Perjury.

• Author: Harrington, Matthew
• Position: Thirtieth 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][section] 1621 and 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

   Perjury can subvert the fair administration of justice and the proper function 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) To free courts of the "pollution of perjury" (2) by deterring and punishing false testimony, (3) Congress has enacted three statutes criminalizing perjury: (4) 18 U.S.C. [section][section] 1621, which is the general perjury statute; (5) 1622, which criminalizes the subornation of perjury; (6) and 1623, which relates to perjury before a grand jury. (7) In several of the past century's most famous criminal cases, the government has successfully pursued a conviction for perjury rather than for the crime that gained the defendant notoriety. (8) However, the government sometimes failed to obtain a conviction. (9) The remainder of this Section provides an overview of the three offenses. Section II discusses the elements of [section][section] 1621 and 1623. Section III discusses defenses. Section IV discusses sentencing.

   1. Section 1621: False Testimony Generally

      Section 1621, 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." (10) Section 1621 has withstood constitutional challenges for vagueness (11) despite covering a wide variety of situations. (12)

      Courts have construed "competent tribunal, officer, or person" (13) to allow for prosecution under [section] 1621 in a wide range of situations so long as the entity is acting within its legal authority. (14) For example, a grand jury acting within its jurisdiction is a competent tribunal for purposes of [section] 1621, (15) but one that has exceeded its term or undertaken an investigation outside of its powers is not. (16) Similarly, a congressional committee is a competent tribunal (17) unless it acts outside of a legitimate legislative purpose (18) or lacks a quorum. (19) However, the competency of a tribunal is not compromised for purposes of [section] 1621 because it lacks subject matter jurisdiction. (20) Nor is a tribunal incompetent because the statutory offense that formed the basis of the proceeding was imperfectly pleaded, (21) based on a defective indictment, (22) or later found to be unconstitutional. (23)

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

      Congress enacted [section] 1623 to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." (24) The statute is operative 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." (25) The statute applies to testimony submitted in the presence of the court or grand jury and testimony submitted in the course of a deposition pursuant to valid rules of procedure, (26) as well as a broad range of other proceedings. (27) Federal courts have upheld the constitutionality of [section] 1623 despite the fact that some of its provisions depart from the common law rules for perjury prosecutions in a particular jurisdiction. (28)

   3. Section 1622: Subornation of Perjury

      Section 1622 prohibits convincing another to commit "any perjury," which includes perjury under either [section][section] 1621 or 1623. (29) To secure a conviction for subornation of perjury, the government must prove three elements: (i) the defendant must have induced or persuaded a witness to perjure himself, (30) (ii) that witness must actually have committed perjury, (31) and (iii) the defendant must have known the witness's testimony would be false. (32) To meet the first element, the defendant need not threaten the witness with physical harm. (33) What must be proven for the second element depends on whether the defendant is charged with suborning perjury under [section] 1621 or [section] 1623, (34) the elements of which are discussed in the next section.

2. ELEMENTS OF THE OFFENSE

   The elements of perjury, common to both [section][section] 1621 and 1623, are: (i) oath, (ii) intent, (iii) falsity, and (iv) materiality. (35) Two relevant distinctions between [section][section] 1621 and 1623 are: (i) the setting in which the perjury is committed and (ii) the range of conduct that qualifies as perjury. 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, (36) and, importantly, that the defendant both willfully and knowingly made a false statement about material facts while under oath. (37) A conviction under [section] 1623 only requires proof that the defendant knowingly, while under oath in a proceeding before or ancillary to a court or grand jury of the United States, made a false statement as to material facts or used any item he knew to contain a false material statement. (38)

   1. Oath

      Sections 1621 and 1623 both require evidence that the defendant was under oath when he gave false testimony or submitted false information. (39) Under [section] 1621, the oath need not take any particular form. (40) Furthermore, the [section] 1621 oath requirement is easily satisfied even where the authority to administer an oath is derived from an administrative rule or regulation. (41) However, an oath having no authoritative basis may not support a conviction for perjury. (42) When determining whether an oath was appropriate under [section] 1623, the Supreme Court held that Congress did not intend for [section] 1623 to be as broad as [section] 1621 (43) and therefore [section] 1623 cannot encompass statements made in "contexts less formal than a deposition." (44) Lower courts have interpreted the formality requirements under [section] 1623 differently. (45)

   2. Intent

      1. Section 1621: Willfulness and Knowledge of Falsity

         The essence of the crime of perjury is willful untruth, made while under oath, in a material statement. (46) Section 1621 applies only to testimony the defendant willfully stated or to which the defendant subscribed with knowledge of its falsity. (47) Therefore, to convict under [section] 1621, the government must prove beyond a reasonable doubt the speaker had a willful intent (48) and that the speaker knew the testimony was false. (49) The intent element for [section] 1621 is not satisfied by false testimony provided as a result of confusion, mistake, faulty memory, (50) or inconsequential inconsistencies or conflicts in a witness's testimony. (51) A defendant presents "willful intent" when the defendant does not testify truthfully or when the testimony is "strained" in relation to material facts about which the defendant has already confessed. (52) The court must make a specific finding as to the existence of "willful intent" and cannot simply assert that this element has been satisfied with no further explanation. (53) Furthermore, for purposes of sentencing guidelines' base offense level enhancement for willful obstruction of justice, "willful" means the misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway. (54)

      2. Section 1623: Knowledge of Falsity

         Unlike [section] 1621, [section] 1623 is not limited to willfully submitted false testimony. (55) Section 1623 merely requires that the defendant made a statement that she knew to be false at the time she made it. (56) The government can meet this burden using either circumstantial or direct evidence. (57) A jury may gauge the intentions of false testimony by the surrounding circumstances (58) or infer that a defendant knew her testimony to be false from the disproof of that testimony alone. (59) However, proving knowledge of falsity is difficult if a prosecutor's

         questions were ambiguous. (60) For example, in United States v. Farmer, the prosecutor asked the defendant, "Have you talked to Mr. McMahon about your testimony here today?" (61) The Defendant assumed the prosecutor was asking about that specific day rather than at any point, and answered accordingly. The Tenth Circuit held that the defendant could not be found guilty of perjury because the question had arguably two meanings and, therefore, reversed the defendant's perjury conviction. (62)

   3. Falsity

      A declaration or statement must be false to constitute perjury under [section] 1621, (63) [section] 1622, (64) or [section] 162. (65) The determination as to whether the defendant believed, at the time he delivered it, that his testimony was untruthful is made by the jury. (66) The general principles governing the falsity inquiry are the same under all three sections. (67) In the past, the falsity of the underlying testimony had to be proven by direct evidence, (68) but the growing trend is for courts to hold that compelling circumstantial evidence can suffice where falsity cannot be proven directly. (69) Wherever doubt remains as to the falsity of the testimony under review, the issue should be decided against the government. (70) A statement may still be perjurious even if it is susceptible to various interpretations if taken out of context (71) or was prefaced...