Perjury.

• Author: Saad, Angel
• Position: Twelfth Survey of White Collar Crime

1. INTRODUCTION

   1. False Testimony Generally: 18 U.S.C. [sections] 1621

   2. False Testimony to Court or Grand Jury: 18 U.S. C. [sections] 1623

   3. Comparison of 18 U.S.C. [sections] 1621 and 18 U.S.C. [sections] 1623:

      Key Distinctions

      1. Two-Witness Rule

      2. Recantation

      3. Use of False Material

      4. Inconsistent Declarations II. ELEMENTS OF THE OFFENSE

   1. Oath

   2. Scope

      1. Section 1621: Competent Tribunal, Officer, or Person.

      2. Section 1623: Court or Grand Jury

   3. Intent

      1. Section 1621: Willfulness and Knowledge of Falsity

      2. Section 1623: Knowledge of Falsity

   4. Falsity

   5. Materiality. III. DEFENSES

   1. Recantation

      1. Section 1621

      2. Section 1623

   2. Assistance of Counsel

   3. Double Jeopardy

   4. Perjury Trap

   5. Fifth Amendment IV. SENTENCING

1. INTRODUCTION

   Sworn testimony is regarded as valuable evidence upon which important judicial, legislative, administrative, and other governmental decisions are made. Consequently, the integrity of our government depends in large part on the veracity of people who provide information while under oath.(1) Congressional concern for the consequences of perjury is expressed in Sections 1621(2) and 1623(3) of Title 18, which were enacted to punish and deter false testimony.(4) This article initially provides an overview of the two statutes and describes key distinctions between them. The elements of each offense and available defenses, as well as sentencing under the statutes are also examined.

   1. False Testimony Generally: 18 U.S.C. [sections] 1621

      Section 1621, the broader of the two perjury statutes dealt with in this article, 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."(5) The statute has withstood constitutional vagueness challenges regarding the breadth of its scope,(6) and courts have applied [sections] 1621 in a variety of diverse situations.(7)

   2. False Testimony to Court or Grand Jury: 18 U.S.C. [sections] 1623

      Section 1623, the more recent of the two perjury statutes dealt with in this article, was enacted to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries."(8) Its operation is expressly limited to statements or information provided under oath "in any proceeding before or ancillary to any court or grand jury of the United States."(9) Within these bounds, however, the statute operates without restriction.(10) The express modification of certain procedural and substantive rules historically applicable to perjury prosecutions has not impinged upon the constitutionality of [sections] 1623.(11)

   3. Comparison of 18 U.S.C. [sections] 1621 and 18 U.S.C. [sections] 1623: Key Distinctions

      Sections 1621 and 1623 both extend to ordinary judicial proceedings.(12) Consequently, false testimony may be simultaneously actionable under both statutes. In such cases, defendants have argued that prosecution under [sections] 1621 is improper, as [sections] 1623 was specifically enacted for use on occasions where the perjury is committed during "a proceeding before or ancillary to any court or grand jury of the United States."(13) Others have suggested that in these circumstances, selective prosecution under [sections] 1623 would be inconsistent with the constitutional guarantee of equal protection, given that a violation of [sections] 1621 is often more difficult to prove.(14)

      Although the courts have not been uniformly hostile to these arguments,(15) the general understanding appears to be that [sections] 1623 serves to supplement, rather than supplant, [sections] 1621. Where criminal statutes overlap, it is a well settled rule that "the government is entitled to choose among them provided it does not discriminate against any class of defendants."(16) Accordingly, when perjury falls under both statutes, the government may choose to charge a defendant under either one. Such a rule is consistent with the absence of preemptive language in either statute. Moreover, it has been suggested that such a rule is consistent with Congressional intent expressed in the legislative history of [sections] 1623.(17)

      Aside from the different forums in which the statutes operate, there are significant substantive differences between [sections] 1621 and 1623. While the individual elements of violations of the statutes are further examined later in this article, this section identifies and examines the more important distinctions between the two provisions, including the application of the "two-witness rule," the effect of recantation, the use of false materials, and the effect of inconsistent declarations.

      1. Two-Witness Rule

         The type of proof acceptable for a conviction under [sections] 1621 differs from that under [sections] 1623. A perjury conviction at common law could not be sustained solely upon the testimony of a single witness.(18) While this evidentiary limitation is commonly referred to as the "two-witness rule," the testimony of only one witness in conjunction with corroborating evidence, is sufficient to satisfy its requirements.(19) The "two-witness" rule has survived repeated challenges on the grounds that it is anachronistic and unduly burdensome.(20) The two-witness rule has been judicially incorporated into perjury prosecutions under [sections] 1621.(21)

         Section 1623, on the other hand, expressly provides that "[p]roof beyond a reasonable doubt ... is sufficient for conviction" and that "[i]t shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence."(22) The obvious purpose of this language, to prevent the application of "two-witness" rule in [sections] 1623 prosecutions,(23) has been respected by the courts.(24)

      2. Recantation

         Sections 1621 and 1623 also differ in the effect of a recantation of false testimony by a witness on his or her prosecution. Under [sections] 1621, a witness' attempts to repudiate, correct, or otherwise cure the effect of false testimony do not insulate him from prosecution for perjury.(25)

         Section 1623, on the other hand, provides insulation from prosecution for perjury in instances of recantation where certain conditions regarding the effect of the false statement on the proceeding and the timeliness of the recantion are met.(26) The purpose of this provision is "to induce the witness to give truthful testimony in judicial proceedings by permitting him to voluntarily correct a false statement without incurring risk of prosecution by doing so."(27)

      3. Use of False Material

         While [sections] 1621 is the broader of the two statutes in regards to the range of proceedings where it applies, the opposite is true regarding the range of conduct condemned. Under [sections] 1621, a person is guilty of perjury only when, having taken the proper oath, he "states or subscribes any material matter which he does not believe to be true."(28) By contrast, a violation of [sections] 1623 occurs whenever a witness, while under oath, knowingly makes any false declaration "or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration."(29) Although it is infrequently invoked, the "make or use" provision of [sections] 1623 has been broadly construed.(30)

      4. Inconsistent Declarations

         When a witness submits two or more absolutely irreconcilable declarations while under oath, he has necessarily perjured himself at least once. However, this unassailable logic is of no avail to the government under [sections] 1621, as it must individually establish the falsity of at least one declaration before a conviction can be obtained.(31) To correct this perceived defect in the law of perjury, Congress enacted [sections] 1623(c), which provides that

         "the falsity of a declaration set forth in the indictment or information

         shall be established sufficient for conviction by proof that the defendant

         while under oath has knowingly made irreconcilably contradictory

         declarations material to the point in question."(32)

         When viewed in conjunction with the inapplicability of the two-witness rule in [sections] 1623 prosecutions, this important evidentiary modification provides strong support for the claim that a primary congressional purpose of [sections] 1623 was to facilitate the prosecution of perjury.(33)

2. ELEMENTS OF THE OFFENSE

   To secure a conviction under [sections] 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.(34) By contrast, a conviction under [sections] 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 made or used any material that she knew to contain a false material statement.(35)

   As the elements of [subsections] 1621 and 1623 are substantially similar they will be examined together. Variations between the two statutes will be noted where appropriate.

   1. Oath

      Sections 1621 and 1623 both require proof that the allegedly false testimony or information was submitted while the defendant was under an oath to speak truthfully.(36) Although the oath need not take any particular form,(37) it must be administered by a person or body legally authorized to do so.(38) A survey of the cases suggests that this requirement is easily satisfied, even where the authority to administer an oath is derived from an administrative rule or regulation as opposed to an Act of Congress.(39) However, this does not mean that an oath having no statutory basis whatsoever could support a conviction for perjury.(40)

   2. Scope

      1. Section 1621: Competent Tribunal, Officer, or Person

         Section 1621...