Daley Thompson Court Docs

Case: 1:21-cr-00279 Document #: 152 Filed: 03/15/22 Page 1 of 3 PageID #:3179
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, )

)
Plaintiff, )
) Case No. 21 CR 279
vs. )
) Hon. Franklin U. Valderrama
PATRICK THOMPSON, )
)
Defendant. )
DEFENDANT’S UNOPPOSED MOTION FOR LEAVE TO FILE POST-

TRIALMOTION FOR JUDGMENT OF ACQUITTAL AND FOR NEW TRIAL BRIEF
IN EXCESS OF 15 PAGES
Defendant Patrick Thompson, by undersigned counsel, seeks leave pursuant to Local Rule
7.1 to file instanter his consolidated post-trial motion for judgment of acquittal and motion for new
trial in excess of 15 pages, for the reasons set forth below:
1. Local Rule 7.1 provides that no brief submitted to the Court “shall exceed fifteen pages
without prior approval of the court.” L.R. 7.1. By this motion, Defendant Thompson respectfully
requests leave to file a 25-page consolidated post-trial Motion for Judgment of Acquittal and For
a New Trial, which is attached hereto as Exhibit 1.
2. Defendant Thompson submits that the extra pages are necessary to adequately raise all
issues from Defendant’s six-day trial so that the issues are not waived. See United States v. Hall,
142 F.3d 988, 996 (7th Cir. 1998) (evidentiary issues not raised in the district court are considered
forfeited on appeal); United States v. Payne, 102 F.3d 289, 292-93 (7th Cir. 1996).
3. Defense counsel has conferred with counsel for the government and counsel for the
government does not object to this motion.
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WHEREFORE Defendant requests that this Court enter an Order granting him leave to file
instanter his 25-page Post-Trial Motion for Judgment of Acquittal and Motion for a New Trial.
Dated: March 15, 2022 Respectfully submitted,
/s/ Carly Chocron

Chris Gair (cgair@gairlawgroup.com)
Jeff Eberhard (jeberhard@gairlawgroup.com)
Carly Chocron (cchocron@gairlawgroup.com)
Gair Eberhard Nelson Dedinas, Ltd.
1 East Wacker Drive, Suite 2600
Chicago, Illinois 60601
(312) 600-4900
2
CERTIFICATE OF SERVICE
The undersigned certifies that on March 15, 2022, she caused a copy of the foregoing
document to be filed via this Court’s CM/ECF system which will provide service on all Parties of
record.
/s/ Carly Chocron

Carly Chocron
3
Case: 1:21-cr-00279 Document #: 152-1 Filed: 03/15/22 Page 1 of 27 PageID #:3182
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, )

)
Plaintiff, )
) Case No. 21 CR 279
v. )
) Hon. Franklin U. Valderrama
PATRICK THOMPSON, )
)
Defendant. )
DEFENDANT’S POST-TRIAL MOTION FOR JUDGMENT OF

ACQUITTAL AND FOR A NEW TRIAL
Defendant Patrick Thompson, by undersigned counsel, respectfully moves the
Court to enter a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29(c), or, in the alternative, for a new trial pursuant to Rules 33 and 29(d).
I. MOTION FOR JUDGMENT OF ACQUITTAL ON ALL COUNTS
A. Legal Standard
Under Rules 29(a) and (c), following a guilty verdict “the court on the
defendant’s motion must enter a judgment of acquittal on any offense for which the
evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29 (emphasis added).
A “Rule 29 judgment of acquittal is a substantive determination that the prosecution
has failed to carry its burden.” Smith v. Massachusetts, 543 U.S. 462, 468 (2005). To
prevail, a defendant “must show that no rational trier of fact could have found that
the government proved the essential elements of the crime beyond a reasonable
doubt.” United States v. Griffin, 684 F.3d 691, 694 (7th Cir. 2012). “If the evidence
would not allow a civil case to survive a motion for summary judgment or a directed
1
verdict, then the case has no business being given to a jury in a criminal trial.” United
States v. Garcia, 919 F.3d 489, 491 (7th Cir. 2019); United States v. Jedynak, 45 F.
Supp. 3d 812, 821 (N.D. Ill. May 6, 2014); United States v. Acox, 2008 WL 4210774,
*4-5 (N.D. Ill. Sept. 10, 2008); United States v. Allied Asphalt Paving Co., 451 F. Supp.
804, 812 (N.D. Ill. May 31, 1978).
B. Judgment of Acquittal is Required on Counts One and Two
Counts One and Two of the indictment charged violations of 18 U.S.C. § 1014
in statements made to Planet Home Lending and the FDIC, respectively, on February
23 and March 1, 2018. Specifically, Count One charged that Mr. Thompson “falsely
stated he only owed $100,000 or $110,000 to Washington Federal and that any higher
amount was incorrect, when defendant then knew he had received $219,000 from
Washington Federal.” (Indictment at p. 3, ECF No. 1.) Count Two similarly charged
that Mr. Thompson “falsely stated that he only owed $110,000 to Washington
Federal, that any higher amount was incorrect, and that these funds were for home
improvement, when defendant then knew he had received $219,000 from Washington
Federal and the $110,000 was paid to a law firm as defendant’s capital contribution.”
(Id. at p. 4.)
To convict defendant on these counts, the government was required to prove
the following key elements of each of these charges beyond a reasonable doubt:
1) The defendant made a charged false statement to Planet Home Lending/the

Federal Deposit Insurance Corporation, orally;
2) At the time the defendant made the statement, he knew it was false; and
3) The defendant made the statement with the intent to influence the action
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of the Federal Deposit Insurance Corporation/a financial institution in

collecting money owed by defendant to the Federal Deposit Insurance
Corporation. (Jury Instructions at pp. 19, 23 (ECF No. 135).)
As explained below, the government failed to prove any of these elements beyond a
reasonable doubt, and no rational jury could have found Mr. Thompson guilty based
on the evidence.
1. The government did not prove beyond a reasonable doubt that the
charged statements were even made, and the evidence showed a fatal
variance from the indictment.
At the outset, Counts One and Two fail because it is undisputed that the
charged statements were not even made. As to Count One, the evidence consists of a
recorded call Mr. Thompson had with Bill Murray, a customer service representative
of Planet Home Lending, on February 23, 2018. On that call, Mr. Thompson stated,
“I borrowed $100,000,” which he later corrected to $110,000. (DX 11 and G-189 at
3:13, 7:8-10; see also DX 10 and G-188 (audio recording).) Contrary to the allegations
in the Indictment, Mr. Thompson said nothing at all about what he owed (apart from
telling Mr. Murray that he would pay back whatever he owed). His statement about
borrowing $110,000 says nothing about how much he owed. Notably, “borrow” does
not mean “owe.” (Holly Testimony, Tr. at 1033-34.) A person may borrow a sum of
money yet owe more than he borrowed due to interest running. Mr. Thompson’s
statement about borrowing $110,000 is not tantamount to a statement about what he
owed (or did not owe).
Moreover, Mr. Thompson did not say he did not owe (or borrow) “any higher
amount” as charged. Rather, he simply disputed that he borrowed a specific amount,
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namely, $269,000. Disputing borrowing (or even owing) $269,000 is not an assertion
that he borrowed or owed no more than $110,000. Indeed, his statement that he
disputed the balance was not even a statement of fact capable of being true or false.
It was in fact the case that he disputed the balance of $269,000.
There also was no evidence introduced by the government of the first false
statement charged in Count Two. The conversation in which the charged statement
was alleged to have occurred was a March 1, 2018 telephone discussion with Dan
Newell and John Holly, which was reflected in Planet Home Lending’s
communication log. (G-191.) The communication log states:
Also on the call, Mr. Thompson spoke about his personal debt
110,000. John Gembara loaned him 110,000 for home
improvement, which was to be rolled up into his home loan (Bank
was to do a term loan). Bank funded the loan with cashiers
checks. He is disputing his balance and is sending us the
documentation for this also. When John Holly told Thompson we
could document these loans such as to put the appropriate
mortgages in place, etc., Thompson express willingness to effect
such.
(Id. at 2.) This is a statement about what amount he borrowed, not about what he
owed. At trial, the testimony was consistent with the substance of the communication
log on this point. On the call, Holly and Newell were asking Mr. Thompson how much
he “borrowed” not how much he “owed” (Holly Testimony, Tr. at 1033-34.) Mr. Holly
agreed that there is a difference between what you borrow and what you owe. (Id.)
Moreover, Mr. Holly directly and explicitly contradicted the precise charge in Count
Two, testifying that Mr. Thompson “did not say he only owed $110,000 and that any
higher amount was incorrect.” (Id. at 1034.) Mr. Newell likewise agreed that Mr.
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Thompson never said he only owed $110,000. (Newell Testimony, Tr. at 1088-89.)
Indeed, Mr. Holly was not even sure if he or Mr. Newell mentioned the total figure
supposedly “owed” of $269,000 (Holly Testimony, Tr. at 1030, 1032-33), and there is
nothing in the log about either the $219,000 borrowed or the $269,000 balance. (G-
191; Holly Testimony, Tr. at 1030; Newell Testimony, Tr. at 1089.) Thus, no rational
jury could have convicted on the charged false statements because it is undisputed
that they were never even made.
Because the charged statements were never made, Mr. Thompson was
convicted based on a sleight of hand. In particular, the jury was allowed to conflate
what Mr. Thompson actually said (I borrowed $110,000) with what the indictment
charged (I only owe $110,000 and any higher amount is incorrect). This violated Mr.
Thompson’s Fifth Amendment rights by constructively amending the indictment and
broadening the possible bases for conviction beyond those presented by the grand
jury. See United States v. Willoughby, 27 F.3d 263, 266 (7th Cir. 1994) (constructive
amendment is reversible per se). Here, the divergence between the indictment and
the evidence constitutes a reversible, constructive amendment, and not merely a
variance, because the Indictment alleges an actionable false statement (i.e., Mr.
Thompson said he “only owed” $110,000 and “that any higher amount is incorrect”)
whereas the evidence shows only a literally true statement (i.e., Mr. Thompson said
he “borrowed” $110,000 and disputed the $269,000 balance), which cannot sustain a
conviction. See id.; Bronston v. United States, 409 U.S. 352, 357-58 (1973); see also
Stirone v. United States, 361 U.S. 212 (1960) (holding that constructive amendment
5
to indictment was fatal, requiring judgment of acquittal); United States v. Lippi, 190
F. Supp. 604, 606 (D. Del. Feb. 2, 1961) (proof of payment of insurance premiums was
“thing of value” and not “money” as identified in the indictment that constituted fatal
variance requiring judgment of acquittal).
As to the second false statement in Count Two regarding the purpose of the
$110,000 loan, no rational jury could have found that Mr. Thompson made the
statement that it was used for “home improvement.” The communications log showed
that in the March 1, 2018 conversation, the parties discussed two loans in very similar
amounts, the ward office loan and the personal loan. (G-191; Holly Testimony, Tr. at
1019-20.) According to the log, Mr. Thompson said that both were for building
“improvements.” But the overwhelming evidence showed that that was not what he
said.
First, Mr. Holly admitted that although the log separated the discussion of the
ward and personal loans into two separate paragraphs, there was no separation in
the actual conversation, providing an obvious reason for confusion by the writers.
(Holly Testimony, Tr. at 1025-26, 1035, 1049.) Second, the log contains no entries
after March 1 indicating that the FDIC and Mr. Thompson ever again discussed the
purpose of the $110,000 loan (G-191; Holly Testimony, Tr. at 1039-41; Newell
Testimony, Tr. at 1096-98), and none of the government’s hundreds of exhibits
suggested that they ever did. However, the uncontradicted evidence from the email
Mr. Newell sent to Mr. Thompson on April 2, 2018 shows that Mr. Thompson had told
the FDIC agents that the loan was for his contribution to a law firm. (G-199.) Both
6
Mr. Holly and Mr. Newell admitted that the only time they discussed the purpose of
the loan with Mr. Thompson was on March 1. (Holly Testimony, Tr. at 1041; Newell
Testimony, Tr. at 1098.) Therefore, Mr. Thompson must have told them it was for
his law firm buy-in during the March 1, 2018 conversation, not that it was for home
improvements. 1 In short, the second false statement was never made.
2. The government did not prove beyond a reasonable doubt that

the statements made were false.
a. Proof of literal falsity is required for conviction under

Section 1014.
A conviction for false statements cannot be sustained where, as here, the
alleged statements are literally true, even if misleading. Bronston, 409 U.S. at 362.
Indeed, courts have consistently held that statutes criminalizing false statements
cannot be extended to criminalize false implications. In Bronston, the defendant was
charged for the following exchange:
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?

A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
Q. Have you any nominees who have bank accounts in Swiss banks?
A. No, sir.
Q. Have you ever?
A. No, sir.
Id. at 354. The government contended that the defendant committed perjury because
he failed to disclose that he had previously had personal Swiss bank accounts, instead
1There further were plenty of other reasons to question the accuracy of the Communication Log and
Mr. Holly’s and Mr. Newell’s recollection, including that both of them admitted the log contained
numerous errors, and the fact that Mr. Newell erroneously told the agents on December 3, 2020 that
Mr. Thompson disputed the entire loan balance, including the $110,000, and that this would be a “big
mistake of memory.” (Newell Testimony, Tr. at 1090-92; Gibson Testimony, Tr. at 1173-74.)
7
answering non-responsively to the second question. The Court held that despite “an
implication in the answer to the second question that there was never a personal
bank account,” the conviction could not be sustained because the statute did not
“make it a criminal act for a witness to willfully state any material matter that
implies any material matter that he does not believe to be true.” Id. at 357–58.
In Williams v. United States, 458 U.S. 279 (1982), the Supreme Court extended
the same principle to the statute at issue here, 18 U.S.C. § 1014. In Williams, the
defendant was charged with violating 18 U.S.C. § 1014 by writing bad checks. The
government argued that a person writing a check is generally understood to represent
that he currently has funds on deposit sufficient to cover the face value of the check.
Id. at 285. The Court rejected that argument because “a check is literally not a
‘statement’ at all,” reasoning that “when interpreting a criminal statute that does not
explicitly reach the conduct in question, we are reluctant to base an expansive
reading on inferences drawn from subjective and variable ‘understandings’.” Id. at
286.
In United States v. Krilich, 159 F.3d 1020, 1029 (7th Cir. 1998), the Seventh
Circuit expressly applied the literal falsity test in upholding the defendant’s
conviction under Section 1014, explaining that “a misleading implication differs from
a false statement,” and what Krilich had done was not to provide a misleading
implication but to “cause vendors to make literally false statements.” Id. (emphasis
added); see also United States v. Attick, 649 F.2d 61, 63 (1st Cir. 1981) (“[O]ne cannot
be convicted under 18 U.S.C. § 1014 if the statement claimed to be false is, in fact,
8
literally true.”); United States v. Watts, 72 F. Supp. 2d 106, 117 (E.D.N.Y. 1999)
(granting motion for judgment of acquittal in Section 1014 case because the
government “has not disproved the ‘literal truth’” of the statements as required by
Bronston).
More recently, in United States v. Kurlemann, 736 F.3d 439, 448 (6th Cir.
2013), the Sixth Circuit expressly held that a conviction under 18 U.S.C. § 1014
requires a literally false statement and cannot rest on mere implied
misrepresentations, material omissions, or half-truths. “Until Congress opts to
extend § 1014 to material omissions, implied misrepresentations, or fraud—all ways
of getting at deceptive ‘half truths’—we must take the statute as we find it, and as
the Supreme Court has construed it.” Id. at 449-50 (reversing conviction).
During trial, the government cited United States v. Swanquist, 161 F.3d 1064
(7th Cir. 1998), for the supposed proposition that literal falsity is not required to
convict under Section 1014. The issue here—whether a literally true statement can
support a conviction under 18 U.S.C. § 1014— was neither argued nor decided in
Swanquist. Although the defendant in Swanquist was prosecuted under § 1014 for
failing to disclose various debts, the defendant did not argue on appeal that his
statements were literally true. Rather, he argued that “he believed his answers to be
truthful based upon his own understanding about which categories of debts were
required to be disclosed in the documents.” Id. at 1071. 2 Importantly, Swanquist does
2
It is axiomatic that a decision cannot be precedential on a point of law neither argued by the parties
nor discussed in the opinion. United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).
9
not even mention Krilich, a brand-new decision on the literal falsity requirement at
the time the case was decided.
Moreover, it is clear that Swanquist’s loan applications were literally false.
Such applications uniformly require a borrower to disclose all debts. When a
borrower, like Swanquist, discloses less than all of his debts, he is making a literally
false statement about the amount of his debts.
The government also relied on United States v. Wells, 63 F.3d 745, 751-52 (8th
Cir. 1995), which collected cases in which “various types of acts and
misrepresentations” were deemed to be false statements. However, the cases cited in
the Wells decision, like in Swanquist, involved failures to disclose debts or other
expressly-requested information on loan applications or similar forms and thus
involved actual false statements unlike the literally true statements on which Mr.
Thompson was convicted. Moreover, Wells does not even cite let alone address the
Supreme Court’s decisions in Bronston and Williams.
Accordingly, all of the pertinent authority, including binding decisions by the
Supreme Court and Seventh Circuit, prohibits conviction under § 1014 for literally
true statements, even if they are misleading or omit material information.
b. Mr. Thompson’s statements to both Planet Home

Lending and the FDIC were literally true.
As discussed above, there is no dispute about what Mr. Thompson actually said
during the two telephone conversations charged in the indictment. On both calls, he
said “I borrowed $110,000.” There further can be no dispute that this statement was
literally true. Mr. Thompson did borrow $110,000 as the overwhelming evidence at
10
trial established.
Here, of course, neither Planet Home nor the FDIC asked Mr. Thompson the
question: “how much do you owe?” (Or even “how much did you borrow?”). With
respect to the Planet Home Lending call, Bill Murray testified that the substance of
the conversation was that “Mr. Thompson asked for help in figuring out what the
balance of his loan was” (Murray Testimony, Tr. at 1180), and only “believed” that he
had borrowed $110,000. (DX 76.) Moreover, on the March 1, 2018 call, Mr. Thompson
acknowledged borrowing $110,000, did not say this was the only amount he borrowed,
and said nothing about what he owed. None of the statements on either the February
23 or March 1 calls was a false statement, and in fact the statements were literally
true. Thus, neither Swanquist nor Wells has anything to do with this case, and Mr.
Thompson has been convicted of something that is not a crime under the plain
language of the statute and Supreme Court and Seventh Circuit precedent.
3. The government did not prove beyond a reasonable doubt that

Mr. Thompson knew his statements about the amount
borrowed were false.
As demonstrated above, Mr. Thompson never made the alleged statements
charged in the indictment, and the statements he did make were true. But even had
they been false, the government did not prove beyond a reasonable doubt that he
knew they were false—that is, that he knew at the time he made the statements that
he owed $269,000. To the contrary, the witnesses to the two charged conversations
made clear that Mr. Thompson did not know how much he had borrowed. Mr. Murray
testified that Mr. Thompson was trying to figure out his loan balance. (Murray
11
Testimony, Tr. at 1180.) Mr. Holly testified that during the March 1 conversations,
Mr. Thompson “didn’t realize – I don’t think he realized it was that much.” (Holly
Testimony, Tr. at 1011, 1033.) Mr. Newell testified that Mr. Thompson “didn’t know
what he owed.” (Newell Testimony, Tr. at 1091-92.) And when Mr. Holly revealed to
Mr. Thompson the full amount borrowed four days later, “he was surprised I’ll put it
that way.” (Holly Testimony, Tr. at 1050-51.)
The government’s argument that Mr. Thompson had been given loan
documents showing that he owed $249,050 years earlier does nothing to undermine
the proof of what he believed during the 2018 conversations. Being sent a document
years earlier does not amount to proof that Mr. Thompson saw the information at the
time, remembered it years later, and understood the information to mean that his
present statements were knowingly false. In fact, the government’s own evidence
makes clear that Mr. Thompson did not believe at any time that he owed the $249,000
figure, as demonstrated by the question mark he placed on the back of an envelope:
(DX 87, G-68.) And the testimony from Murray, Holly, and Newell described above
further refutes that Mr. Thompson saw, remembered, and believed any prior
12
information about owing $249,000 or some higher amount.
Thus, the government did not prove knowledge of the falsity of the alleged
statements beyond a reasonable doubt.
4. The government did not prove beyond a reasonable doubt that the
alleged statement that the $110,000 was used for home improvement
was made with the purpose of influencing the FDIC in its collection
of the debt.
The final element of a Section 1014 false statement charge is that it must have
been made with the purpose of influencing the FDIC in its collection of the debt. Even
if Mr. Thompson had said that the loan was for “home improvements,” and he did not,
the statement could not possibly have been made for the purpose of influencing
anyone in the collection of the debt. Indeed, the government did not offer a shred of
evidence to show that the alleged use of the funds seven years earlier had anything
to do with anyone’s efforts at collection, nor that Mr. Thompson made the supposed
statement for the purpose of influencing the FDIC. The entire suggestion is illogical.
Whether the loan was used for home improvements or for a buy-in to a law firm was
irrelevant to the FDIC, and none of the three FDIC witnesses offered any proof to the
contrary. Thus, there was neither evidence nor any basis for an inference that the
statement about the use of the loan proceeds in 2011 could have been made for the
purpose of influencing the FDIC in 2018.
C. Judgment of Acquittal is Required on Counts Three Through

Seven
The jury also convicted Mr. Thompson on Counts Three through Seven of filing
false tax returns for tax years 2013-2017 in violation of 26 U.S.C. § 7206. The Court
13
should grant a judgment of acquittal on those counts as well because no rational jury
could have found Mr. Thompson guilty beyond a reasonable doubt on those charges.
There were only three types of evidence admitted against Mr. Thompson on
the tax charges: the tax returns themselves, the tax planners, and the Washington
Federal 1098s (G-1-5, G-28, G-31, G-34, G-38, G-43, G-203-204, G-207-208, G-211-
212, G-215-216, G-219-220, G-229, G-233.) There was no evidence at all that Mr.
Thompson actually read the tax returns or saw the references to Washington Federal
buried many dozens of pages in. There also was no evidence that Mr. Thompson saw
the 1098s reflecting the deductions for mortgage interest paid. That leaves the tax
planners. Despite the government’s argument to the contrary, the tax planners were
actually exculpatory—showing that Mr. Thompson never claimed any credit for
Washington Federal mortgage interest. Taken together with the undisputed evidence
that the accountants never discussed the Washington Federal deductions with him
until December 7, 2018 (Quinn Testimony, Tr. at 389; Hannigan Testimony, Tr. at
708, 730), and that accountant Hannigan actually noticed the discrepancy between
the tax planners and the 1098s and unilaterally decided to put the deduction on the
return (Hannigan Testimony, Tr. at 667-68), no rational jury could have found Mr.
Thompson willfully committed tax fraud beyond a reasonable doubt.
Further undermining the government’s claim was the undisputed evidence
that when Mr. Thompson spoke to Hannigan in December 2018 about the refinance
of his loan, Hannigan revealed the existence of the deductions to Mr. Thompson, and
Mr. Thompson replied, “How did this happen?” (Hannigan Testimony, Tr. at 735,
14
737.) In addition, with respect to the 2017 return, it is undisputed that Mr. Hannigan
put the deduction on the return even though (a) Mr. Thompson put nothing on the
tax planner claiming the deduction and (b) no 1098 was ever issued by the bank,
much less submitted by Mr. Thompson to Hannigan. (Hannigan Testimony, Tr. at
682-83.) Indeed, Mr. Hannigan admitted taking the deduction in 2017 was a mistake
he made. (Id.)
For these reasons, the Court should enter a judgment of acquittal on all the
tax counts, or, at a bare minimum on Count Seven with respect to the 2017 return.
II. IN THE ALTERNATIVE, THE COURT SHOULD ORDER A NEW TRIAL
A. Legal Standard
Federal Rule of Criminal Procedure 33 permits a court to “vacate any judgment
and grant a new trial if the interest of justice so requires.” The decision to grant a
new trial is committed to the sound discretion of the trial judge. United States v.
Williams, 81 F.3d 1434, 1437 (7th Cir. 1996). Courts have interpreted Rule 33 to
require a new trial in a variety of situations in which trial errors or omissions have
jeopardized the defendant’s substantial rights. United States v. Reed, 986 F.2d 191,
192 (7th Cir. 1993); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946).
B. The Verdicts are Against the Manifest Weight of the Evidence
A court may properly consider the credibility of the witnesses and may grant a
new trial if the verdict is so contrary to the weight of the evidence that a new trial is
required in the interest of justice. United States v. Washington, 184 F.3d 653, 657
(7th Cir. 1999); United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001); United
15
States v. Robinson, 303 F.Supp.2d 231, 233 (N.D.N.Y. Jan 22, 2014) (trial court did
not abuse its discretion in granting motion for new trial where government witness’
“dubious testimony [was] exceedingly weak support for a jury’s finding of guilty.”);
United States v. Crittenden, 2022 WL 363857,*2 (5th Cir. 2022). Even where evidence
was properly admitted, in reviewing a motion for a new trial, the court must consider
the weight of the evidence and grant a new trial if that evidence “preponderates
heavily against the verdict, such that it would be a miscarriage of justice to let the
verdict stand.” Id. at 657-658 (quoting United States v. Reed, 875 F.2d 107, 113 (7th
Cir. 1989)); United States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990). The trial court
may act as a thirteenth juror, assessing the credibility of the witnesses and the weight
of the evidence, when considering a motion for a new trial. United States v. Lewis,
521 Fed.Appx. 530, 531 (6th Cir. 2013) (no abuse of discretion in granting new trial
where district court’s determination that key government witness’ testimony was
“significantly undermined” by numerous discrepancies in and between prior
statements and trial testimony, and the lack of corroborating testimony or evidence).
In United States v. Herrera, the Fifth Circuit upheld the district court’s
granting of a new trial. 559 F.3d 296, 302-303 (5th Cir. 2009). In Herrera, the
defendant was convicted of tax evasion. At trial, the government focused on three
alleged acts by the defendant to avoid payment of taxes: (1) money in Herrera’s bank
accounts was transferred to his wife’s accounts; (2) Herrera transferred his home to
his wife’s sole ownership using a quitclaim deed; and (3) Herrera provided inaccurate
information to the IRS during a meeting. The district court held that the evidence did
16
not adequately demonstrate willfulness or a specific intent to avoid paying taxes,
granted defendant’s motion for judgment of acquittal and conditionally granted his
request for a new trial. In upholding the district court’s conditional grant of a new
trial, the Fifth Circuit concluded that “[a]lthough the evidence is sufficient to support
a conviction, the court cautiously reweighed it and found it preponderated heavily
against the guilty verdict.” Id.
Under those principles, Mr. Thompson is entitled to a new trial here. First, the
evidence was insufficient to convict Mr. Thompson of any of the counts beyond a
reasonable doubt for the reasons set forth above. (See Section I.B.1.)
Second, the jury convicted Mr. Thompson on Counts One and Two for making
true statements as explained above. (See Section I.B.2.)
Third, the jury convicted Mr. Thompson on Counts One and Two for making
statements materially different than those charged in the indictment, creating a fatal
variance between the charge and the proof at trial. (See Section I.B.1.)
Fourth, the error on the Communications Log and Holly’s and Newell’s
testimony, which revealed mistakes of memory and errors, was an insufficient basis
on which to convict Mr. Thompson of making the second charged statement during
the March 1, 2018 call relating to the $110,000 loan being used for “home
improvement.” (See Section I.B.1.)
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C. The Government’s Improper Closing Comments Unfairly

Prejudiced Defendant by Misstating the Evidence and
Attempting to Shift the Burden of Proof to the Defense
A motion for new trial may also be granted based on prosecutorial comments
during closing. “When a prosecutor misstates facts in closing remarks or states facts
outside the record in such a way as to prejudice a defendant, a new trial is required.”
United States v. Newman, 490 F.2d 139, 147 (3rd Cir. 1974). Cautionary instructions
will not preclude reversal where the prejudice is substantial. Id. To determine
whether the prosecutor’s comments during closing argument constitute a ground for
new trial, it must be found that (1) the remarks were improper and that (2) the
remarks prejudicially affected the substantial rights of the defendant. United States
v. Freeman, 650 F.3d 673, 683 (7th Cir. 2011); United States v. Thomas, 943 F. Supp.
693, 698 (E.D. Tex. Oct. 22, 1996).
Both the government’s closing argument and rebuttal argument were highly
improper and prejudicial. The theme of the government’s closing was that Mr.
Thompson’s entire conduct from February 23, 2018, when he called the Planet Home
Lending customer service number, through December 7, 2018, when he spoke with
Mr. Hannigan, learned of the Washington Federal deductions, and decided to amend
his tax returns, was part of some premeditated “plan.” (See Gov. Closing, Tr. at 1341,
1368.) The government argued that Mr. Thompson “saw an opportunity to lie, to
deceive, to pay less than what he owed” and he “came up with a plan” when he got a
bill from Planet Home Lending to trick Planet Home Lending and the FDIC (Id. at
1334, 1341, 1347, 1352, 1368, 1370) and then executed that plan by “call[ing] the
18
customer service line with a mission, with a plan” to lie about his loan (Id. at 1347).
The government also argued that Mr. Thompson was “hoping and praying” that
Planet Home Lending and the FDIC would not catch on to his plan and that they
would not learn about the advances. (Id. at 1346, 1350-51, (Mr. Thompson lied so they
wouldn’t “dig deeper”), 1363.) In fact, there was no evidence whatsoever of any “plan”
or “scheme” or that Mr. Thompson was “hoping and praying” not to get caught, and
these comments badly misstated the evidence. The actual evidence—the testimony of
Bill Murray—was that Mr. Thompson called the service line to ask for help in
determining what his loan balance was, not to hatch some plan or trick anyone about
anything. (Murray Testimony, Tr. at 1180.)
Likewise, the government argued that “Mr. Thompson “acted surprised . . .
which was part of the act.” (Gov. Closing, Tr. at 1334, 1351) According to the
government, his act was “to lie until you get caught, and when you get caught, act
surprised, act confused.” (Id. at 1334 (“he pretended to be surprised. He pretended to
be confused”), 1352, 1368.) There was absolutely no evidence supporting these claims
and the government knew it. In fact, the testimony from both Holly and Newell was
that Mr. Thompson was surprised upon being provided with information showing the
full amount he borrowed (Holly Testimony, Tr. at 1011, 1045; Newell Testimony, Tr.
at 1080, 1091.) Neither testified nor offered so much as a suggestion that this surprise
was feigned or insincere, let alone part of some “scheme” or “plan.”
The government continued this same line of improper argument that misstated
the evidence with respect to the tax counts. In particular, the government argued
19
that after being visited by federal agents on December 3, 2018, Mr. Thompson took
“a couple days to hatch a plan” and then executed the plan by speaking with Mr.
Hannigan on December 7, 2018. (Gov. Closing, Tr. at 1368.) Again, there not only was
no evidence of any such plan, but even worse, the government’s argument directly
conflicted with the evidence. Mr. Hannigan testified that Mr. Thompson called with
a question about his re-financing, and that it was he (Mr. Hannigan) that raised the
issue of the deductions, not Mr. Thompson. (Hannigan Testimony, Tr. at 725, 730-
31.)
Ignoring the actual evidence, the government littered its argument with
innuendos about a supposed “plan” that simply had no evidentiary or factual basis.
(See, e.g., Gov. Closing, Tr. at 1334, 1341, 1347, 1352, 1368, 1370.) This was improper
and prejudicial and warrants a new trial.
The government’s closing involved additional arguments that were not
supported by any evidence. For instance, with respect to Count Two, the government
argued: “You heard Mr. Holly and Mr. Newell say that while they were talking to
him, they were talking – they ended up talking about his personal debt. He told them
he borrowed $110,000 and that he didn’t owe that higher amount, that balance of
$269,000.” (Gov. Closing, Tr., pp. 1348). That was simply made up, as explained
above. The evidence showed that no one even mentioned the $269,000 on the call and
that there was no discussion at all about what was owed (as opposed to borrowed).
This sleight of hand was designed to, and had the effect of, misleading the jury about
the proof.
20
The government followed up that argument with an argument that was not
only made up but violated one of the Court’s key rulings in limine issued at the
request of the government. Specifically, the Court barred any testimony about the
attempts to repay the loans, including evidence concerning interactions between the
FDIC and John Mallaber of Planet Home Lending. Nevertheless, and recognizing
that the government’s theory that Mr. Thompson had said the $110,000 was for home
improvements (not his law firm buy-in) had been disproved, the government argued:
At some point also, he acknowledged that that $110,000 was for

his law firm buy in, and you also heard Mr. Newell say that Mr.
Holly and Mr. Newell were not the only people talking to the
defendant. There was another person, John Mallaber, from planet
home who was also talking to him during this time period and it
may have been John Mallaber.
(Gov. Closing, Tr., p. 1351). There was exactly no proof of any discussion between Mr.
Thompson and Mallaber because it was excluded by the Court’s ruling on Govt.
Motion in Limine No. 3. (Dkt. No. 95 at 2-3.) 3
In rebuttal, the government engaged in even more egregious improprieties. For
example, the government intentionally argued that Mr. Thompson was seeking to
place responsibility for conduct that had nothing whatever to do with his public office
on the “voters” in the following exchange:
Mr. Netols: And then, of course, I guess the voters are probably
at fault, too, because by electing him to his public
offices –
Mr. Gair: Your Honor, I object.
The Court: Sustained.
3
Newell volunteered that he “didn’t know” if Thompson had spoken to Mallaber about the purpose of the loan.
(Newell Testimony, Tr. at 1098-99.) That is the opposite of evidence. Initially, his lack of knowledge does not furnish
any basis for an inference that such a conversation occurred. Second, even if it had occurred, it would have been
hearsay.
21
Mr. Netols: He’s talked about his public offices.

The Court: Sustained.
Mr. Netols: He’s overscheduled for all of these reasons. It’s all –
it’s everyone else’s fault.
(Gov. Rebuttal, Tr. at 1419.) The prejudice to Mr. Thompson from these improper
comments is manifest: the government improperly sought to tie Mr. Thompson’s
position as alderman to charges that had nothing whatsoever to do with his public
office and urged to jury to use this as a basis to convict him of wholly unrelated crimes.
None of that is remotely proper. The Court sustaining the defense objection is not
enough.
The government’s rebuttal also improperly invited the jury to disregard
evidence that had been admitted, arguing that the defense had “injected evidence
that’s not relevant and arguments that aren’t relevant.” (Id. at 1409-10, 1421.) Of
course, the Court, not the government, is the arbiter of what evidence was or was not
relevant, and the fact that certain evidence was admitted necessarily means the
Court deemed it to be relevant (or that the government did not object on relevance
grounds at the time). In either event, its having been admitted, the government was
not free to urge the jury to just ignore relevant evidence and doing so was highly
improper and prejudicial.
Finally, the government doubled down on its efforts to urge the jury to ignore
the evidence and subvert the burden of proof, arguing:
[the defense] never tied any of this overscheduling to any event in

this case. They never said, gee, look at the date on which he signed
this loan applications and at that point he was involved in this
big matter with his firm or he was traveling or he wasn’t
concentrating.
22
(Id. at 1420.) The Court overruled the defense objection. (Id.) So the government
continued its improper comments:
[the defense] did not tie anything up. When he signed his tax
returns, there’s no evidence to say at the time he did that, he was
in a committee hearing. At the time he did any of this stuff. At
the time he filled out the tax organizers, he was too busy because
he was in the middle of his big engagement for work. He never
ties it up--
(Id.) Those arguments and the government’s criticism of the defense’s supposed
failure to introduce certain types of evidence improperly shifted the burden of proof.
United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998). The Court’s failure
to sustain the defense objection was error and allowed the jury to consider the fact
that Mr. Thompson did not present certain evidence when he was not required to
present any evidence at all. These comments substantially prejudiced Mr. Thompson
and warrant a new trial.
D. The Court Erred in Certain Evidentiary Rulings
Courts have also held that the improper admission or exclusion of evidence can
be grounds for a new trial. See United States v. Smith, 520 F.2d 1245, 1247 (8th Cir.
1975) (in drug prosecution, wife’s statement that husband placed drugs on her was
not admissible as declaration of coconspirator, and admission of such evidence was
prejudicial error requiring a new trial); United States v. Yow, 465 F.2d 1328, 1331-
132 (8th Cir. 1972) (admission of hearsay testimony, lack of an otherwise strong case
by the government, and contradictory testimony were grounds for a new trial); United
States v. Greschner, 647 F.2d 740, 743 (7th Cir. 1981) (excluded evidence relating to
23
defendant’s self-defense theory warranted new trial); United States v. Tony, 948 F.3d
1259, (10th Cir. 2020) (same).
1. The Court erred in excluding Defense evidence pertaining to

Defendant’s efforts to repay and ultimate repayment of the
Washington Federal loan.
The Court erred in its ruling on Defense Motion in Limine No. 11 and by
excluding defense exhibits DX 17 – DX 46, DX 48 – DX 51, DX 53 – DX 55, DX 57, DX
59, DX 65 – DX 69, DX 71, DX 76 in its entirety, and DX 82 – DX 83. The Court should
have allowed the defense to present evidence of Mr. Thompson’s post-March 1, 2018
conduct cooperating with the FDIC and Planet Home Lending and paying back the
principal balance of the Washington Federal Loan, including the proffered testimony
of John Mallaber. (Offer of Proof, Tr. at 860-62.) That evidence was relevant to Mr.
Thompson’s mental state when he made the statements and his supposed “purpose”
of influencing Planet Home Lending and the FDIC in collection of the loan (Dkt. 38,
§ XI; Dkt. 44, § III; Dkt. 49, § XI.) Indeed, at trial there was some evidence that
discussions of re-financing the Washington Federal loan occurred throughout 2018.
(Hannigan Testimony, Tr. at 725-29.) However, without the evidence that Mr.
Thompson 1) was cooperative with Planet Home Lending in its efforts to collect the
loan and 2) ended up actually paying back the full principal balance, the passing
reference to efforts to re-finance compounded the problem and created the false and
prejudicial impression that he did not pay back the loan.
2. The Court erred in admitting certain government exhibits

showing the loan balance.
The Court admitted G-57, G-59 - G-61, G-73, and G-139 over the defense’s
24
hearsay objections that they did not qualify under the business-records exception,
holding that the documents were not being offered for the truth of the matter asserted
but rather to show Defendant’s knowledge. (See Dkt. No 114.) But the evidence was
offered for the truth of the matter asserted. In particular, the government introduced
the documents to show what the loan balance was and that defendant saw that
information and maintained the documents in his files, and thus that he knew what
the balance was when he spoke with Planet Home Lending and the FDIC years later.
This was all expressly argued by the government during its closing argument. (Gov.
Closing, Tr. at 1338-39, 1344-45.) Thus, these documents and the hearsay assertions
they contained were improperly admitted for the truth of the matters asserted and
used as substantive evidence regarding the amount of the loan balance. This was
error and warrants a new trial.
E. The Court erred in failing to give the defendant’s good faith jury
instruction
The Court also erred in failing to give Defendant’s good faith instruction
relating to the tax charges. (See Dkt. 135.) The good faith instruction would have
instructed the jury that if defendant actually believed that what he was doing was in
accord with the tax laws, then he did not willfully make a false statement on a tax
return. It was error not to provide this instruction to the jury and a new trial is
warranted.
25
Dated: March 15, 2022 Respectfully submitted,
____/s/ Chris Gair______________

Chris Gair (cgair@gairlawgroup.com)
Jeff Eberhard (jeberhard@gairlawgroup.com)
Carly Chocron (cchocron@gairlawgroup.com)
Gair Eberhard Nelson Dedinas, Ltd.
1 East Wacker Drive, Suite 2600
Chicago, Illinois 60601
(312) 600-4900
26
CERTIFICATE OF SERVICE
The undersigned certifies that on March 15, 2022, he caused a copy of the foregoing
document to be filed via this Court’s CM/ECF system which will provide service on all Parties of
record.
/s/ Chris Gair

Chris Gair
27

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Case: 1:21-cr-00279 Document #: 152 Filed: 03/15/22 Page 1 of 3 PageID #:3179

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, )

DEFENDANT’S UNOPPOSED MOTION FOR LEAVE TO FILE POST-

trial in excess of 15 pages, for the reasons set forth below:

a New Trial, which is attached hereto as Exhibit 1.

government does not object to this motion.

Dated: March 15, 2022 Respectfully submitted,

/s/ Carly Chocron

/s/ Carly Chocron

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, )

DEFENDANT’S POST-TRIAL MOTION FOR JUDGMENT OF

Defendant Patrick Thompson, by undersigned counsel, respectfully moves the

Court to enter a judgment of acquittal pursuant to Federal Rule of Criminal

I. MOTION FOR JUDGMENT OF ACQUITTAL ON ALL COUNTS

evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29 (emphasis added).

A “Rule 29 judgment of acquittal is a substantive determination that the prosecution

804, 812 (N.D. Ill. May 31, 1978).

B. Judgment of Acquittal is Required on Counts One and Two

To convict defendant on these counts, the government was required to prove

1) The defendant made a charged false statement to Planet Home Lending/the

of the Federal Deposit Insurance Corporation/a financial institution in

“I borrowed $100,000,” which he later corrected to $110,000. (DX 11 and G-189 at

statement about borrowing $110,000 is not tantamount to a statement about what he

owed (or did not owe).

amount” as charged. Rather, he simply disputed that he borrowed a specific amount,

It was in fact the case that he disputed the balance of $269,000.

communication log. (G-191.) The communication log states:

that they were never even made.

Thompson’s Fifth Amendment rights by constructively amending the indictment and

the evidence constitutes a reversible, constructive amendment, and not merely a

variance requiring judgment of acquittal).

Testimony, Tr. at 1096-98), and none of the government’s hundreds of exhibits

improvements. 1 In short, the second false statement was never made.

2. The government did not prove beyond a reasonable doubt that

a. Proof of literal falsity is required for conviction under

A conviction for false statements cannot be sustained where, as here, the

cannot be extended to criminalize false implications. In Bronston, the defendant was

charged for the following exchange:

Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?

government argued that a person writing a check is generally understood to represent

explicitly reach the conduct in question, we are reluctant to base an expansive

reading on inferences drawn from subjective and variable ‘understandings’.” Id. at

requires a literally false statement and cannot rest on mere implied

misrepresentations, material omissions, or half-truths. “Until Congress opts to

extend § 1014 to material omissions, implied misrepresentations, or fraud—all ways

required to be disclosed in the documents.” Id. at 1071. 2 Importantly, Swanquist does

the time the case was decided.

Moreover, it is clear that Swanquist’s loan applications were literally false.

Such applications uniformly require a borrower to disclose all debts. When a

false statement about the amount of his debts.

misrepresentations” were deemed to be false statements. However, the cases cited in

expressly-requested information on loan applications or similar forms and thus

Supreme Court’s decisions in Bronston and Williams.

Accordingly, all of the pertinent authority, including binding decisions by the

true statements, even if they are misleading or omit material information.

b. Mr. Thompson’s statements to both Planet Home

3. The government did not prove beyond a reasonable doubt that

As demonstrated above, Mr. Thompson never made the alleged statements

that way.” (Holly Testimony, Tr. at 1050-51.)

figure, as demonstrated by the question mark he placed on the back of an envelope:

information about owing $249,000 or some higher amount.

statements beyond a reasonable doubt.

/s/ Chris Gair__________