Perjury

United States v. Hale, 762 F.3d 1214 (10th Cir. 2014)

At the meeting of creditors in a bankruptcy case, the defendant was asked, “To your best knowledge and belief, is the information contained in your petition, statements, schedules and related bankruptcy documents true, complete and accurate?” There is an ambiguity in this question, because it is not clear if the truthfulness of the answer is measured at the time the statement was made (i.e., the bankruptcy schedules were filed) or at the time of the creditors’ meeting. In this case, the ambiguity was important, because the defendant learned after filing the schedules that one of the assets was worth substantially more than what he had listed on the schedule. Because of this ambiguity, the defendant could not be convicted of making a false statement in a bankruptcy proceeding.

United States v. Wiggan, 700 F.3d 1204 (9th Cir. 2012)

The defendant was charged with committing perjury at the grand jury. At trial, the foreman was called to the stand by the government and asked not only what the defendant said, but also whether the foreman found her to be credible. The foreman testified that he did not find the defendant credible. This was reversible error. While the foreman can be asked about the circumstances of the testimony and the defendant’s appearance (and, for example, the defendant’s nervousness, etc), it is not proper for the foreman to testify whether he believed that defendant’s testimony was false.

United States v. Awadallah, 436 F.3d 125 (2d Cir. 2006)

The defendant was charged with committing perjury in the grand jury. He defended on the basis that he was exhausted, confused and intimidated. The government wanted to call grand jurors as witnesses and have them testify about the circumstances of the defendant’s testimony, as well as their opinion of the witness’s state of mind (i.e., exhaustion, confused, etc). The trial court entered an order providing that a grand juror witness would be permitted to describe the objectively observable circumstances of the grand jury testimony, but would not be permitted to express any opinion about the defendant’s state of mind or express any opinion about the defendant’s demeanor. The Second Circuit held that this was a proper Rule 403 limitation on the grand jurors’ testimony.

Chein v. Shumsky, 373 F.3d 978 (9th Cir. 2004)

The defendant was a doctor who testified as an expert witness in a personal injury case. He was charged with perjury because of his inflated testimony about his credentials. The Ninth Circuit held that the evidence was insufficient as a matter of law to establish that this testimony was “material” as defined by California law (the substantive law of the state in which the defendant was convicted). The Jackson v. Virginia standard of sufficiency must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.

United States v. Kennedy, 372 F.3d 686 (4th Cir. 2004)

The AUSA improperly advised the defendant that when he appeared at the grand jury, he had no right to plead the Fifth, because he had already been convicted of drug charges about which he was being questioned (his case was still on appeal). The defendant’s answers led to aperjury prosecution. While condemning the misconduct of the AUSA, the Fourth Circuit holds that the erroneous advice did not provide a defense to the perjury charges.

United States v. Keys, 133 F.3d 1282 (9th Cir. 1998)

The element of materiality in a perjury or false declaration prosecution must be submitted to the jury.

United States v. Farmer, 137 F.3d 1265 (10th Cir. 1998)

The defendant was asked the following questions during her testimony at a pretrial hearing: "Prior to your coming to testify here today, did you speak to anyone about your testimony here today?" "Have you talked to Mr. McMahon, the defendant about your testimony here today?" The witness had talked to Mr. McMahon about her testimony, but had not talked to him that day. The appellate court held that the questions were fundamentally ambiguous, because they may have been interpreted as asking whether she had spoken to the defendant that day. This was not a matter which would be left up to the jury to decide. Given the ambiguity in the question, a jury could not find the defendant guilty of perjury beyond a reasonable doubt.

United States v. Shotts, 145 F.3d 1289 (11th Cir. 1998)

The evidence was insufficient to prove that the defendant’s grand jury testimony was perjurious. The defendant was asked if he “owned” a bail bond business and he answered “no,” because, technically, as a matter of state law, the shareholders own the corporation and the defendant was not a shareholder, even though they were just nominees for the defendant. An answer to a question may be non-responsive, or may be subject to conflicting interpretations, or may even be false by implication. Nevertheless, if the answer is literally true, it is not perjury. Bronston v. United States, 409 U.S. 352 (1973).

United States v. Reveron Martinez, 836 F.2d 684 (1st Cir. 1988)

A misleading statement that is literally true may not be the basis for a perjury conviction.

United States v. Regan, 103 F.3d 1072 (2d Cir. 1997)

The court explained the concept of the “perjury trap” doctrine. The “defense” applies when the government is not legitimately seeking to obtain the answers to any questions when the defendant is questioned in the grand jury, but is only asking the questions in order to elicit false answers to trigger a perjury prosecution. The defense did not apply in this case.

United States v. Littleton, 76 F.3d 614 (4th Cir. 1996)

The defendant was the mother of a young man who was charged with murder. The defendant testified at a suppression hearing for her son and explained that she went to the police station when her son was arrested; and also testified about a conversation she had with investigators several days later at her house. The government claimed she lied about these matters and prosecuted her for perjury and obstruction of justice. The Fourth Circuit reversed both convictions on the grounds that her statements, even if false, were not material to the suppression hearing at which she testified. With regard to the obstruction count, there was no showing that the defendant intended to obstruct the proceedings involving her son.

United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987)

A witness testified inconsistently at a grand jury and at a post-conviction hearing on a third party’s motion for new trial. The Fourth Circuit holds that the inconsistency in the testimony – the amount of money the defendant had received from the third party for cocaine – was not material. The defendant had acknowledged while giving testimony that the differences in the amount of money specified was due to his faulty memory.

United States v. Earp, 812 F.2d 917 (4th Cir. 1987)

The defendant, a Klansman, was asked before the grand jury whether he had burned crosses at residences of interracial couples. The witness answered in the negative. Although the witness had participated in attempted cross burnings, the government failed to specifically ask about any attempted burnings or whether the witness was at or near a particular residence on the night of an alleged cross-burning attempt.

United States v. Holley, 942 F.2d 916 (5th Cir. 1991)

The jury in this perjury prosecution was not instructed that they must unanimously agree that at least one statement in each count of the indictment was false. This was reversible error, as it could not be determined whether the jury unanimously agreed that the defendant lied with respect to any one statement.

United States v. Chaplin, 25 F.3d 1373 (7th Cir. 1994)

Under the rule established in Bronston v. United States, 409 U.S. 352 (1973), an answer under oath that is literally true but not responsive to the question, and arguably misleading, is not a violation of 18 U.S.C. §1621. In order to establish falsity, the “two-witness” rule provides that the uncorroborated testimony of one witness is not sufficient to establish falsity. There must be at least some corroboration of the witness’s testimony. Another rule provides that a conviction may not be obtained based solely on circumstantial evidence. However, this second rule does not apply in cases in which the perjury relates to the defendant’s state of mind, since that is a matter which can only be proved by circumstantial evidence. In this case, the evidence was sufficient on some counts, but insufficient on other counts.

United States v. Smith, 35 F.3d 344 (8th Cir. 1994)

Under 18 U.S.C. §1623(d), a defendant can avoid a perjury prosecution if he recants either (1) before it becomes manifest to her that the false testimony would be exposed; or (2) if she can show that the proceeding was not substantially affected by her false testimony. Though this may not be good logic, the words of the statute are not ambiguous. Thus, if a witness lies to a judicial tribunal and then, upon learning that she had been discovered, grudgingly recants before the proceeding was substantially affected, this would be a defense to the charge.

United States v. Swink, 21 F.3d 852 (8th Cir. 1994)

The defendant was prosecuted for committing perjury during an SEC investigation. His allegedly perjurious testimony related to his knowledge about the securities in which he was dealing. The evidence at trial did not establish that he lied about his lack of knowledge about the securities.

United States v. Porter, 994 F.2d 470 (8th Cir. 1993)

18 U.S.C. §1623(c) provides that if a person makes two irreconcilably inconsistent statements under oath and both are material to the inquiry in question and are within the statute of limitations, the defendant can be prosecuted for perjury without the government having toprove which statement is false. The defendant entered a guilty plea to mail fraud and later filed a habeas petition and denied his guilt. He was prosecuted under §1623. The Eighth Circuit reversed: the two statements of the defendant were not such that one had to be false. The statute requires “a variance in testimony that extends beyond mere vagueness, uncertainty, or equivocality. . . Even though two declarations may differ from one another, the §1623(c) standard is not met unless, taking them in context, they are so different that if one is true there is no way that the other can also be true.” Among other things, because the questions were slightly different at the two proceedings, the defendant’s answers were not necessarily irreconcilable: “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry . . . Precise questioning is imperative as a predicate for the offense of perjury.”

United States v. Jaramillo, 69 F.3d 388 (9th Cir. 1995)

18 U.S.C. §1623(c) provides that, if two statements are made by a defendant which are inconsistent, the government may convict the defendant of making a false statement without showing which statement was false. The Ninth Circuit holds that, in order for this section to apply, both statements must be made under oath.

United States v. Boone, 951 F.2d 1526 (9th Cir. 1991)

Though literally true, the defendant’s answer in the grand jury was misleading. This could not support a perjury conviction. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.

United States v. Schulman, 817 F.2d 1355 (9th Cir. 1987)

The allegations in the indictment in this perjury prosecution did not sufficiently set out the allegedly perjurious statements and objective truths in stark contrast so that the claim of the falsity was clear to all who read the charge.

United States v. Allen, 892 F.2d 66 (10th Cir. 1989)

The defendant was prosecuted for perjury in connection with his application for the appointment of an attorney in a pending criminal case. The defendant used an alias on the application. The use of the alias, however, was not a material misstatement and therefore a perjury prosecution could not be sustained.