ] 4 1 1 : 5 5 4 : : 1 1 3 3 A a a 5 d d d v v m a o i n c n c a is e te t s r [ a 1 [1 ] t ] i 2 9 v 3 : e : 6 8 [ 1] 6: a a a 7 p p p 3 o p p :4 l a e o r a g e ls i n z t [ e 1 ly ] [ 2 1 [ 1 ] 1 6 ] : 8 2 5 : 2 : 1 1 9 0 b 5 1 a , 8 8 c 5 k 1 7 8 : [1 : 2 1 3 ] 5 1 7 9 ,1 : : 1 7 1 9 8 2 8 3 6 : : 3 2 6 : 0 2 5 3 1 1 7 : : b b b 5 o o r 0 i u u e :2 n n f 4 c d [ 9 e ] [ 1 1 d 1 ] 1 : [1 1 7 ] 8 : 6 1 4 3 9 : 2 2 : 5 4 39: c c 1 1 e h 1 7 t a , e 1 l r l 7 e a n [4 g ] e 3 d 5: 1 [1 , ] 1 2 5 0 9 :2 : advocating [1] 71:22 APPEARANCES[1] 65:2 67:2 5 43:19 64:2 65:3,21 championship [4] 69: 2025 [1] 1:11 affirm [2] 45:20 74:18 1:17 back-and-forth [1] 75:19 76:14 23 71:10,12,16 215 [1] 15:13 afterwards [1] 57:24 appears [2] 39:10 41: 76:13 briefing [2] 46:1 53: change [2] 9:9 23:6 219 [1] 15:13 agent [1] 20:15 20 backed [1] 31:22 12 characterized [2] 39: 23-1095 [1] 3:4 agents [1] 38:20 Appendix [2] 8:6 40: background [1] 61: briefs [3] 32:7 51:24 22 76:9 269 [3] 18:12 25:25 38: agree [24] 7:10 11:2 25 19 56:8 charge [1] 32:22 16:11 28:19 29:8,13 application [1] 25:9 balance [2] 8:23 9:10 brings [1] 9:12 charged [1] 74:22 33:13,22 41:22 42:10 applied [3] 8:2 39:3 ball [1] 64:25 broad [1] 25:9 Chicago [1] 1:18 48:9,12,14,17 49:5 40:20 bank [8] 8:14 9:15 14: broader [5] 52:3 68:5, CHIEF [35] 3:3,9 12: [2] 2:4 6:23 50:3 52:7 54:25 56: applies [1] 59:11 20 15:9 27:15 28:4 21,24 76:21 19,21 18:3,22,25 24:4 [1] 2:7 20 66:9,16,18,19 67:3 apply[5] 21:20 45:13 34:9,25 broadly[2] 25:13 66: 28:11,14,19,22 30:24 agreed [1] 39:4 59:19,24 62:9 BARRETT [22] 7:6,8 14 31:17 34:16 38:5,10 agreeing [1] 46:14 applying [1] 71:18 10:23,25 11:14,16 16: Bronston [24] 6:22 9: 41:11 42:11,13 43:11, [1] 23:7 agrees [1] 39:6 approach [1] 67:25 6 31:17,18 32:2,15,17 13,13 12:23 13:8 34: 15,20 62:14 63:7,11, ahead [4] 10:24 12:21 argue [4] 24:16 41:15 33:1,6,9 34:3 66:9,20, 5,6 58:17,19,22 59:1, 14,22 70:23 71:24 73: 67:12 73:22,23 [1] 75:22 45:5 48:2 59:7 64:2 5,7,11,19,22 60:4,10 19 74:24 77:2 80:3,6 [4] 12:24 13:1,4 16: aligns [1] 40:22 argued [5] 23:14 24: based [1] 7:11 61:15,25 64:14,14 71: child [2] 36:16,18 ALITO [24] 6:9,14,16, 14 52:13 65:20 76:17 basic [2] 3:15 33:18 5,21 choices [1] 26:7 20 22:23 23:16 24:3, argues [1] 58:25 basis [1] 28:6 Bronston's [1] 34:12 chose [1] 6:8 28:12,24,25 29:22 arguing [8] 6:10 29: bear [2] 29:12 39:18 C CHRIS [5] 1:18 2:3,9 [4] 65:5,11,12 76:5 30:8,13 31:19 33:14 24 39:12 56:1 57:5 begs [1] 79:23 3:7 77:5 Sheet 1 $110,000 - CHRIS Official Circuit [38] 11:4 17:20 38:1 57:13 58:2 4 critical [1] 27:22 determined [1] 37:8 drive [1] 44:2 21:3 24:11,24 31:12 concedes [1] 69:8 convicted [2] 19:17 cross-examination determining [2] 39:7 driving [1] 34:8 34:18 35:12,18 40:20 conceive [1] 37:13 21:6 [1] 61:17 53:25 drug [1] 69:24 44:22 45:17 47:9,14, concept [7] 29:19 30: conviction [1] 44:23 crux [1] 40:21 dichotomy [1] 47:19 drunk [1] 42:18 48:22 50:6,7,8,15 5,14 39:4 47:3 53:17 convictions [1] 45:18 cues [1] 32:9 died [2] 72:4,11 during [2] 46:1 60:11 51:1 52:7,11 57:4,25 69:4 convince [1] 72:1 D difference [16] 11:17 E 64:8 65:20 66:5,13 concepts [2] 3:20 41: cookie [1] 36:6 22:24 40:10 41:12,17 67:2,5 68:1 70:11 73: 21 cookies [7] 36:7,8,10, D.C [2] 1:10,21 58:16,20 64:21 68:13, Each [1] 54:13 74:2,19 76:1 79:20 concern [4] 30:1,1,8, 15,15,16,18 data [1] 27:9 17 70:6 72:23,25 75: easy[2] 52:10,10 Circuit's [4] 35:8 40: 11 corners [1] 66:1 deal [3] 10:8 11:25 51: 1,4 78:11 eat [6] 36:7,8,14,15,18 44:25 66:10 concerned [1] 24:8 correct [26] 4:5 6:14, 19 different [15] 3:20 5: 58:14 circumstance [1] 44: concerning [1] 9:5 16,19 7:15 16:19,22, dealing [3] 69:3 78:21, 16,17 10:3,6 12:8 18: effect [3] 10:10 52:1 concession [1] 15:5 23 19:18 27:1 28:18 23 8 29:2 49:18 53:11, 63:19 circumstances [8] 6: concluded [3] 16:21 31:5 34:2 35:6 45:3, dealings [3] 25:5,14 12 62:10 68:11 73:16 effectively[1] 9:9 15:23 26:4 33:2 25:21 45:6 17 50:17 53:17 72:7, 26:16 79:7 effects [1] 54:3 35:10 39:18 56:9,16 conclusion [1] 42:2 12,13,16 73:5 75:12, deals [3] 25:4 79:1,2 differently[3] 42:23 either [4] 6:6 10:13 47: cite [1] 29:15 condemned [1] 77:11 13 76:11 dealt [1] 5:3 43:4 63:18 18 63:8 claim [3] 65:16,17 75: confused [6] 15:8 16: correction [1] 45:14 debating [2] 39:10 51: difficult [2] 37:13,16 element [2] 20:3 25: 6 18:19 26:2 29:23 correctly[1] 25:11 8 direct [1] 60:13 12 clarified [1] 76:24 50:15 couldn't [1] 37:9 debt [4] 16:14 40:6 77: directed [2] 17:9 30: elements [1] 59:17 clarify[2] 60:6 76:12 confusion [4] 51:19 Counsel [13] 25:16 28: 24 78:4 10 elsewhere [1] 57:21 clear [9] 12:15 19:1 56:6,23 76:20 15 38:6 54:1 57:18, decide [11] 17:15,18 directly[4] 42:1,7 60: encompass [2] 68:21 21:4 34:7 36:1 50:1 Congress [11] 3:20 5: 21 58:4 62:14 66:9 28:9 33:20 44:8 45:5, 25 70:7 69:17 59:24 67:21 78:2 23 6:8 19:5 29:20 30: 68:12 70:24 77:3 80: 16 48:4 50:24 52:2 disagree [6] 34:4 59: encompasses [3] 39: clearer [1] 78:22 19 77:14 78:14,15 79: 4 66:4 9,13 61:21,24 66:13 21 65:22 69:17 clearest [1] 15:3 6,9 count [4] 30:21 51:16 decided [1] 48:7 disagreement [1] 66: end [3] 21:7 48:4 73: clearly[4] 32:8 38:24 connotation [2] 68: 64:12 66:14 deciding [1] 80:2 4 24 44:1 78:19 11,24 counts [6] 51:10 64: decision [2] 28:7 78: disclose [1] 39:23 engage [1] 53:19 client [5] 7:13 11:17 consider [2] 9:8 39: 16 66:5,24 73:12 76: 21 discovery[3] 78:1,5,8 English [1] 33:19 18:4,8 34:25 11 23 decision-making [1] discussed [1] 51:13 enough [3] 46:14,22 client's [2] 12:8 31:5 considered [2] 38:16 couple [3] 26:12 59: 49:22 discussing [1] 51:24 77:20 close [1] 77:20 63:4 12 79:17 defend [1] 45:2 discussion [2] 19:1 enter [1] 16:7 closed [1] 8:14 consistent [1] 67:4 course [12] 13:1,24 defendant [3] 18:21 20:19 entered [6] 12:24,24 cocktail [5] 42:20,21 consult [1] 53:10 48:22 53:22 54:25 57: 32:10 44:10 disjunctive [1] 5:15 13:2,3 16:8,9 43:10,17,21 contested [1] 70:5 24 60:5,10,16 62:5 defending [1] 64:7 dispute [2] 25:18 46:2 entering [1] 13:1 code [2] 3:14,23 context [71] 3:13 5:22, 70:15 78:23 defense [1] 24:17 disregard [1] 69:5 entire [1] 52:22 colleague [1] 57:12 22 6:24 8:21 15:21 COURT [68] 1:1,14 3: deferential [1] 21:9 distinction [7] 11:3 entirely[1] 68:3 collect [1] 40:6 20:14 22:1,25 23:2 10 4:4 5:1,3 6:6,22, define [2] 4:10,11 50:10 67:21,21 68:7, entities [2] 25:5 26:12 collection [3] 38:13 24:22 26:11 29:3,25 23 7:19 8:3,5 11:10 defined [1] 7:18 11 74:6 entitle [1] 76:1 77:25 78:4 30:15 31:25 32:6,9, 17:15,17 18:2 21:2, defines [1] 66:11 distinguish [4] 4:11, erroneously [1] 4:2 colloquy [1] 75:18 17 34:2,14 37:7 38: 18,20,21,22 22:2,8,19 definitely [4] 4:22 18: 12 54:12 59:3 error [4] 4:5 45:13 56: comes [4] 13:16 15:4 15 39:6,11,25 40:17 23:8,15,24 25:3,6,10, 18 25:2 26:21 distinguished [1] 11: 22 77:10 38:22 44:5 41:17,23 43:6,23 44: 11 26:23 28:7,8 29: definition [3] 39:2 66: 4 ESQ [3] 2:3,6,9 comment [1] 28:25 10 46:3,6,17 47:3,7, 15 31:14 34:5 35:19 15 67:9 district [7] 18:2 21:1, ESQUIRE [1] 1:18 comments [1] 27:22 16 49:13 50:11,20 51: 38:11 39:14 41:1,5 delve [1] 22:16 21 22:2 26:23 28:7 essence [1] 59:18 committing [1] 77:10 9,10,17 52:17 53:5 45:22,23 47:10,14,21 denied [1] 46:12 35:19 essentially [4] 32:22 Commodities [1] 6:1 55:4 56:9 60:24 61: 50:18 51:10 55:7 59: denying[2] 46:7,9 doctor [2] 75:7,9 42:6 60:12 63:16 common [2] 63:17,18 10,16 62:3 63:4,16 10,24 60:4,5,16 61:10, Department [1] 1:21 doctor's [1] 71:25 establish [1] 57:10 communicated [2] 65:22 66:5,7,25 68:4, 11 64:14 70:15,18 73: depend [1] 29:25 doctrines [1] 63:19 et [4] 35:1,1 59:17,17 33:15,18 19,22 69:8,14 70:8 8,25 77:11,19,22 78: depending [1] 18:20 doing [1] 8:3 even [15] 7:7,9 24:10 communicates [1] 72:8 73:12 74:14,16, 18,23 79:25 depends [4] 4:16 10: dollars [4] 13:21,22, 27:18 32:8 38:15 41: 33:12 21 78:6,16 Court's [6] 3:14 4:9 8 29:16 46:15 25 14:1 1 45:3 50:14,18 56:2 communication [1] contexts [1] 62:10 40:8 78:2,12,20 describe [3] 47:1 60: done [5] 52:11 72:2 60:7 64:17,19 76:6 33:14 contextual [3] 13:17 courts [5] 4:2,6 8:1 23 61:5 75:8,9 79:6 everybody[1] 13:22 company [1] 34:10 60:13 76:16 17:18 51:3 described [3] 59:1 69: down [10] 3:24 6:3 11: everyone[2] 9:13 78: compared [1] 4:14 contrary[1] 75:25 cover [1] 56:16 16 76:22 22 12:4 42:1 44:5 51: 9 complete [3] 40:2 43: control [1] 61:18 covers [1] 7:10 despite [1] 79:13 18 55:25 69:3 70:8 evidence [10] 15:3 18: 8,24 conversation [3] 39: crack [1] 31:19 details [1] 8:23 draw [4] 61:9,11 78:13, 10 19:19,25 26:25 29: completely [3] 11:13 17 51:13 74:17 create [1] 51:19 determination [5] 4:6 19 12 35:2,10,20 37:23 28:20 40:22 convey[1] 41:25 created [2] 47:19 79: 22:3 35:4,14 36:2 drawing [1] 53:20 exacting [1] 35:21 concealment [1] 11:5 conveyed[2] 38:24 23 determinations [2] drawn [1] 78:14 exactly [4] 13:15 49: concede [2] 10:21 68: 41:8 criminalize [1] 73:10 34:19 53:19 drink [1] 43:25 14 51:6 68:14 conveying[1] 42:8 criminalizes [3] 48:8 determine [3] 22:20 drinking [3] 42:19 43: examiner [1] 35:1 conceded [4] 27:12 conveys[2] 38:14 40: 64:3 65:6 35:9 44:1 8,9 examiners [2] 27:21 Sheet 2 Circuit - examiners Official 28:3 60:7 62:18 63:1,4,20 15 70:14 71:6,8,11,14, given [8] 11:11 12:23 hearing [2] 49:13 57: implied [1] 78:1 example [12] 11:19 64:4,6,16 65:4,21 66: 20 72:8,13,16,20 73:7, 22:17,17 35:9 39:2 21 implies [1] 43:13 12:23 23:4 36:4 68: 11,15,19 67:7,16,20, 23 74:11 75:13 76:11 43:25 64:21 hearings [1] 57:17 imply[2] 77:17 78:8 69:21 71:4,6 73:1, 22 68:4,9,19,22 69:7, focuses [1] 4:17 glad [1] 79:21 hears [1] 4:18 import [1] 47:23 77:23 78:22 7,8,9,13 70:1 71:4,5, fool [1] 18:13 glasses [1] 42:21 heed [2] 4:1 79:8 important [8] 20:25 examples [1] 49:8 18,21 72:15,18 73:1, Footnote [3] 6:23 13: gloss [1] 44:25 held [4] 4:2 5:3 44:22 25:4,6,9 28:9 44:11 except [1] 78:9 18 74:7,11,12,22 75:2, 9 60:4 GORSUCH [47] 25:16 47:9 51:25 77:8 Exchange [3] 6:1,2 12,23,25 76:4,9,16,18, foreseeable [2] 42:2 26:9,11,15,18 27:4,7 help [1] 35:24 impossible [1] 37:17 14:2 22 78:11,17,20,25 79: 70:4 31:2 34:21 44:7,19 helpful [2] 72:22 74:5 impression [5] 41:6 expanding [1] 64:16 22,23 80:1 forfeited [1] 69:24 45:9,12 46:4,7,10,13, helps [1] 7:13 66:6 70:19 79:22,24 experience [1] 23:7 false' [1] 65:8 forth [1] 13:8 17,20 47:6,12,15,17, higher [2] 38:25 41:9 improvement [1] 28: explain [1] 57:14 falsehoods [1] 79:2 found [13] 20:1,6,11 25 48:2,15 52:4,23 himself [1] 39:6 17 explaining [2] 73:8, falsely [1] 41:8 21:10 22:2 24:19 25: 53:1,22 54:7,11,16 hire [1] 23:11 inaccuracy [1] 40:16 falsity[51] 11:5 19:5 11 26:24 33:21 41:7 55:6,9,13,17,20 63:23 history[1] 17:6 inaccurate [3] 70:8 explication [1] 78:24 20:4 24:18 29:16,24, 66:6 74:20 78:6 64:1 65:5,11,13 73: hoe [3] 25:19 26:20,22 74:12,14 explicit [1] 30:22 24 30:4,15 31:23,25 four [2] 42:21 65:25 19 75:18 76:5,13 hold [5] 17:20 45:19, include [2] 69:19 78: explicitly [3] 3:21 8:5 32:3,5,6 40:16 44:15 Francisco [2] 23:11 Gorsuch's [1] 60:23 20 47:6 73:25 16 30:22 46:6,8,17 47:3,6,18 24:5 got [10] 10:10 14:6,9, holding [1] 74:8 includes [3] 3:18 41: express [2] 5:4 79:1 50:9 51:17 53:5,9,17, Freed [8] 17:20 45:17 11 24:10 25:19 51:1 home [1] 28:16 16 76:16 extent [1] 39:12 25 54:12 55:4 56:8 47:17,17,18,22 48:7 57:8 64:21 71:17 honest [1] 68:6 including [2] 5:2 74: extremely [1] 25:13 57:9,10,20 58:21 59: 64:8 government [19] 3:23 Honor [21] 4:23 6:15 16 F 2 64:12,13,19 65:22, Freed's [1] 64:11 22:16 25:23 26:1 27: 7:20 8:1 11:9 14:15 incorrect [1] 41:10 66:24,25 67:1,22 friend [6] 39:8 41:22 11 29:14 36:5 38:1 15:16 16:3,23 20:9, incredibly [1] 25:22 fact [17] 4:19 7:15 10: 69:16,17 73:11 76:15, 46:2 51:9 57:16 79: 44:14 56:7 57:12,18 13 21:12 30:4 31:6 indeed [2] 27:18 39:5 12:14 14:1,13 21: 17 79:12 21 64:2 66:16 77:9,20 32:14 35:6 45:7 53: individuals [2] 25:14 22:17 24:16 29:14, far [1] 24:7 friends [3] 22:15 29: 78:10,12 79:18 16 63:3 65:10 70:22 26:13 33:4 42:20 62:21 faster [1] 62:22 10 78:10 government's [9] 15: hope [2] 54:16 76:24 inebriated [1] 44:2 70:17 79:4,13 fastest [1] 62:20 full [4] 15:21 51:17 61: 4 55:19 64:7 75:3,12, horse [5] 62:20,20,22 infected [1] 56:23 fact-bound [2] 45:13, FDIC [8] 14:17 20:15, 17 73:11 15,19 76:8,23 63:11,12 inference [1] 70:4 15 27:20,21 38:19 40: fully[3] 40:6 52:20 53: grain [1] 63:9 however [2] 7:17 18:1 influence [1] 40:5 facts [19] 4:15 8:2 21: 5 42:6 18 granted [2] 22:19 51: humblest [1] 23:23 influencing [1] 19:22 22:16 32:19,25 34: FDIC's [1] 38:20 fundamental [1] 77: 23 hundred [14] 5:25 13: information [6] 11:11, 44:17,20 48:23 51: federal [2] 25:22 41:3 10 granting [2] 22:10,11 21 14:1 15:12,14 16: 11 39:23 42:3 69:19 55:22 56:4,18 57: few [3] 15:22 53:10 65: further [4] 51:7,7 69: great [1] 10:8 2 18:10 58:9,10,11 70:1 61:3 70:16 73:13 2 11 76:2 guess [14] 7:12 11:16 72:2,6 75:10 79:6 initial [1] 76:3 75:3 figure [2] 11:1 33:12 G 12:7 13:14 14:5 26: hundred-plus [1] 5: initially [1] 64:8 failed [1] 69:24 financial [3] 25:5,15 14 33:13,13 34:17 36: 14 injected [1] 57:5 failure [2] 39:22 69:18 26:16 GAIR [79] 1:18 2:3,9 3: 22 50:5 57:11 65:15, hypothetical [6] 16: inquiry[7] 13:10,12, fair [5] 29:1 58:1 64:24 find [9] 24:12 26:23 6,7,9 4:13,22 5:13 6: 19 12 36:12 43:16 63:3, 16 14:7,8 20:25 36: 77:24 78:4 43:6,23 44:9 56:25 13,15,18,21 7:20,23, guidance [2] 25:7 74: 21 75:6 20 falls [1] 11:6 73:17 74:21,21 25 8:22 10:1,7,15 11: 6 hypotheticals [3] 11: insofar [1] 11:24 false [179] 3:11,16,18, finished [1] 54:15 8,15 12:13 13:7 14: guilty[1] 59:16 18 36:13 78:19 instance [6] 26:7 28:8 4:4,7,11,13,18,23, first [18] 3:4,25 5:4 8:3 14 15:16,19 16:3,11, guy[1] 14:9 I 45:23 60:12 61:11 63: 5:5,7,10,10,12,15, 18:9,24 21:19 26:6 19,23 17:5,11,13,16 guys[1] 45:5 6 17,19,24,24 6:4,6,11 27:5,11,22 28:8 45: 18:22 19:4,12,16,19, H idea [7] 15:10 24:10 instances [1] 47:11 7:10,12 8:21 9:25 10: 22,24 66:10 74:2 75: 25 20:8,13 21:11,18 25:1 31:22 38:21 69: instead [3] 14:22 27: 18,22 13:2,10,18,25 21 78:25 22:13 23:3,21 25:2 half-truth [1] 11:10 6 77:19 24 80:1 14:19,22 15:4,15 16: fit [1] 59:22 26:8,17,21 27:2,6,9 half-truths [1] 5:5 ideal [1] 74:10 institution [2] 11:20 9,12,18,22 17:2,4,21 five [3] 12:25 13:2,4 28:18,21 29:8 30:3, hand [1] 49:9 idiosyncratic [1] 33: 19:23 18:18,19 19:6,8,14,15 FLYNN [94] 1:20 2:6 12,16 31:6,11,24 32: happened [4] 14:23 23 institutions [1] 25:15 20:7,12 21:5,10 22: 38:7,8,10 40:12 41: 13,16 33:4,8 34:3 35: 37:10 55:23 57:15 Illinois [1] 1:18 instruct [1] 73:3 21,25 23:1,1,13 24:13, 18 43:3,13,18,22 44:7, 6,17 36:12 37:12,19 happening [1] 56:19 immediately [1] 39: instructed [5] 35:3 40: 15,20,22 25:8 28:20, 45:7,10,25 46:6,9, 38:4 77:4,5,7 80:5 happy[1] 74:2 13 57:9 74:23 76:18 29:3,4,7 30:6,18 12,15,19,23 47:5,10, gap [2] 72:18 73:6 hard [3] 21:17 24:23 imparted [1] 40:18 instruction [7] 16:16, 32:23 33:21 35:5,15 13,16,21 48:10,21 49: gave [4] 10:4 11:19 68: 48:21 implausible [1] 3:17 17 24:12,18 66:10 67: 36:11,17 37:6 38:12, 3,15 50:3,14,23 51:6, 13 71:4 hard-and-fast [1] 61: implicate [2] 56:5 75: 6 74:3 14,23 39:3,8,21 40:11, 22 52:13,16,19,22 53: General [2] 1:20 41: 11 4 instructions [3] 21:4, 14,18 41:13,14,16,23, 1,15 54:17,19 55:7,10, 12 hate [1] 16:24 implicated [1] 55:21 6 67:5 25,25 42:23,24,24 43: 12,18 56:13,20 57:16 generation [1] 79:14 he'll [1] 68:15 implication [4] 41:2 intending [1] 79:10 1,5 44:10,23 50:11 58:23 59:9,20,23 60: getting [2] 12:10 15: head-first [1] 48:6 50:19 79:22,24 intent [1] 40:5 52:16,16 53:4 54:8, 3,20 61:7,16,22 62:3, 21 hear [1] 3:3 implicit [4] 8:24 9:8 interest [5] 8:16 10:9 22,23,24 55:3,11,15 7,11 63:2,9,13,15,23, give [8] 21:9 25:6 36:4 heard [2] 23:23 35:19 14:8 16:14 11:20 12:3,6 56:1,12,17,25 57:7,14 25 65:1,9,12,15 66:18, 61:3 63:19 65:9 67:9 hearer [2] 4:18 7:17 implicitly [2] 60:25 61: interpret [2] 9:20 36: 58:6,15,18 59:6,15,16 22 67:3 68:20 69:1, 74:6 hearer's [1] 4:16 1 24 Sheet 3 examiners - interpret Official interpretation [3] 4:1 8,12,14,24 18:1,3,23, knowable [1] 7:15 43:2 57:20 59:2,2 64: mean [39] 4:25 11:2, misleads [1] 30:7 9:17 37:4 25 19:10,14,17,24 20: knowing [2] 19:13,21 13 67:1,22 16 12:2,25 13:16,25 misled [2] 49:19 72: interpreted [2] 37:9, 5,10,21,22,24 21:13 knowingly [3] 40:4 literally[21] 6:11 8:7 14:8 18:7 20:24 21:8 11 22:5,13,23 23:16,22 56:25 59:17 15:15,15 16:8,9,25 22:14 24:9 33:13,22, mismatch [1] 56:18 introduced [2] 24:25 24:1,3,4,7 25:16 26:9, knows [2] 25:10 29: 22:25 24:15 27:12 38: 24 37:3 41:23 42:15, misrepresentations 76:20 11,14,15,18 27:2,4,7 21 2 48:5 49:12 54:4,5 22 44:5 45:23 46:16 [1] 65:7 invitation [1] 22:15 28:11,12,14,19,22,23, L 55:25 57:20 58:2 60: 48:11,15 49:1,7 52: mistake [2] 21:24 41: invoice [11] 8:14,14, 24,25 29:22 30:8,13, 7 65:7 69:9 13 53:9,15 54:19,24 6 9:8,20 10:11 14: 24,24 31:1,2,3,4,7,15, labeling [1] 6:2 litigated [1] 64:17 55:3,7 63:5 65:13,15, mom [3] 36:6,14,17 36:25 37:14 38:19 17,17,18,19 32:2,15, language [2] 59:11 litigation [1] 23:7 15 75:1 moment [1] 57:17 60:12 17 33:1,6,9,13 34:3, 67:7 little [4] 12:7 15:7 45: meaning [8] 38:17 39: money[1] 7:14 Isn't [7] 12:18 21:1 35: 16,16,17,20,21 35:7, last [1] 28:25 14 74:5 16,19 42:1 43:2 55: morning [1] 3:4 42:12 52:21 55:18, 22,24 36:21 37:16,19 later [1] 9:5 loan [4] 15:11 18:9 22: 23 74:18 75:24 most [2] 3:15 77:8 38:3,5,10 40:9 41:11 latter [1] 45:7 9 28:17 meanings [1] 5:17 motion [2] 15:5 35:22 isolation [2] 6:12 7:2 42:10,11,12,13 43:11, Laughter [8] 14:4 23: loaned [1] 28:1 means [19] 3:16,20 5: Ms [94] 38:7,10 40:12 issue [10] 10:3 16:20 15,20 44:7,19 45:9,12 20,25 24:2,6 49:6 54: loans [2] 8:15 10:9 24 17:1 19:1,9 39:3 41:18 43:3,13,18,22 17:10,19 21:23 22:8 46:4,5,7,10,13,17,20 6 72:5 look [11] 11:9 12:4 32: 52:16 58:21 66:19 67: 44:7,16 45:7,10,25 28:9 31:14 55:2 57: 47:4,6,12,15,17,25 48: law [9] 21:20,24 39:12 24 33:22 34:13,14 47: 7,22 68:1,6 70:11 73: 46:6,9,12,15,19,23 47: 53:23 61:20 63:17,18 1,2,3,13,15,17 49:1,4, 23 61:12 62:7 70:18 12 74:12 77:14 78:15 4,5,10,13,16,21 48:10, issues [1] 67:10 7,16 50:5,21,24 51:20, 73:18 74:15 77:8 meant [5] 18:9 34:25 21 49:3,15 50:3,14,23 it'll [1] 52:9 23 52:4,15,18,21,23, lawyer [1] 32:16 looked [3] 61:15 74: 58:22 67:19 68:3 51:6,22 52:13,16,19, itself [6] 23:1 24:15 24 53:1,7,22 54:7,10, lay[1] 53:18 20 78:3 measure [1] 75:25 22,23 53:1,15 54:10, 26:1 41:24 55:2 70:7 11,14,16,18 55:6,9,13, lead [1] 42:1 looking [6] 32:9 40:17 members [1] 39:1 17,19 55:7,10,12,18 J 16,17,18,20 56:14 57: leading [1] 70:8 50:20 57:6 65:25 77: mens [7] 19:11,20,20 56:13,20 57:16 58:23 2,3 58:4,24 59:13,21 least [4] 50:7 51:9 64: 7 20:2,3 29:5,9 59:9,20,23 60:3,20 JACKSON [29] 7:4,7, 60:1,18,19,22,23 61: 1,8 looks [1] 61:10 mention [1] 11:21 61:7,16,22 62:3,7,11 9,22,24 8:12 9:16 12: 14,21,24 62:6,9,12,14 leave [4] 17:10 26:6 lost [1] 63:12 mentioned [1] 79:21 63:2,9,13,15,23,25 65: 26:14 27:2 34:16, 63:7,11,14,22,23 64:1 69:9,23 lot [8] 12:12,18 26:24 merely[1] 65:18 1,9,12,15 66:18,22 67: 35:7,22,24 36:21 65:5,11,13 66:9,20,23 leaving [1] 73:13 32:4 40:19 42:15 54: message [7] 38:15,24 3 68:20 69:1,15 70: 37:16,20 38:3 52:21 67:12,13 68:23 69:2 led [1] 55:25 7 67:13 40:4,18 41:8,25 74: 14 71:6,8,11,14,20 72: 54:10 55:16,18 56:14 70:10,23,25 71:1,2,3, left [5] 11:15 41:6 50: lots [1] 52:1 14 8,13,16,20 73:7,23 74: 57:2 74:24,25 75:14 7,9,13,15,23,24,24,25 13 66:6 70:20 low [1] 64:23 might [12] 16:1 18:13 11 75:13 76:11 77:1 72:6,10,14,17,21 73: legal [18] 4:5 22:7,12, lower [5] 7:19 8:1,5 23:4 39:21 42:3 51:2 much [20] 8:9 9:10,10, January[1] 1:11 19,19,21,22,23 74:4, 12,18 28:9 44:21,21 11:20 45:22 53:9 68:5 69:18,21 21,22 10:2 11:22 12: jar [1] 36:6 24,24,25,25 75:6,14, 45:11 46:1 50:17,25 M 72:24 77:19 17 13:13 16:13 26:2, job [1] 71:17 18 76:4,13 77:1,2,22 55:5 56:3,22,22 66:3 mildly[2] 23:16,19 3 27:23,24 37:11 43: John [1] 53:5 80:3,6 69:4 Macquarie [3] 5:2 11: mind [1] 48:19 9,25 52:2 53:5 60:14 Joint [1] 8:6 Justices [1] 12:11 lending [1] 11:20 10 78:21 misimpression [1] mushrooms [2] 58: judge [4] 7:2 14:14 21: K less [1] 25:23 made [26] 8:4,15 12: 21:2 10,11 32:13 lesson [1] 61:25 15 13:21,25 14:1,16, mislead [1] 23:18 must [1] 39:3 judgment [3] 15:5 26: KAGAN[35] 10:5,13 letter [1] 38:21 24 17:3 21:4,23 22:3 misleading [104] 3:12, N 35:23 12:11,18,20,22 13:14 liable [1] 49:25 27:16,21 32:18 36:2 19 4:3,8,12,15,17,24, juror [7] 16:21 24:22 14:5 18:1 20:5,10,21, light [3] 27:18 39:17 38:23 44:10 49:17 56: 24 5:6,8,10,10,15,24 nail [1] 69:3 43:6,23 44:9 45:6 73: 24 21:13 23:22 24:1 49:18 25 66:12 67:8 71:18, 6:4,6 7:18 10:21 16: narrowed [1] 46:1 31:1 42:12 47:4 48: likelihood [1] 64:22 20 76:6 78:2 17 17:22,22 19:7 21: natural [2] 47:23 58: jurors [2] 53:18 74:15 17 49:1,4,7,16 50:5, likely[1] 35:18 maintained [2] 57:23, 3 22:20 23:2,5,10,17, 11 jury[39] 16:16,16 17:3, 21,24 71:24,25 72:6, limitations [1] 78:1 24 19 24:10 25:1,8 29: naturally[1] 39:18 20:1,6,10 21:5,8,9, 10,14,17,21 74:4 limited [2] 64:4 65:7 Many[11] 4:23,23,24 19 39:22 40:11 41:14, nature [1] 4:17 22:1 24:19 25:20 Kagan's [2] 75:1,6 limits [1] 61:7 36:7,15 49:10 54:11 16,19 42:25,25 44:15, necessarily [1] 62:23 26:23 33:20 35:2,9, KAVANAUGH[22] 19: line [5] 53:20 74:9 78: 58:25 75:7 77:11,13 24 45:19 46:14,21,23 necessary [3] 11:12 36:2,24 37:7,9,18 10,14,17,24 20:22 22: 13,14,19 match [4] 12:1 69:24 47:1,19,20 48:8,11,18, 36:1 79:4 39:1,11,15 40:14 41: 5,13 31:3,4,7,15 42: lines [2] 25:17 31:19 70:5 74:22 24 50:12 51:16 53:3 need [4] 48:4 59:1 60: 56:24 57:9 64:23 10 46:5 48:1,3,13 51: listed [1] 8:15 material [6] 11:1,4,7, 54:12 55:15,24 56:12, 9 66:23 66:10 67:4,9 74:2,20, 20,23 52:15,18 53:7 listener [25] 5:20 12: 24 53:21 79:3 17 57:7,13 58:6,9,12, needed [1] 21:5 76:18 73:21 14,16 18:15 19:8 29: materiality [1] 25:12 15 62:16,19,23 63:1 neither [2] 8:1 17:18 jury's[1] 56:23 keep [2] 56:1,10 11,17,20,20 30:11,17, matter [13] 1:13 5:20 64:3,5,12,19 65:6,18 never [6] 8:9 26:13,15 Justice [261] 1:21 3:3, kid [2] 36:5,9 21,23 34:13 38:15 39: 17:21 18:6 29:18 30: 66:14 67:15,19 68:2, 41:1 50:18 79:25 4:10,20 5:7 6:9,14, kind [14] 24:25 30:11 16 42:1 51:14 63:6, 7 39:11 40:10 53:23 6,8,18,21 69:6,13,18 new [1] 77:18 16,20 7:4,6,7,8,9,22, 31:21 33:23,25 36:25 17 70:8 77:15 78:16 73:18 74:15 79:16 80: 71:19 72:19,25 73:10 nice [1] 78:24 8:12 9:16 10:5,13, 40:20 44:3 56:22 57: 79:11,25 1 74:7 75:2,11 76:6,23 None [2] 28:16 53:5 23,24,25 11:14,16 12: 7,19 63:19 67:7 72: listeners [1] 30:2 mattered [1] 29:11 77:16 78:11,17,20 79: nonetheless [1] 50: 18,19,20,21,22 13:14 17 listening [1] 13:23 matters [5] 29:13 32: 5,10 12 14:5 15:7,17,19,25 kinds [5] 34:19 49:9, literal [13] 5:12 24:18 9 39:7 46:3 79:11 misleadingness [1] normal [2] 34:1 62:24 16:4,6,15,20,24 17:7, 10,23 51:14 29:24 31:23 32:3,5 mayor[1] 15:19 50:9 note [14] 9:1,4,11 10: Sheet 4 interpretation - note Official 14:16 15:1,23,25 open [1] 73:13 Pardon [1] 27:6 13,13 41:2 57:22 61: principal [2] 8:23 9: 39:14 42:6 44:21,21 20:17,19 27:17,25 28: opening [1] 32:4 parse [3] 22:8 42:14 7 65:16,17,23 66:7 10 45:14,21 48:14 50:25 37:24 opinion [6] 11:4 63:5 67:10 68:12 70:20 76:17 principle [4] 3:25 13: 51:11,12,24,25 52:3,5, notes [1] 9:5 70:18 74:9 77:22 78: part [4] 9:18 60:20 76: philosophers [1] 53: 8 60:15 61:19 24 53:2,14 54:14,21 notion [1] 57:6 2 4 79:1 10 prison [1] 31:7 55:1,5,11,20 56:5,15 number [10] 5:1 6:2 opinions [1] 70:13 particular [7] 9:11 30: phrase [2] 58:8 70:11 probably[3] 64:20 69: 59:5,19 60:6,13,23,25 13:9,11 14:10,11,12 opponent [1] 69:24 9 37:3 40:24 50:16 piece [1] 50:9 5 70:3 61:2,8,15 62:1,8 64: 25:14 38:22 78:18 opposed [1] 5:11 56:9 72:1 pin [1] 73:24 problem [1] 55:19 18 67:14,14,18,25 69: numbers [1] 15:11 opposition [4] 64:2 particularly [1] 21:17 pivoting [1] 64:11 procedural [1] 17:6 12 75:7 77:25 79:12, numeric [2] 13:10,12 65:3,21 75:20 parts [5] 5:4 19:20 39: places [2] 3:22 79:7 proceed [1] 54:9 24 80:2 numerical [6] 36:20 oral [5] 1:13 2:2,5 3:7 17 70:18 74:17 player[3] 69:22 71:6 proceeded [1] 47:20 questioner [3] 25:22 37:15 44:17 46:24 60: 38:8 passed [2] 78:3,5 73:2 proceedings [1] 61: 34:7 61:17 70:17 order [1] 67:24 path [3] 42:1 55:25 70: please [4] 3:10 27:5 12 questions [9] 4:9 12: O ordinarily[2] 39:4 56: 9 38:11 48:2 prohibit [2] 3:21 65: 10 31:20 40:8 56:2,3 patient [2] 72:1,11 podium [1] 23:24 18 60:10 61:19 78:12 objective [14] 4:14,19 original [2] 39:16 57: patients [1] 72:3 point [17] 6:23 7:20,25 prohibits [3] 38:12 53: quite [1] 32:13 5:17 18:15 19:9 29: 3 PATRICK [1] 1:3 19:3,5 24:24 30:19 2 55:14 quote [1] 38:2 30:5 32:19,25 33: originally [1] 24:17 pattern [5] 66:10 67:4, 50:16 51:7 53:8 57:3, promissory [3] 9:1,4 quoted [1] 47:21 34:15 79:12,16 80: other [31] 6:25 9:5,19, 5 70:17 74:2 13 60:3 65:19 75:1, 10:20 quoting [1] 15:10 24 11:7,11 13:20 19: payment [2] 11:22 12: 15 76:8 prosecute [1] 59:6 R objectively[2] 61:3 21 33:24 38:13 39:17, 4 pointed [1] 47:10 prosecutor [1] 8:5 62:2 18 49:17,21,25 50:13 Peanut [1] 6:3 points [3] 19:7 27:10 prosecutors [1] 28: race [1] 63:12 obligations [1] 9:24 51:3 57:12 58:8,25 penalized [1] 5:4 57:16 10 rate [4] 11:21 12:3,6 observation [1] 54: 59:16,17 60:24 62:10, penalizes [1] 6:4 police [1] 42:17 provide [1] 37:1 14:3 16 74:17 75:5,15 77: penny[3] 10:17 14:21 portion [1] 39:24 prudent [2] 69:4,5 rather [3] 13:4,6 44:15 obviate [1] 70:3 11,14 79:18 32:21 portions [1] 47:22 prudential [1] 21:19 rational [5] 16:21 17: obviated [1] 42:3 others [1] 37:20 people [7] 29:25 33: posed [1] 37:21 puffery[1] 63:16 3 21:25 22:1 26:23 obviously[4] 7:1 10: Otherwise [4] 5:25 19 34:1 53:18 58:13 position [15] 21:22 32: pulls [2] 42:17 43:7 rea [7] 19:11,20,20 20: 13:2 39:6 21:15 30:13 45:6 72:11 79:13 12 39:9,20 40:12,15 punish [1] 25:13 2,3 29:5,9 occasions [1] 5:2 out [14] 7:20,25 11:2, people's [1] 25:4 41:19 57:23 58:6 64: punished [1] 22:21 reach [1] 22:3 occupy[1] 65:14 15 12:3 20:16 27:5,8 percent [2] 58:11,12 7 65:3 75:16,19 76: punishes [3] 3:11,18 reached [3] 17:19 35: offered [3] 11:21 66: 33:12 50:13 51:3 53: perception [17] 5:20 15,24 4:3 11,11 78:18 24 69:23 72:3 7:17 12:13 19:7 29: positions [1] 65:23 punishment [1] 24: read [4] 16:16 17:4 48: Office [1] 6:5 outset [3] 3:15 7:21, 11,13,17 30:2,9,11,20, possibility [2] 73:9, 25 10 50:6 officer [5] 6:5 42:17 25 22 34:13 77:15 78:16 13 purchasers [1] 62:22 reader [1] 49:13 43:7,24 44:1 outstanding [1] 9:25 79:11,25 possible [3] 50:7 68:3, pure [1] 78:24 reading [2] 55:21 76: Often [2] 5:7 19:6 over [8] 3:22 30:19,20 perhaps [2] 42:2 57:4 4 purport [1] 13:3 5 okay[18] 15:8 21:3 24: 31:8 42:18 43:7 49: period [2] 15:12,20 possibly [2] 38:17 78: purpose [5] 19:22 21: really[14] 35:25 40:9 28:22 31:15,16 32: 10 57:8 perjury[6] 59:10,14, 9 15 51:13 60:13 74:16 45:9,12 52:7 53:8 56: 2,4,15 33:1 35:7 46:4 over-enforce [1] 28: 25 61:22 62:3,11 potential [1] 35:8 pursue [1] 44:14 11 57:8 68:7 72:18, 48:13 59:25 60:3 63: 10 permits [2] 44:23 45: potentially [1] 31:9 pursued [1] 34:11 23,24 75:4,9 64:11 71:23 overlap [4] 4:21,23 41: 18 Practices [2] 77:25 push [1] 65:1 reason [4] 34:21 37: omission [6] 11:1,7, 21 72:24 permitted [1] 46:21 78:4 put [3] 3:23 44:25 73: 20 47:5 75:8 23,24 49:24 78:24 overturning [1] 64:23 person [11] 18:16 30: precedent [4] 17:20 24 reasonable [20] 4:16 omissions [2] 5:6 11: owe [13] 8:20,25 9:22 9 33:21,24 34:8 42: 21:3 48:6 64:17 putting [1] 15:20 19:3 20:6,10 21:8,10 10:2,8,8,11 12:12 20: 18,19 43:9,25 46:24 precedents [1] 3:14 Q 24:21 25:20 33:20 35: omit [1] 79:3 11 25:25 37:11 38:24 49:18 preceding [2] 39:14 9 36:2,24 37:7,17 43: one [23] 4:13 7:15 13: 42:7 personal [9] 9:14 14: 51:12 QP [7] 53:4,6,25 55:10, 6,23 44:9 45:6 63:17 19:21 24:1 29:1 owed [15] 7:14 8:17 9: 16,25 20:17,19 27:16, precise [7] 27:18 38: 11,17 63:24 74:20 31:18 42:20,21 43:10, 11 13:6 14:24 26:3 25 28:2 37:24 16 41:2 50:19 61:8 qualification [1] 45:8 reasonableness [1] 49:19 50:22 53:17 27:24 37:25 38:19 41: perspective [3] 29:10, 64:18 65:25 qualifies [1] 53:4 9:17 54:20 57:11,17 63:11 3,9 42:8 60:14 73:15, 19 74:10 precisely [1] 25:8 qualify[3] 43:1 60:7 reasoned [1] 47:16 65:10 69:15,21 74:4 16 pertinent [3] 28:16 39: presentation [1] 61: 76:22 reasons [1] 21:19 75:15 P 23 69:19 18 qualitative [1] 63:5 REBUTTAL [4] 2:8 one's [1] 64:17 petition [2] 40:25 52: presented [19] 17:6 question [99] 5:18 6: 68:16 77:4,5 ones [5] 3:12 4:4 22: packet [1] 58:10 6 20:23 22:6,7 24:8 35: 24 7:2 8:25 9:8,9,23 rebutted [1] 78:6 44:24 67:6 PAGE [7] 2:2 39:5 65: Petitioner [24] 1:4,19 2 44:17 52:5,25 53:2 10:2 16:7,14 17:1,6 receiving [1] 38:18 only[28] 3:11 4:7 5:4 5,10,11 75:22 76:5 2:4,10 3:8 34:7 38:19, 54:14,21 55:2,20 56: 20:4,14,16,18,22 21: recent [1] 78:20 7:10 8:11 10:16 14: pages [1] 40:25 20 39:6,12 40:3 42:4 3 59:5 67:14,15,18 17 22:5,7,12,12 24:8 recognize [2] 78:10 16:2,8 32:8,20 34: paid [1] 31:13 56:25 57:5,19 60:14 presumably [1] 34:23 25:7,24,24 27:18,19, 79:9 35:8 39:13,24 41: paired [2] 5:8,9 66:2 67:22 69:7 73: pretend [1] 35:13 23 29:2,2,5,6,12,16 recognized [1] 5:1 42:8 45:10 46:1 59: paragraph [1] 75:21 14 74:21 75:22 76:6 pretty[3] 21:8 36:1 50: 32:1,10,18,24 33:2,3 record [2] 20:1 74:19 60:20 61:12 66:3,8 paraphrasing [1] 57: 77:6 1 34:15 35:14 36:8,22, redundancy [1] 3:24 67:6 70:20 73:8 76:6 19 Petitioner's [12] 40: prime [1] 77:23 22,25 37:4,5,11,17,21 referred [1] 5:6 Sheet 5 note - referred Official referring [1] 75:20 11 42:11,13 43:11,15, set [7] 13:8 35:10 51: 10,14,15 40:5 69:20 49:24,25 52:1 54:8 7 30:21 69:2 70:12 refers [2] 30:22 67:15 20 62:14 63:7,11,14, 18 53:11,12 56:9,17 spin [2] 27:4,7 61:10 77:14 78:3,5 77:13,13,16,18 regard [2] 10:23,25 22 70:23 71:24 73:19 Seventh [37] 17:20 21: squarely [1] 9:12 statutory[5] 3:14,25 terms [3] 3:22 9:9 25: reiterate [2] 39:8 56: 74:24 77:2 80:3,6 2 24:11,24 31:12 34: stage [1] 52:14 5:21,22 78:6 17 Rotkiske [1] 77:23 18 35:8,12,18 40:20, stake [1] 31:9 staying[1] 59:7 test [1] 69:25 reject [1] 39:14 row [3] 25:19 26:19,22 22 44:22,25 45:17 47: standard [9] 8:2 21:9 still [5] 19:10 30:18 31: testified [2] 28:4 37: rejected [1] 65:22 Rule [15] 5:3 9:12 39: 9,14,22 48:22 50:6,7, 25:20 35:21 47:7,18 9 70:2 76:7 22 relates [1] 4:18 15 40:20 50:17 59:10 8,15,25 52:7,10 57:4, 64:21 66:16 74:4 stop [2] 51:17 73:11 testimony [2] 12:15 relevant [7] 6:24 29: 60:8 66:2 68:15 71: 25 64:8 65:20 66:5, start [1] 20:16 store [3] 12:24,25 13: 60:11 44:4 49:20,21,22 21 74:9 78:2,5,8,25 13 67:2 68:1 70:11 state [3] 41:24,24 60: 1 text [4] 3:13 4:1 77:9 78:15 rules [1] 61:12 73:4 74:19 79:20 20 story[1] 38:4 79:8 relief [1] 76:1 runs [1] 48:6 shocked [2] 38:21 73: stated [2] 41:8 66:13 straightforward [1] Thanks [1] 67:12 rely[1] 7:16 S 15 statement [120] 3:19 52:3 Them's [1] 26:7 remand [11] 4:5 17:15, shot [2] 53:5 68:15 4:13,15,15 5:19 6:11 strange [1] 45:15 theory[2] 44:14 59:22 25:17 34:18 35:8, safe [1] 58:14 shouted [1] 14:20 7:2,12 8:17,21,25 9:3 strength [1] 22:18 there's [20] 5:9 11:2 45:21 47:8 52:12 sake [1] 58:5 show [1] 24:1 10:17 11:12 12:5 13: stuff [1] 50:13 14:23 18:10 25:11 26: 64:22 sales [1] 62:24 showed [1] 37:23 3,10,17 14:15,18,19, subject [2] 39:25 69: 24 28:6 30:17 33:17 remanding [1] 24:24 salt [1] 63:10 shows [1] 15:11 22,25 15:4,9,22,24 16: 20 40:19 41:12 50:13 58: render [1] 70:1 same [7] 13:5 34:24 side [5] 33:24 57:12 12,18,22 17:2,4 18:20 submission [1] 36:24 16,25 59:12 67:8,13, renews [1] 75:22 39:16 57:21 60:13,16 58:8,25 60:24 20:6,11 21:5 22:25 submitted [2] 80:7,9 20,21 78:10 repeating [1] 43:19 69:20 similar [1] 53:20 23:2,3,4,9,13 24:19 subsection [1] 61:13 therefore [4] 3:16 8: reply[3] 31:22 39:5 satisfy[1] 54:22 simply[1] 45:3 25:7,25 27:15 28:17, sufficient [1] 47:2 10 39:3 67:24 68:16 saying[13] 8:20 10:11 single [1] 29:15 21 29:3,7 30:1,10,17 suggest [1] 3:17 thinking [5] 13:23,24 represent [1] 11:25 20:5 24:21 33:11 42: situation [7] 34:2,11 32:18,19,23 33:12,15, suggested [2] 32:7 23:10 48:23 70:16 representations [5] 6 45:3 58:20 59:1 60: 49:18,20,22 56:11 57: 16,18,21 34:25 35:4, 79:19 thinks [3] 42:18 68:13 48:8,11 64:4 65:18 16 61:12 64:11 73:15 7 15 36:11,17 38:13,14, suggesting [3] 5:15, 77:19 73:10 says[25] 5:23 16:7 19: situations [1] 56:17 23 39:7,24 40:1 41: 23 29:15 THOMAS [6] 4:10,20 require [1] 37:1 8 26:1 36:6,16,17,18 Sixth [1] 11:3 13,24 42:8 43:5 44: suggestion [1] 78:14 5:7 28:23 40:9 70:25 required [2] 46:8,18 41:16 42:4,18,20,24, sloppy[1] 24:11 11 49:14 50:11,12,19 summary [1] 64:24 Thomas's [1] 77:22 requirement [2] 13: 24 43:10 49:11,19 60: Solicitor [1] 1:20 53:3 54:8,22,23,24 sun [2] 5:18 30:5 THOMPSON [12] 1:3 54:23 24 62:20 65:5 66:11 solid [1] 26:25 55:11,14 57:1 58:18 super [1] 72:25 3:5 8:6,9 9:7 10:4,9 requires [2] 6:10 11: 67:7 69:7 72:2 78:17 somebody [4] 14:10 59:15,16 66:1,11,19 supply[1] 77:12 13:11 14:20 16:13 20: scenario [1] 56:12 26:6 43:7 49:11 67:19,20 68:2,4,18,19, support [1] 61:3 18 32:20 resist [1] 73:7 second [3] 5:5 27:14 someone [1] 55:25 20 69:6,20,25 70:7 supports [1] 22:6 Thompson's [2] 4:7 resisting [1] 73:8 79:2 someone's [1] 62:19 71:18,19,21 72:7,19, supposed [2] 35:3 61: 48:5 resolve [5] 22:12 44: Section [10] 3:11 4:3 someplace [1] 11:21 19 73:14 74:13 75:23 6 though [8] 19:11 23: 13,20,21 66:3 38:12 48:7 65:6,17 sophisticated [3] 25: 76:4,7,9 77:15 79:4 SUPREME [5] 1:1,14 22 35:13 40:19 56:2 resolved [2] 31:12 45: 75:21 78:22,25 79:2 5,15,22 statements [48] 3:12, 23:8,14,23 62:4 64:17,19 Securities [1] 6:1 sorry[16] 6:15 7:8,23 18 4:3,7,23,24 5:5 6: surgeon [1] 73:2 thoughtless [1] 3:24 respect [1] 16:3 see [14] 5:7,13 11:17, 10:5,24 32:14 43:14, 4,7 7:11 8:4 17:23 22: surgeries [2] 72:3,7 thousand [5] 13:21 respectfully [2] 53:16 23 12:8 15:14 40:24 18 54:15 55:10 63:13 9,20 27:12,17 40:14 surgery[2] 72:1 75:8 14:1 15:12,14 16:2 65:1 42:25 55:13,14,23 56: 65:9 69:18 70:22 71: 41:3,7,17 44:24 47: surprising [1] 22:17 three [8] 8:19 27:9,9 respond [2] 8:10 9:23 1 63:17 67:17 14 73:23 20 48:5,19 49:2,10,17 surrounding [2] 33:2 36:10,16,18 57:23 60: Respondent [4] 1:7, seem [1] 28:5 sort [7] 7:16 33:16 50: 51:16 54:13 57:22 58: 44:3 2 2:7 38:9 seems [5] 9:19 42:15 8 57:18 62:24 63:16 2 59:6 62:18 64:5 65: Swiss [2] 9:15 34:9 throughout [2] 54:3 responding [1] 32:11 50:1 56:7 57:4 66:25 4,8 66:7,14,15 67:15 synonymous[1] 58:7 76:8 responds [2] 25:25 seen [4] 49:9 62:21,21 SOTOMAYOR [34] 68:8,8 69:13 74:23 synonyms[1] 4:25 tied [1] 14:16 36:10 67:6 10:24 15:7,17,25 16: 75:24 76:18 79:1,3 T time's [1] 31:7 response [17] 8:19 10: sees [1] 63:17 4,15,20,24 17:7,8,12, STATES [8] 1:1,6,15 Title [1] 54:4 12,12,16 13:9,12 34: sell [1] 62:19 14,24 30:25 58:4,24 3:5,23 13:24 23:14 table [1] 33:24 today[8] 23:9 32:8 39: 35:8 36:19,23 37: selling [1] 58:13 59:13,21 60:1,18,22 39:24 tackle [2] 53:8,13 9 40:19 60:8 67:11 38:18 42:5 54:17 send [3] 7:18 51:18 61:14,21,24 62:6,9,12 stating [1] 70:7 talked [3] 32:3 49:11 71:22 76:25 60:6 73:14 75:17 67:2 71:2,3,7,9,13,15,23 Statistics [1] 6:3 67:10 took [7] 15:9 44:12,13, restitution [2] 31:9,11 sense [5] 46:22,24 55: Sotomor [1] 15:19 statute [37] 3:17 6:10 talks [2] 41:5 55:8 16,20 45:16 65:2 result [1] 35:11 1,24 58:18 sounds [2] 12:11 41: 7:10 17:22 22:22 25: tantamount [1] 8:19 total [3] 8:17 16:14 37: reus [1] 29:6 sent [4] 8:13 15:9,11 15 4,8,12,13 28:10 40:7 teaches [1] 77:17 24 reverse [1] 47:8 74:14 speaker [2] 40:3 47: 42:23,24 44:13,23 45: technically [4] 62:15, totally[2] 15:8 29:22 review [2] 45:24 76:2 sentence [2] 31:5 48: 24 1,4,13,18 46:8,18 50: 18,25 63:1 touch [1] 79:17 ripple [1] 54:3 10 speaker's [1] 39:15 1 53:2 56:16 58:21 tells [3] 11:19 30:20 tough [5] 25:19 26:19, rises [2] 5:18 30:6 separate [2] 12:3 20: speaking [1] 13:22 59:11,25 64:3 69:7 33:16 22 42:14,14 ROBERTS [32] 3:3 12: 3 specialized [2] 39:2 73:9 77:8,9,13,18,23 tendency [1] 5:9 toxic [3] 58:10,11,12 19,21 18:3,25 24:4 serial [1] 3:24 67:9 78:1,8 tennis [3] 69:22 71:6 treated [2] 42:22 43:4 28:11,14,19,22 30:24 served [3] 31:5,8 60: specific [11] 13:10,12, statutes [15] 5:14,25 73:1 treating [1] 50:8 31:17 34:16 38:5 41: 12 15 32:20 36:20,25 37: 6:2 41:13,14,20 43:4 term [11] 4:17,18 19:6, trial [3] 32:16 34:22,23 Sheet 6 referring - trial Official true [39] 3:12,16,19,19 unsophisticated [1] 11 25:7,17 29:3,4 30: 4:14 8:7 9:4 10:4,12 26:12 7 35:4,9,25 39:7 40: 11:15 12:1,6,25 13: untrue [10] 38:14 39: 10,17 44:1,6,8,13,22 14:17,18 15:15 16: 24 40:4 41:4 66:12, 45:17 48:4 53:2 54: 1,9 20:20 23:9 27:13, 19 67:8 74:12,13,22 21,22 55:14 62:1 74: 28:2 30:18 38:2 up [3] 36:10 42:16 63: 13 76:20 77:25 48:5 49:12,13 50:12 24 whichever [1] 14:2 52:11 55:25 57:22 58: urge [1] 39:14 whit [1] 64:20 3,9 62:15,25 72:7 79: useful [1] 51:2 whole [5] 8:7 38:4 49: uses [2] 19:5,6 7 60:21 69:6 trust [1] 53:18 using [3] 3:21 30:21 whom [2] 30:10 32:10 truth [8] 8:8 19:5 29: 46:25 will [4] 3:3 22:8 68:10 39:25 59:2 79:3, utterance [1] 29:7 70:15 15,15 V Williams [1] 33:15 try[1] 7:1 win [4] 21:7 45:4 59: trying[11] 11:1,24,25 vacate [4] 17:14,17 45: 19,21 33:12 44:1 47:24 48: 21 47:8 wine [1] 42:21 62:19 67:10 71:25 vacating [1] 21:16 wish [1] 49:8 77:12 vacuum[1] 38:16 wishes [1] 30:20 Tuesday [1] 1:11 various [2] 8:15 13:16 withdrew [1] 24:18 Turns [1] 72:3 vary[1] 18:20 within [4] 9:12 52:20 two [11] 4:21 5:4,9,16 vehicle [2] 64:15,15 59:7 75:24 19:20 27:21,21 43:4 verdict [4] 17:9 41:7 without [1] 73:11 47:11 50:22 58:17 56:23 64:23 witness [1] 28:3 twofold [1] 36:13 verify[1] 9:21 witness's [1] 61:18 types[2] 3:18 25:14 versus [3] 3:5 64:5,19 witnesses [1] 37:22 typically[1] 21:19 view [8] 5:12 24:22 45: won [5] 69:22 70:5 71: 55:19 62:23,24 72: U 10,11,16 75:12 word [10] 3:16 16:17, U.S [1] 6:5 viewed [3] 6:11 23:1 25 41:19 43:2 47:1 under [18] 14:25 21:2 24:15 48:24 65:21 76:16 79: 26:4 42:23 43:1,4 45: violated [1] 76:7 10 50:17 54:8,22,23 violates [2] 3:25 40:6 words [11] 9:19 15:22 56:15 60:7,17 71:4,5, virtue [1] 65:24 38:13,16 41:2 50:19 21,21 volunteered [1] 14: 65:25 67:1 70:20 74: underreports [1] 46: 19 18 75:5 W work [4] 24:11 41:19 understand [21] 7:12 62:16 77:20 8:18 16:5 18:16 29: walk [2] 48:20 49:2 works [1] 33:14 30:14 33:10 34:1, walked [2] 14:20 66:2 world [1] 49:8 35:25 37:8 47:3 wanted [1] 34:8 worth [1] 25:17 60:1 62:4 64:9,10 66: warranted [1] 76:2 67:18 68:1,7 74:3 Washington [3] 1:10, Y understanding [10] 4: 21 41:3 years[2] 23:7 49:11 8:12 24:16 33:19, Waxman [2] 23:11 24: younger[1] 79:14 23,25 45:4 68:5 73:5 76:15 way[14] 10:13 11:9 14: understate [1] 13:11 2 17:4 31:25 37:5,18 understatement [4] 39:16 47:2 49:14 56: 62:16 71:16 76:19 36:19 44:18 46:25 70: ways[2] 13:20 69:15 understating [2] 13:9 website [2] 23:6 68: 60:5 understood [7] 17:3 welcome [2] 4:9 40:8 26:2 39:4,8 41:22 65: Wells [3] 25:10 77:11, 23 76:14 UNITED [7] 1:1,6,14 3: west[2] 5:19 30:6 5,22 13:23 23:14 whatever [3] 36:8 71: universe [1] 4:19 17 75:8 unless [2] 29:23 67: whatnot [1] 7:17 whenever [1] 26:22 unmistakable [3] 41: Whereupon [1] 80:8 66:6 70:19 whether [32] 4:6 9:14 unpaid [1] 8:23 13:17 17:21 22:20 23: Sheet 7 true - younger