Perjury and other Obstruction Offenses

• Pages: 219-243

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CHAPTER 11

PERJURY AND OTHER OBSTRUCTION OFFENSES

Clients need to be advised notto obstruct the Division’s

investigations in any way, as the U.S. Department of Justice’s Antitrust

Division (Division)will also investigate related obstructive conduct and

bring charges when such conduct occurs. Charges that can be brought

against suchconduct include perjury, subornation of perjury, contempt,

obstruction of justice, witness tampering, false statements to a

government agent, and misprision of felony. Moreover, even if the

government does not prosecute such conduct directly, a defendant’s

sentence may be enhanced for such conduct as long as the resulting

sentence does not exceed the Sherman Act’s maximum penalties.1

A.Perjury

There are two perjury statutes, 18 U.S.C. §1621, titled “Perjury

generally,” and 18 U.S.C. §1623, titled “Falsedeclarations before grand

jury or court.” Although the penalties for conviction under these statutes

are the same, there are significant differences between section 1621 and

section 1623.

1.Elements and Penalties—Sections 1621 and 1623

A section 1621 offense occurs when (1)a witness under an oath

authorized by a federal statute, (2)taken before a competent tribunal,

officer, or person, (3)willfully states or subscribes to any material

matter, (4)which he does not believe to be true.2In contrast, asection

1. SeeU.S.SENTENCING GUIDELINES MANUAL§ 3C1.1 (U.S.S.G.)

(enhancements for obstructing or impeding administration of justice).

But see Apprendi v. New Jersey, 530 U.S. 466 (2000) (judges may not

enhance criminal sentences beyond statutory maximum based on facts

other than those decided by jury beyond a reasonable doubt).

2. 18 U.S.C. § 1621(1); see United States v. Dunnigan, 507 U.S. 87, 94

(1993); United Statesv. Hvass, 355 U.S. 570, 574 (1958); United

Statesv. Debrow, 346 U.S. 374, 376 (1953); United Statesv. Stone, 429

F.2d 138, 140 (2d Cir. 1970).

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1623 false declaration occurs when (1)a witness under oath (2)in any

proceeding before or ancillary to any federal court or grand jury

(3) makes any false material declaration or uses any other information

knowing it to contain a false material declaration.3

Perjury under both sections 1621 and 1623 is punishable by a fine of

up to $250,000 or imprisonment of up to five years, or both.4The base

offense level under the Sentencing Guidelines is 14, which for a

defendant with no criminal history provides for a sentence between

fifteen and twenty-one months.5

2.Lesser Burden of Proof for Section 1623

A major substantive difference between section 1621 and section

1623 is the lesser burden of quantitative proof of falsity required for

conviction under the latter. Indeed, lawmakers enacted section 1623 to

facilitate perjury prosecutions and to overcome perceived evidentiary

problems in demonstrating perjury under section 1621.6Under section

1621, proof of the falsity of an allegedly perjurious statement cannot rest

solely on the uncorroborated oath of a single witness.7Prosecutors can,

however, satisfy this “two-witness” rule by the direct testimony of one

witness and trustworthy, independent corroborative evidence to prove the

falsity of the statement beyond a reasonable doubt.8The two-witness

3. 18 U.S.C. § 1623(a); seeUnited States v. Hird, 913 F.3d 332, 346 (3d

Cir. 2019); United States v. Burfoot, 899 F.3d 326, 339 (4th Cir. 2018);

United States v. Gulley, 992 F.2d 108, 112 (7th Cir. 1993); United

Statesv. Cosby, 601 F.2d 754, 756 (5th Cir. 1979); United Statesv.

Boberg, 565 F.2d 1059, 1061 (8th Cir. 1977).

4. 18 U.S.C. §§ 1621, 1623; 18 U.S.C. § 3571.

5. U.S.S.G. § 2J1.3; U.S.S.G. Ch. 5, Pt. A (sentencing table).

6. SeeDunnv. United States, 442 U.S. 100, 107-08 (1979); see also

ORGANIZED CRIME CONTROL ACT, H.R.REP. NO. 91-1549 (1970), as

reprinted in1970 U.S.C.C.A.N., 4007-08, 4023-24 (explaining purpose

of act).

7. SeeWeilerv. United States, 323 U.S. 606, 608-09 (1945); Hammer v.

United States, 271 U.S. 620, 626 (1926); United States v. Chaplin, 25

F.3d 1373, 1377 (7th Cir. 1994); United Statesv. Haldeman, 559 F.2d 31,

97 n.185 (D.C. Cir. 1976); United Statesv. Manfredonia, 414 F.2d 760,

764 (2d Cir. 1969); Youngv. United States, 212 F.2d 236, 241 (D.C. Cir.

1954).

8. SeeUnited Statesv. Forrest, 623 F.2d 1107, 1110 (5th Cir.1980);

Chaplin, 25 F.3d at 1377; United Statesv. Maultasch, 596 F.2d 19, 25

(2d Cir. 1979).