Perjury.

• Author: Shifer, Joseph A.
• Position: Twenty-First Annual Survey of White Collar Crime

1. INTRODUCTION A. Section 1621: False Testimony Generally B. Section 1623: False Testimony to Court or Grand Jury C. Section 1622: Subornation of Perjury II. ELEMENTS OF THE OFFENSE A. Oath B. Intent 1. Section 1621: Willfulness and Knowledge of Falsity 2. Section 1623: Knowledge of Falsity C. Falsity D. Materiality E. Key Distinctions between [section] 1621 and [section] 1623 1. Two-Witness Rule 2. Use of False Material 3. Inconsistent Declarations III. DEFENSES A. Recantation 1. Section 1621 2. Section 1623 B. Assistance of Counsel C. Double Jeopardy D. Perjury Trap E. Fifth Amendment IV. SENTENCING I. INTRODUCTION

   Truthful testimony is essential to the administration of justice and the functional capacity of every branch of government. Because every branch and level of government relies upon sworn testimony, the integrity of governmental processes depends in large part on the truthfulness of statements made under oath. (1) In an effort to free courts of the "pollution of perjury," (2) by deterring and punishing false testimony, (3) Congress enacted 18 U.S.C. [subsection] 1621, (4) 1622, (5) and 1623 (6).

   1. Section 1621: False Testimony Generally

      Section 1621, (7) the broadest of the three federal perjury statutes, applies to all material statements or information provided under oath to "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered" (8) and has withstood constitutional challenges for vagueness. (9) Courts have applied [section] 1621 in a variety of situations that fall under the broad purview of the statute. (10)

      Section 1621 applies to any false statement made under a properly administered oath "before a competent tribunal, officer, or person." (11) Courts have construed this phrase widely and have applied [section] 1621 in a broad range of situations, with limitations existing as to what constitutes an "incompetent" tribunal, officer, or person. (12) A grand jury that has exceeded its term or has undertaken an investigation outside its powers is not a competent body for the purposes of [section] 1621. (13) Similarly, a legislative committee is not a competent tribunal if it acts outside a legitimate legislative purpose (14) or if it lacks a quorum. (15) However, the competency of a tribunal is not compromised for purposes of [section] 1621 because it lacks diversity or subject matter jurisdiction. (16) Nor is a tribunal incompetent because the statutory offense that formed the basis of the proceeding was imperfectly pleaded, (17) based on a defective indictment, (18) or later found to be unconstitutional. (19)

   2. Section 1623: False Testimony to Court or Grand Jury

      Congress enacted [section] 1623 (20) to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." (21) The statute is operative only with regard to statements or information provided under oath "in any proceeding before or ancillary to any court or grand jury of the United States." (22) This language limits the operation of the statute to testimony actually submitted in the presence of the court or grand jury or in the course of a deposition pursuant to valid rules of procedure. (23) The statute applies without restriction to the broad range of proceedings that fall within this category. (24) Additionally, federal courts have upheld the constitutionality of [section] 1623, even though some of its provisions depart from the common law rules regarding perjury prosecutions. (25)

   3. Section 1622: Subornation of Perjury

      Section 1622 (26) prohibits convincing another to commit "any perjury," whether under [section] 1621 or [section] 1623, (27) though the elements the government must prove will vary depending on whether [section] 1621 or [section] 1623 underlies the [section] 1622 prosecution. (28)

      To be convicted of subornation of perjury, one must have persuaded a witness to perjure herself, (29) and that witness actually committed perjury. (30) It is not necessary, however, that the defendant threaten the witness with any physical harm for the defendant to be guilty of subornation. (31) Like [section] 1623, [section] 1622 only requires that the defendant know the testimony by the witness will be false. (32)

2. ELEMENTS OF THE OFFENSE

   The elements of perjury and subornation of perjury are (i) oath; (ii) intent; (iii) falsity; and (iv) materiality. To secure a conviction under [section] 1621, the government must prove that the defendant took an oath authorized by a law of the United States before a competent tribunal, officer, or person and, while under such oath, willfully and knowingly made a false statement as to material facts. (33) A conviction under [section] 1623 requires proof that the defendant, while under oath in a proceeding before or ancillary to a court or grand jury of the United States, knowingly made a false statement as to material facts or used any item she knew to contain a false material statement. (34)

   1. Oath

      Sections 1621 and 1623 require evidence that the defendant was under oath when the defendant submitted the false testimony or information. (35) The oath need not take any particular form under [section] 1621. (36) For [section] 1621, the oath requirement is easily satisfied, even where the authority to administer an oath is derived from an administrative rule or regulation. (37) However, an oath having no authoritative basis may not support a conviction for perjury. (38) Courts differ as to the form requirements under [section] 1623. (39)

   2. Intent

1. Section 1621: Willfulness or Knowledge of Falsity

   Section 1621 applies only to testimony the defendant willfully stated or to which the defendant subscribed with knowledge of its falsity. (40) Therefore, to convict under [section] 1621, the government must prove willfulness (41) or knowledge (42) beyond a reasonable doubt.

   The element of intent for [section] 1621 is not satisfied by false testimony provided as a result of confusion, mistake, faulty memory, (43) or inconsequential inconsistencies or conflicts in a witness' testimony. (44)

   2. Section 1623: Knowledge of Falsity

      Unlike [section] 1621, [section] 1623 is not limited to willfully submitted false testimony. (45) Section 1623 merely requires that the defendant made a statement that she knew to be false at the time she made it. (46) The government can meet this burden using circumstantial or direct evidence. (47) A jury may gauge the intentions of false testimony by surrounding circumstances (48) or infer that a defendant knew her testimony to be false from the disproof of that testimony alone. (49) However, proving knowledge of falsity is difficult if questioning by a prosecutor was ambiguous. (50)

      3. Falsity

         A declaration or statement must be false to constitute perjury under [section] 1621, (51) [section] 1622, (52) or [section] 1623. (53) The general principles governing a falsity inquiry are the same under all three sections. (54) In the past the falsity of the underlying testimony had to be proven by direct evidence, (55) but more recently courts have held that compelling circumstantial evidence can suffice where falsity cannot be proven directly. (56) Wherever doubt remains as to the falsity of the testimony under review, the issue must be decided against the government. (57) An answer may still be perjurious even if it is susceptible to various interpretations if taken out of context (58) or was prefaced by a qualifying phrase, such as "I believe." (59)

         In Bronston v. United States, (60) the Supreme Court held that, in the course of a cross-examination, a misleading but literally true answer could not provide the basis for a prosecution under [section] 1621. (61) If no false statement has been made, even the alleged intent of the witness to mislead by evasion or non-response is irrelevant. (62) Fancy footwork in crafting a response may preclude actionable perjury if there is literal truth in the answer, such as in the Eleventh Circuit case of United States v. Shotts (63) where a perjury conviction was reversed based on defendant's statement he did not "own" a corporation with which he was associated, because under Alabama law a corporation is "owned" by its shareholders. (64) In cases such as this, the Court in Bronston reasoned that if a witness punts the question, "it is the lawyer's responsibility ... to bring the witness back to the mark, to flush out the whole truth with the tools of adversarial examination." (65)

         Hence, it is incumbent on the prosecutor to fashion unambiguous questions. (66) Courts have held that a fundamentally ambiguous question cannot be the basis of a perjury conviction. (67) Though there has been some confusion over what constitutes a fundamental ambiguity, (68) courts have rejected that a question was fundamentally ambiguous where "men of ordinary intelligence" could mutually understand the meaning of a question based on the context and circumstances in which it was asked. (69)

         An important difference between [section] 1621 and [section] 1623 concerns inconsistent statements. The government must prove a defendant's testimony was false to support a conviction under [section] 1621 (70) or [section] 1623(a). (71) However, a conviction under [section] 1623(c) requires only proof of irreconcilable inconsistency, not falsity. (72) To satisfy this element of [section] 1623(c), the government must prove that the inconsistent statements are irreconcilable, (73) but it need not show which of the statements was actually false. (74)

      4. Materiality

         A false statement must be material to be actionable under [section] 1621, [section] 1622, or [section] 1623. (75) The burden of proving materiality rests on the prosecution. (76) Testimony is material if it has "a natural tendency to influence" or is "capable of influencing" the tribunal to which it is addressed. (77) When evaluating materiality, courts consider the venue in which the false...