Perjury.

AuthorKislak, Rebecca
PositionFourteenth Survey of White Collar Crime
  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 truthfulness of people who provide information while under oath.(1) Congressional concern regarding the consequences of perjury is expressed in [subsections] 1621,(2) 1622,(3) and 1623(4) of Title 18, which were enacted to punish and deter false testimony.(5) Section I of this Article provides an overview of the three perjury statutes and analyzes key distinctions between them, by discussing each statute independently and evaluating the differences between [sections] 1621 and [sections] 1623. Section II sets out the elements for violations of perjury and subornation of perjury; Section III delineates the available defenses to alleged perjury violations; and Section IV discusses the sentencing requirements for violations of the statutes.

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

      Section 1621,(6) the broadest of the three 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."(7) The statute has withstood constitutional challenges for vagueness regarding the breadth of its scope.(8) Courts have applied [sections] 1621 in a variety of situations that fall under the broad purview of the statute.(9)

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

      Section 1623,(10) the second of the three perjury statutes, was enacted as Title IV of the Organized Crime Control Act of 1970, to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries."(11) 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."(12) The statute applies without restriction to the broad range of proceedings that fall within these limitations.(13) Additionally, the constitutionality of [sections] 1623 has been upheld, even though some of its provisions are an express departure from the common law understanding of perjury prosecutions.(14)

    3. Subornation of Perjury: 18 U.S.C. [sections] 1622

      Section 1622(15) prohibits convincing another to commit "any perjury,"(16) whether under [sections] 1621 or [sections] 1623.(17) To be convicted of subornation of perjury, one must have persuaded another to perjure himself,(18) and the witness must have actually committed perjury.(19) However, it is not necessary that the witness be threatened with any physical harm for the accused to be guilty of subornation.(20) Similar to [sections] 1623, [sections] 1622 requires that the defendant know the testimony by the witness will be false.(21)

  2. ELEMENTS OF THE OFFENSE

    This Section explores the elements of the crimes of perjury and subornation of perjury that are, generally, (1) oath, (2) intent, (3) falsity, and (4) materiality. 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.(22) 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.(23)

    Because they are substantially similar, the elements of [subsections] 1621 and 1623 are examined together in this Section. Variations between the two statutes are noted where appropriate. Part A addresses the oath requirement, Part B looks at the scope of each statute individually, Part C examines the intent of the accused, Part D deals with the falsity element, Part E examines subornation of perjury, Part F explores the materiality requirement. Finally, Part G discusses issues surrounding the choice of statute in perjury prosecutions, and particularly the distinctions between [subsections] 1621 and 1623 regarding the two-witness rule, the use of false material, and inconsistent declarations.

    1. Oath

      Sections 1621 and 1623 both require evidence that the alleged false testimony or information was submitted while the defendant was under an oath to speak truthfully.(24) Although the oath need not take any particular form,(25) it must be administered by a person or body legally authorized to do so.(26) A survey of the cases suggests that this requirement is easily satisfied, even where the authority to administer an oath is merely derived from an administrative rule or regulation.(27) However, this does not mean that an oath having no statutory basis whatsoever could support a conviction for perjury.(28)

    2. Scope

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

        Section 1621 applies broadly to any false statement made under a properly administered oath "before a competent tribunal, officer, or person."(29) This language has been construed to extend the operation of [sections] 1621 to a diverse range of situations, not all related to judicial proceedings.(30) However, the same clause has at times been regarded as a bar to prosecutions for perjury as it implicitly excludes testimony submitted to "incompetent" tribunals, officers, and persons.(31)

        The competence of a tribunal may not be challenged under [sections] 1621 on the grounds that it did not have diversity or subject matter jurisdiction over the proceeding in which the alleged perjury was committed.(32) It also may not be challenged because the statutory offense that formed the basis of such proceeding was imperfectly pleaded(33) or was later found to be unconstitutional. However, a grand jury that has exceeded its term or has undertaken an investigation outside its powers may not constitute a competent body for the purposes of [sections] 1621.(34) A similar result occurs in the case of a legislative committee whose members are insufficient in number to constitute a quorum.(35)

      2. Section 1623: Court or Grand Jury

        As mentioned previously, [sections] 1623's prohibitions extend to all statements made in, or material to proceedings "before or ancillary to" a court or grand jury.(36) In Dunn v. United States,(37) this language was construed to limit 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.(38)

      3. Section 1622: Any Perjury

        It has already been established that [sections] 1622 applies to perjury occurring under either [sections] 1621 or [sections] 1623.(39) The scope of [sections] 1622 is determined by the statute under which the perjury charge is being pursued.(40) The burden on the government to prove perjury will be determined by either [sections] 1621 or [sections] 1623, depending on which statute is being joined with the [sections] 1622 prosecution.

    3. Intent

      1. Section 1621: Willfulness and Knowledge of Falsity

        Section 1621 is expressly limited to testimony to which the defendant willfully stated or subscribed with knowledge of its falsity.(41) Therefore, to convict under [sections] 1621 the government must prove, beyond a reasonable doubt, both willfulness(42) and knowledge.(43) False testimony provided as a result of confusion, mistake, or faulty memory does not satisfy this element.(44)

      2. Section 1623: Knowledge of Falsity

        Section 1623, unlike [sections] 1621, does not require proof that the alleged false testimony was submitted willfully.(45) Rather, it requires that such testimony have been knowingly stated or subscribed.(46) This requirement is ordinarily satisfied by proof that the defendant knew his testimony was false at the time he provided it.(47) If questioning by a prosecutor was ambiguous, perjury is difficult to establish.(48) A literally true answer to a question cannot be considered perjury, even where the answer may be "evasive, nonresponsive, intentionally misleading and arguably false" because it "was literally true and cannot support a conviction."(49)

    4. Falsity

      A declaration or statement must be false in order to constitute perjury under [sections] 1621,(50) [sections] 1622,(51) or [sections] 1623.(52) Wherever doubt remains as to the falsity of the testimony under review, the issue must be decided against the government.(53) The general principles governing a falsity inquiry are the same under [subsections] 1621, 1622 and 1623.(54) Despite its apparent simplicity, courts have straggled with this requirement.(55)

      The most prominent ruling regarding falsity is found in Bronston v. United States.(56) In Bronston the Court held that in the course of a cross-examination, a non-responsive--yet literally tree--answer may not provide the basis for a prosecution under [sections] 1621.(57) In that case, the government's attorney asked Bronston if he had ever maintained a personal bank account in Switzerland. Bronston conceded that "the company" had maintained an account there for a short time. This statement was subsequently verified, but the government discovered that Bronston had maintained a personal account in Switzerland as well.(58) On this testimony, Bronston was indicted for perjury.

      The Supreme Court rejected the government's argument that Bronston had, by implication, denied maintaining a personal account in Switzerland. The Court further rejected the proposition that a nonresponsive but literally true statement could ever form the basis of a prosecution for perjury.(59) If a false statement had not been made, the alleged intent of the defendant to mislead was irrelevant, the Court held.(60) It is the duty of...

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