Statutes proscribing only false statements require there to be an affirmative false statement. Omissions will not cut it. "'False' and 'fraudulent' representations do not cover the same thing." And while "fraudulent" representations cover both affirmatively false statements and omissions, "false" representations cover only the former.
In a recent decision by the United States Court of Appeals for the Sixth Circuit, the Court found that 18 USC § 1014, which proscribes false statements in regard to certain loan and credit applications (in this case, mortgage applications), requires the government to prove that the defendant made an "'factual assertion' capable of confirmation or contradiction." But the District Court instructed the jury that a "half-truth was sufficient if it conceals a material fact." Reversing, the Court of Appeals explained that an omission, the "silent part of a half-truth, is not an assertion." Without such an assertion, there could be no conviction.
Ultimately, this case turned on the erroneous jury instruction. The Sixth Circuit acknowledged that the defendantmight have made a false statement, but because the jury instruction permitted the jury to convict without finding a false "factual assertion" a retrial was necessary.
The case referenced and quoted from above is United States v. Kurlemann, 11-3394 (6th Cir. February 13, 2013).
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