In the Courts

Seventh Circuit Distinguishes Between Truth and Truthiness

True or false? This question we learn as children presents a simple binary,, but the distinction is rarely that simple. From the President's “alternative facts” to Stephen Colbert's “truthiness” – there remains a spectrum between literal truths to technical truths that nevertheless ring false in certain lights. Recently, the Seventh Circuit explored the distinction between actual truth and technical truths in the case of United States v. Batmagnai Chogsom and held that the line between truth and falsehood may lie in the mind of the utterer.

At a first glance, Chogsom is a relatively unremarkable prosecution of two individuals for the exporting stolen vehicles and engaging in a scheme to structure financial transactions in a manner that would elude federal financial reporting requirements. Initially, after a six day jury trial involving twenty nine witnesses, a federal jury convicted Mr. Nikolay Tantchev of a series of charges relating to the stolen cars and using false documents in connection with the financial scheme. The same jury acquitted his associate, Mr. Batmagnai Chogsom of these charges but convicted him of making a false statement to an IRS agent and sentenced him to three years of probation. Mr. Chogsom appealed his conviction.

Tantchev and Chogsom had been working at a warehouse owned by Tantchev in Chicago. In the course of this business, Tantchev's warehouse accepting shipping containers with imports and exports, until it was discovered that some shipments contained stolen vehicles. Subsequent investigation uncovered that the majority of the proceeds from these shipments were then funneled into 22 different bank accounts across Bulgaria, in a financial scheme designed to escape notice. In the course of the investigation into these accounts, an IRS agent had approached Mr. Chogsom and asked him to identify a woman linked to one of the bank accounts. After being presented with an ID photo of the woman in question, Mr. Chogsom informed the authorities that the ID belonged to a “Jianmei Li”, when, in actuality, the ID belonged to Mr. Chogsom's sister — Burmaa Chogsom.

In his appeal, Mr. Chogsom maintained that the statement he gave was not false — his sister had routinely used the alias Jianmei Li while living in the United States, prior to her return to Mongolia. He argued that his answer, while distinct from the answer sought by the IRS, was not technically false. A rose by another name, if you will, does not a perjury conviction make.

The Seventh Circuit disagreed. Despite noting that sometimes, ambiguous questions may have multiple “true” answers, the court looked past the question asked to Mr. Chogsom's understanding of the question. The decision adds an interesting layer to the court's treatment of technically true statements that nevertheless may conceal information. Previously, the court had ruled that the burden rests on the questioner to craft his or her questions precisely, and to continue asking if the answers elude the question's true purpose. However, this decision adds nuance and looks to the understanding of the answerer. Finding that Mr. Chogsom knew why the investigation was taking place and understood the true meaning of the question, he would have known that the IRS agent was seeking the actual name of Mr. Chogsom's sister. In light of this understanding, Mr. Chogsom's reply with her alias was a falsification — despite the answer having some technical truth to it. Accordingly, the Seventh Circuit affirmed the conviction.

While the ruling does not lift the pressure on investigators to probe the contours of the answers given to them, the ruling clarifies that intentional exploitation of ambiguous questioning will no longer be a refuge for the accused.

— Surya Kundu, Mayer Brown