Perjury and other Obstruction Offenses

Pages219-243
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CHAPTER 11
PERJURY AND OTHER OBSTRUCTION OFFENSES
Clients need to be advised not to 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 such conduct 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 “False declarations 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 PenaltiesSections 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.2 In contrast, a section
1. See U.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 States v. Hvass, 355 U.S. 570, 574 (1958); United
States v. Debrow, 346 U.S. 374, 376 (1953); United States v. Stone, 429
F.2d 138, 140 (2d Cir. 1970).
Antitrust Grand Jury Investigations Handbook
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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.4 The 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 1621.6 Under section
1621, proof of the falsity of an allegedly perjurious statement cannot rest
solely on the uncorroborated oath of a single witness.7 Prosecutors 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.8 The two-witness
3. 18 U.S.C. § 1623(a); see United 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
States v. Cosby, 601 F.2d 754, 756 (5th Cir. 1979); United States v.
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. See Dunn v. United States, 442 U.S. 100, 107-08 (1979); see also
ORGANIZED CRIME CONTROL ACT, H.R. REP. NO. 91-1549 (1970), as
reprinted in 1970 U.S.C.C.A.N., 4007-08, 4023-24 (explaining purpose
of act).
7. See Weiler v. 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 States v. Haldeman, 559 F.2d 31,
97 n.185 (D.C. Cir. 1976); United States v. Manfredonia, 414 F.2d 760,
764 (2d Cir. 1969); Young v. United States, 212 F.2d 236, 241 (D.C. Cir.
1954).
8. See United States v. Forrest, 623 F.2d 1107, 1110 (5th Cir. 1980);
Chaplin, 25 F.3d at 1377; United States v. Maultasch, 596 F.2d 19, 25
(2d Cir. 1979).

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