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...Knowledge Falsity 2. Section 1623: Knowledge of Falsity C. Falsity D. Materiality E. Key Distinctions between [section] 1621 and [section] 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
Truthful testimony is essential to the administration of justice and the functional capacity of every branch 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) In an effort to free courts of the "pollution of perjury," (2) by deterring and punishing false testimony, (3) Congress enacted 18 U.S.C. [section][section] 1621, (4) 1622, (5) and 1623. (6)
A. Section 1621: False Testimony Generally
Section 1621, (7) 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 law of the United States authorizes an oath to be administered." (8) Section 1621 has withstood constitutional challenges for vagueness, (9) and been applied in a variety of situations that fall under the broad purview of the statute. (10)
Courts have construed this phrase broadly and have applied [section] 1621 in a broad range of situations, with limitations existing as to what constitutes an "incompetent" tribunal, officer, or person. (11) A grand jury acting within its jurisdiction is a competent tribunal for purposes of [section] 1621, (12) but one that has exceeded its term or has undertaken an investigation outside its powers is not. (13) Similarly, a Congressional committee will be regarded as a competent tribunal, (14) unless it acts outside a legitimate legislative purpose (15) or if it lacks a quorum. (16) However, the competency of a tribunal is not compromised for purposes of [section] 1621 because it lacks diversity or subject matter jurisdiction. (17) Nor is a tribunal incompetent because the statutory offense that formed the basis of the proceeding was imperfectly pleaded, (18) based on a defective indictment, (19) or later found to be unconstitutional. (20)
B. Section 1623: False Testimony to Court or Grand Jury
Congress enacted [section] 1623 (21) to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." (22) The statute is operative only 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." (23) This language limits 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. (24) The statute applies without restriction to the broad range of proceedings that fall within this category. (25) Additionally, federal courts have upheld the constitutionality of [section] 1623, even though some of its provisions depart from the common law rules regarding perjury prosecutions. (26)
C. Section 1622: Subornation of Perjury
Section 1622 (27) prohibits convincing another to commit "any perjury," whether under the requirements of [section] 1621 or [section] 1623, (28) though the elements the government must prove will correlate with whether [section] 1621 or [section] 1623 underlies the [section] 1622 prosecution. (29)
To be convicted of subornation of perjury, one must have persuaded a witness to perjure herself, (30) and that witness must actually have committed perjury. (31) It is not necessary that the defendant threaten the witness with physical harm for the defendant to be guilty of subornation. (32) Section 1622, like [section] 1623, only requires that the defendant know the testimony by the witness will be false. (33)
II. ELEMENTS OF THE OFFENSE
The elements of perjury and subornation of perjury are (i) oath; (ii) intent; (iii) falsity; and (iv) materiality. (34) 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 and, while under such oath, willfully and knowingly made a false statement as to material facts. (35) A conviction under [section] 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 used any item she knew to contain a false material statement. (36)
A. Oath
Sections 1621 and 1623 require evidence that the defendant was under oath when he submitted the false testimony or information. (37) The oath need not take any particular form under [section] 1621. (38) For [section] 1621, the oath requirement is easily satisfied, even where the authority to administer an oath is derived from an administrative rule or regulation. (39) However, an oath having no authoritative basis may not support a conviction for perjury. (40) Courts differ as to the form requirements under [section] 1623. (41)
B. Intent
1. Section 1621: Willfulness and Knowledge of Falsity
The essence of the crime of perjury is willful untruth, under oath, in material statement. (42) Section 1621 applies only to testimony the defendant willfully stated or to which the defendant subscribed with knowledge of its falsity. (43)
Therefore, to convict under [section] 1621, the government must prove willfulness (44) or knowledge (45) beyond a reasonable doubt.
The intent element for [section] 1621 is not satisfied by false testimony provided as a result of confusion, mistake, faulty memory, (46) or inconsequential inconsistencies or conflicts in a witness' testimony. (47)
2. Section 1623: Knowledge of Falsity
Unlike [section] 1621, [section] 1623 is not limited to willfully submitted false testimony. (48) Section 1623 merely requires that the defendant made a statement that she knew to be false at the time she made it. (49) The government can meet this burden using circumstantial or direct evidence. (50) A jury may gauge the intentions of false testimony by surrounding circumstances (51) or infer that a defendant knew her testimony to be false from the disproof of that testimony alone. (52) However, proving knowledge of falsity is difficult if questioning by a prosecutor was ambiguous. (53)
C. Falsity
A declaration or statement must be false to constitute perjury under [section] 1621, (54) [section] 1622, (55) or [section] 1623. (56) The determination as to whether the defendant believed at time he delivered that his testimony was untruthful is for the jury to decides The general principles governing a falsity inquiry are the same under all three sections. (58) In the past the falsity of the underlying testimony had to be proven by direct evidence, (59) but the growing trend is for courts to hold that compelling circumstantial evidence can suffice where falsity cannot be proven directly. (60) Wherever doubt remains as to the falsity of the testimony under review, the issue must be decided against the government. (61) An answer may still be perjurious even if it is susceptible to various interpretations if taken out of context (62) or was prefaced by a qualifying phrase, such as "I believe." (63)
In Bronston v. United States, (64) the Supreme Court held that, in the course of a cross-examination, a misleading but literally true answer could not provide the basis for a prosecution under [section] 1621. (65) If no false statement has been made, even the alleged intent of the witness to mislead by evasion or non-response is irrelevant. (66) Fancy footwork in crafting a response may preclude actionable perjury if there is literal truth in the answer, as occurred in the Eleventh Circuit case of United States v. Shotts (67) where a perjury conviction was reversed based on defendant's statement he did not "own" a corporation with which he was associated, because under Alabama law a corporation is "owned" by its shareholders. (68) In cases such as this, the Court in Bronston reasoned that if a witness punts the question, "it is the lawyer's responsibility ... to bring the witness back to the mark, to flush out the whole truth with the tools of adversarial examination." (69)
Hence, it is essential to a perjury conviction that the prosecutor fashion unambiguous questions (70) because courts have consistently held that a fundamentally ambiguous question cannot be the basis of a perjury conviction. (71) Though some disagreement exists as to what constitutes a fundamental ambiguity, (72) it is something more than mere vagueness and a question is not fundamentally ambiguous simply because the questioner and respondent might have different interpretations. (73) Courts agree that a fundamental ambiguity does not include a question that "men of ordinary intelligence" could mutually understand the meaning of based on the context and circumstances in which it was asked. (74)
An important difference between [section] 1621 and [section] 1623 concerns inconsistent statements. The government must prove a defendant's testimony was false to support a conviction under [section] 1621 (75) or [section] 1623(a). (76) However, a conviction under [section] 1623(c) requires only proof of irreconcilable inconsistency, not falsity. (77) To satisfy this element of [section] 1623(c), the government must prove that the inconsistent statements are irreconcilable, (78) but it need not show which of the statements was actually false. (79) The government also cannot demonstrate evidence of perjury by showing that testimony of a witness is inconsistent with the statements of another witness. (80)
D. Materiality
A false statement must be material to be actionable under [section] 1621, [section] 1622, or [section] 1623. (81) The burden of proving materiality rests on the prosecution. (82) Testimony is material if it has "a natural tendency to influence" or is "capable of influencing" the tribunal to which it is addressed. (83) When evaluating materiality, courts consider the venue in which the false statement was made. (84) The greater a tribunal's authority is to investigate; a greater number of statements are considered material. (85)
A statement is not rendered immaterial simply because it does not resolve an issue in the tribunal before whom it is uttered. (86) Accordingly, courts have held that a statement is material if it tends to enhance or impugn the credibility of a material witness, even in instances where the statement is unrelated to charges in a criminal trial. (87) False statements have been found to be material because truthful answers
no matter how persuasive is insufficient.") (internal quotation marks omitted); Spaeth v. United States, 218 F.2d 361,363 (6th Cir. 1955) ("The rule is that the falsity cannot be proved by circumstantial evidence alone...."). would have likely led to the discovery of admissible evidence in the underlying suit. (88)
Even if evidence is available that would arguably render a declaration superfluous, the availability of such evidence does not affect the materiality of a declaration. (89) Thus, a defendant's statement to a grand jury has been deemed material even though prior to his appearance the government presented sufficient evidence to support the indictment against him. (90) Some courts have found that a statement only needs to be "capable" of influencing a grand jury to satisfy the materiality requirement. (91) Other courts have suggested that the requirement is met if a truthful answer would have resulted in further investigation of other crimes or people within the broad powers of the grand jury. (92)
Courts have rejected the argument that a statement is per se immaterial if the investigation ultimately proves fruitless, even if a truthful statement would not have changed the result. (93) In such cases, courts determine materiality as of the time of the statement, regardless of subsequent events. (94)
United States v. Gaudin (95) signaled an important procedural change in the enforcement of materiality when it determined that the question of materiality is a mixed question of law and fact that must be submitted to the jury. In Gaudin, the defendant appealed his conviction under 18 U.S.C. [section] 1001, which prohibits submission of false statements to the federal government. (96) The defendant objected to the trial court's refusal to submit the question of materiality to the jury. (97) The Supreme Court unanimously determined that the trial court had erred in failing to submit the question of materiality to the jury. (98) In Johnson v. United States, (99) the Supreme Court extended Gaudin by holding a jury should determine whether the government has proven, beyond a reasonable doubt, that the defendant's false statement was capable of influencing a decision-making body. (100)
E. Key Distinctions between [section] 1621 and [section] 1623
Both [section] 1621 and [section] 1623 extend to ordinary judicial proceedings. (101) It is well settled that the government is entitled to choose between overlapping criminal statutes, provided that it does not discriminate against any class of defendants. (102) Thus, the government may charge a defendant under [section] 1621 or [section] 1623 when a false statement falls under both statutes. This rule is consistent with the absence of preemptive language in both statutes and the congressional intent expressed in the legislative history of [section] 1623. (103)
Significant differences between [section][section] 1621 and 1623 exist. This section of the Article examines the important distinctions between the two provisions, including the application of the "two-witness rule," the result of recantation, the use of false materials, and the consequences of inconsistent declarations.
1. Two-Witness Rule
Generally, the two-witness rule requires that a perjury conviction under [section] 1621 cannot be sustained solely upon the testimony of a single witness. (104) The testimony of only one witness has nonetheless been ruled sufficient to satisfy the statute in cases where the testimony is corroborated by other evidence. (105) A document used to refresh a witness's recollection will not satisfy this corroboration requirement. (106) However, business records found to be sufficiently independent to corroborate the testimony of the creator of the document will satisfy the requirement. (107)
Section 1623, however, 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." (108) The apparent purpose of this language is to prevent the application of the two-witness rule in [section] 1623 prosecutions, (109) an interpretation that the courts have respected. (110)
The two-witness rule does not apply for the purpose of establishing that a defendant induced a witness to commit perjury under [section] 1622. (111) To be convicted for subornation of perjury under [section] 1622, the accused must have believed that the testimony about to be given was false. (112) Because the suborner and the perjuring witness are not considered accomplices, the rule barring conviction based on uncorroborated testimony of an accomplice does not apply. (113) Accordingly, the testimony of one witness may be sufficient to convict under [section] 1622. (114)
2. Use of False Material
Section 1621 applies to a broader range of proceedings than [section] 1623, but a more narrow range of conduct. Under [section] 1621, a defendant is guilty of perjury only when she is under oath and states, or subscribes to, material matters that she does not believe to be true. (115) By contrast, a witness who is under oath violates [section] 1623 whenever she "knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material,...
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