Perjury Under Federal Law: A Brief Overview
Charles Doyle
Senior Specialist in American Public Law
November 5, 2010
Congressional Research Service
7-5700
www.crs.gov
98-808
CRS Report for Congress
P
repared for Members and Committees of Congress
Perjury Under Federal Law: A Brief Overview
Summary
Although it now covers more than court proceedings, the definition of perjury has not changed a
great deal otherwise since the framing of the Constitution. Blackstone described it as “a crime
committed when a lawful oath is administered, in some judicial proceeding, to a person who
swears wilfully, absolutely and falsely, in a matter material to the issue or point in question.”
There are three general federal perjury laws. One, 18 U.S.C. 1621, outlaws presenting material
false statements under oath in federal official proceedings. A second, 18 U.S.C. 1623, bars
presenting material false statements under oath before or ancillary to federal court or grand jury
proceedings. A third, 18 U.S.C. 1622 (subornation of perjury), prohibits inducing or procuring
another to commit perjury in violation of either Section 1621 or Section 1623.
In most cases, the courts abbreviate their description of the elements and state that to prove
perjury under Section 1623 the government must establish that the defendant “(1) knowingly
made a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to
any court or grand jury of the United States.”
The courts generally favor the encapsulation from United States v. Dunnigan to describe the
elements of Section 1621: “A witness testifying under oath or affirmation violates this section if
she gives false testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.”
Section 1622 outlaws procuring or inducing another to commit perjury: “Whoever procures
another to commit any perjury is guilty of subornation of perjury, and shall be fined under this
title or imprisoned for not more than five years, or both,” 18 U.S.C. 1622.
The false statement statute, 18 U.S.C. 1001, is closely akin to the perjury statutes. It outlaws false
statements in any matter within the jurisdiction of a federal agency or department, a kind of
perjury with oath prohibition.
Moreover, regardless of the offense for which an individual is convicted, his sentence may be
enhanced as a consequence of any obstruction of justice in the form of perjury or false statements
for which he is responsible, if committed during the course of the investigation, prosecution, or
sentencing for the offense of his conviction. The enhancement may result in an increase in his
term of imprisonment by as much as four years.
This report is available in abbreviated form—without footnotes, quotations, or citations—as CRS
Report 98-807, Perjury Under Federal Law: A Sketch of the Elements. Both versions have been
excerpted from CRS Report RL34303, Obstruction of Justice: An Overview of Some of the
Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities.
Excerpted portions of RL34303 are also available as follows. CRS Report RS22783, Obstruction
of Justice: An Abridged Overview of Related Federal Criminal Laws; CRS Report RL34304,
Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with
Congressional Activities; and CRS Report RS22784, Obstruction of Congress: An Abridged
Overview of Federal Criminal Laws Relating to Interference with Congressional Activities. All
are by Charles Doyle.
Congressional Research Service
Perjury Under Federal Law: A Brief Overview
Contents
Introduction ................................................................................................................................ 1
Perjury in a Judicial Context (18 U.S.C. 1623) ............................................................................ 2
Perjury Generally (18 U.S.C. 1621)............................................................................................. 7
Subornation of Perjury (18 U.S.C. 1622)..................................................................................... 9
False Statements (18 U.S.C. 1001) ............................................................................................ 10
Perjury as a Sentencing Factor (U.S.S.G. §3C1.1)...................................................................... 13
Selected Bibliography ............................................................................................................... 17
Contacts
Author Contact Information ...................................................................................................... 17
Congressional Research Service
Perjury Under Federal Law: A Brief Overview
Introduction
Although it now covers more than court proceedings, the definition of perjury has not changed a
great deal otherwise since the framing of the Constitution. Blackstone described it as “a crime
committed when a lawful oath is administered, in some judicial proceeding, to a person who
swears wilfully, absolutely and falsely, in a matter material to the issue or point in question.”1
Federal perjury laws are found principally in chapter 79 of title 18 of the United States Code.2
The chapter consists of three sections: Section 1623 under which perjury involving judicial
proceedings is most often prosecuted today; the historic perjury provision, Section 1621, now
used primarily for cases where Section 1623 is unavailable and in sentencing enhancement cases;
and Section 1622 that outlaws subornation of perjury. Section 1001 of title 18—a statute much
like the perjury laws but without the requirement that the offender have taken an oath—outlaws
material false statements in any matter within the jurisdiction of any federal agency or
department, and to a limited extent within the jurisdiction of any federal court or congressional
entity.
None of the four are RICO predicate offenses or money laundering predicate offenses.3 The laws
relating to aiding and abetting, accessories after the fact, misprision, and conspiracy,4 however,
1 IV Blackstone, Commentaries on the Laws of England, 136-37 (1769) (italics in the original; transliteration added).
Blackstone actually borrowed from Coke and noted the various penalties to which it was subject: “The next offense
against public justice is when the suit is past its commencement, and come to trial. And that is the crime of wilful and
corrupt perjury; which is defined by sire Edward Coke [3 Inst. 164], to be a crime committed when a lawful oath is
administered, in some judicial proceeding, to a person who swears wilfully, absolutely and falsely, in a matter material
to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of
justice, having power to administer an oath; or before some magistrate or proper officer, invested with a similar
authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths
unnecessary at least, and therefore will not punish the breach of them. For which reason it is much to be questioned
how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as it now too frequent
upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in soro
conscientiae incur the guilt, and at the same time evade the temporal penalties, of perjury. The perjury must also be
wilful, positive, and absolute; not upon surprize, or the like: it also must be in some point material to the question in
dispute; for if it only be in some trifling collateral circumstance, to which no regard is paid, it is not more penal than in
the voluntary extrajudicial oaths before-mentioned. Subornation of perjury is the offence of procuring another to take
such a false oath, as constitutes perjury in the principal. The punishment of perjury and subornation, as common law,
has been various. It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and
now it is fine and imprisonment, and never more to be capable of bearing testimony. But the statute 5 Eliz. c.9. (if the
offender be prosecuted thereon) inflicts the penalty of perpetual infamy, and fine of 40l. on the suborner; and, in default
of payment, imprisonment for six months, and to stand with both ears mailed to the pillory. Perjury itself is thereby
punished with six months imprisonment, perpetual infamy, and fine of 20l. or to have both ears nailed to the pillory.
But the prosecution is usually carried on for the offence at common law; especially as, to the penalties before inflicted,
the statute 2 Geo.II. c.25 superadds a power, for the court to order the offender to be sent to the house of correction for
seven years, or to be transported for the same period; and makes it a felony without benefit of clergy to return or escape
within the time,” Id.
2 Prohibitions against misconduct very much like perjury are scattered throughout the United States Code. The most
widely prosecuted is probably 18 U.S.C. 1001, discussed infra, that outlaws material false statements made with
respect to a matter within the jurisdiction of a department or agency of the United States. For a discussion of 18 U.S.C.
1503 and 1505 which outlaw corrupt endeavors to impede the due administration of justice before the courts and
executive tribunal and the due exercise of the power of congressional inquiry see CRS Report RL34303, Obstruction of
Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative
Activities.
3 18 U.S.C. 1961(1), 1956(c)(7).
4 18 U.S.C. 2, 3, 4, 371.
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apply to all four.5 Sections 1621 and 1623 state that their prohibitions apply regardless of whether
the perjurious conduct occurs overseas or within this country.6 Section 1001 has no such explicit
declaration, but has been held to have extraterritorial application nonetheless.7
Perjury in a Judicial Context (18 U.S.C. 1623)
Congress enacted Section 1623 to avoid in relation to judicial proceedings some of the common
law technicalities embodied in the more comprehensive perjury provisions found in subsection
1621 and thus “to facilitate perjury prosecutions and thereby enhance the reliability of testimony
before federal courts and grand juries.”8 Unlike subsection 1621, subsection 1623 permits a
conviction in the case of two mutually inconsistent declarations without requiring proof that one
of them is false.9 It recognizes a limited recantation defense.10 It dispenses with the so-called two-
witness rule.11 And, it employs a “knowing” mens rea standard rather than the more demanding
“willfully” standard used in subsection 1621.12
Parsed into elements, Section 1623 declares that:
I. Whoever
II. a. under oath or
b. in any
i. declaration,
ii. certificate,
iii. verification, or
iv. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States Code13
5 E.g., United States v. Atalig, 502 F.3d 1063, 1065 (9th Cir. 2007)(conspiracy to violate 18 U.S.C. 1001); cf., United
States v. Dunne, 324 F.3d 1158, 1162-163 (10th Cir. 2003).
6 18 U.S.C. 1621 (“This section is applicable whether the statement or subscription is made within or without the
United States”); 18 U.S.C. 1623 (“This section is applicable whether the conduct occurred within or without the United
States”).
7 United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986).
8 Dunn v. United States, 442 U.S. 100, 107 (1979), citing, S.REP.NO. 91-617, at 58-9 (1969)(internal citations omitted).
9 18 U.S.C. 1623(c).
10 18 U.S.C. 1623(d).
11 18 U.S.C. 1623(e).
12 18 U.S.C. 1623(a).
13 “Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to
law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition,
or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter
may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
“(1) If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)’.
“(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(continued...)
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III. in any proceeding before or ancillary to
a. any court or
b. grand jury of the United States
IV. knowingly
V. a. makes any false material declaration or
b. makes or uses any other information, including any
i. book,
ii. paper,
iii. document,
iv. record,
v. recording, or
vi. other material,
knowing the same to contain any false material declaration,
shall be fined under this title or imprisoned not more than five years, or both.14
In most cases, the courts abbreviate their description of the elements and state in one form or
another that to prove perjury the government must establish that the defendant (1) knowingly
made a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to
any court or grand jury of the United States.15
The allegedly perjurious declaration must be presented in a “proceeding before or ancillary to any
court or grand jury of the United States.” An interview in an attorney’s office in preparation for a
judicial hearing cannot be considered such an ancillary proceeding,16 but the phrase “proceedings
ancillary to” court or grand jury proceedings does cover proceedings to take depositions in
connection with civil litigation,17 as well as a variety of pretrial proceedings in criminal cases,18
including habeas proceedings,19 bail hearings,20 venue hearings,21 or suppression hearings.22
(...continued)
(Signature)’.”
14 18 U.S.C. 1623(a).
15 United States v. Gorman, 613 F.3d 711, 715-16 (7th Cir. 2010)(“To support a conviction for perjury beyond a
reasonable doubt, the government had the burden of proving that (1) the defendant, while under oath, testified falsely
before the grand jury; (2) his testimony related to some material matter; and (3) he knew that testimony was false”);
United States v. Hasan, 609 F.3d 1121, 1134 (10th Cir. 2010)(“To establish guilt under the statute, the government must
prove beyond a reasonable doubt that: (1) the defendant made a declaration under oath before a grand jury; (2) such
declaration was false; (3) the defendant knew the declaration was false and (4) the false declaration was material to the
grand jury’s inquiry”); United States v. Safa, 484 F.3d 818, 821 (6th Cir. 2007)(“To convict an individual of a violation
of 18 U.S.C. 1623, the government must prove beyond a reasonable doubt that the defendant: (1) knowingly made, (2)
a materially false declaration (3) under oath (4) in a proceeding before or ancillary to any court of the United States”);
United States v. Pagan-Santini, 451 F.3d 258, 266 (1st Cir. 2006); United States v. Hirsch, 360 F.3d 860, 864-65 (8th
Cir. 2004).
16 Dunn v. United States, 442 U.S. 100, 111-12 (1979).
17 Id.; United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998); United States v. Holland, 22 F.3d 1040, 1047-48
(11th Cir. 1994); United States v. McAfee, 8 F.3d 1010, 1013-14 (5th Cir. 1993).
18 United States v. Farmer, 137 F.3d 1265 (11th Cir. 1998).
19 United States v. Johnson, 325 F.3d 205, 209 (4th Cir. 2003).
20 United States v. Greene, 591 F.2d 471 (8th Cir. 1979).
21 United States v. Durham, 139 F.3d 1325 (10th Cir. 1998).
22 United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998).
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The Supreme Court’s observation that a statement that is misleading but literally true cannot
support a conviction under Section 1621 because it is not false,23 applies with equal force to
perjury under Section 1623.24 Similarly, perjury cannot be the product of confusion, mistake, or
faulty memory, but must be a statement that the defendant knows is false,25 although this
requirement may be satisfied with evidence that the defendant was deliberately ignorant or
willfully blind to the fact that the statement was false.26 On the other hand, “[a] question that is
truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a
finding of perjury, as it could never be said that one intended to answer such a question
untruthfully.”27 Yet ambiguity will be of no avail if the defendant understands the question and
answers falsely nevertheless.28
Materiality is perhaps the most nettlesome of perjury’s elements. It is usually said that a statement
is material “if it has a natural tendency to influence, or is capable of influencing, the decision of
the decisionmaking body to whom it is addressed.”29 This definition is not easily applied when
the precise nature of the underlying inquiry remains somewhat undefined such as in grand jury
proceedings or in depositions at the discovery stage of a civil suit. On the civil side, the lower
federal courts appear divided between the view (1) that a statement in a deposition is material if a
“truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at
the trial of the underlying suit” and (2) that a statement is material “if the topic of the statement is
discoverable and the false statement itself had a tendency to affect the outcome of the underlying
civil suit for which the deposition was taken.”30
In the case of perjury before the grand jury, rather than articulate a single standard the courts have
described several circumstances under which false testimony may be considered material.31 In
23 Bronston v. United States, 409 U.S. 352, 358-59 (1973).
24 United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010); United States v. Thomas, 612 F.3d 1107, 1114-115 (9th
Cir. 2010); United States v. Richardson, 421 F.3d 17, 32-3 (1st Cir. 2005); United States v. Shotts, 145 F.3d 1289, 1297
(11th Cir. 1998); United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1996).
25 United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998); United States v. Reveron Martinez, 836 F.2d 684, 689 (1st
Cir. 1988); cf., United States v. Dunnigan, 507 U.S. 87, 94 (1993).
26 United States v. Fawley, 137 F.3d 458, 466-67 (7th Cir. 1998).
27 United States v. Richardson, 421 F.3d 17, 33 (1st Cir. 2005); United States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir.
1998); see also United States v. Turner, 500 F.3d 685, 689 (8th Cir. 2007)(“If, however, a question is fundamentally
vague or ambiguous, then an answer to that question cannot sustain a perjury conviction”).
28 United States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)(“A question leading to a statement supporting a perjury
conviction is not fundamentally ambiguous where the jury could conclude beyond a reasonable doubt that the
defendant understood the question as did the government and that so understood, the defendant’s answer was false”);
United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006); United States v. Turner, 500 F.3d 685, 690 (8th Cir. 2007);
United States v. Gorman, 613 F.3d 711, 716 (7th Cir. 2010).
29 United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006), citing, United States v. Gaudin, 515 U.S. 506, 509 (1995),
and Kungys v. United States, 485 U.S. 759, 770 (1988); see also United States v. Benkahla, 530 F.3d 300, 310 (4th Cir.
2008); United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Lee, 359 F.3d 412, 417 (6th Cir.
2003); United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998).
30 United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), comparing, United States v. Kross, 14 F.3d 751, 754
(2d Cir. 1994), and United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), with, United States v. Adams, 870 F.2d
1140, 1146-148 (6th Cir. 1989) and United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990), overruled on other
grounds, United States v. Keys, 133 F.3d 1282, 1286 (9th Cir,. 1998); see also United States v. McKenna, 327 F.3d 830,
839-40 (9th Cir. 2003)(acknowledging the division and continuing to adhere to the view expressed in Clark).
31 E.g., United States v. Brown, 459 F.3d 509, 530 n.18 (5th Cir. 2006)(“The materiality requirement of §1623 has been
satisfied in cases where the false testimony was relevant to any subsidiary issue or was capable of supplying a link to
the main issue under consideration”); United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005)(“A statement of
(continued...)
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any event, a statement is no less material because it did not or could not divert the
decisionmaker.32
The courts seem to have had less difficulty dealing with a materiality issue characterized as the
perjury trap doctrine. The doctrine arises where a witness is called for the sole purpose of
eliciting perjurious testimony from him.33 Under such circumstances it is said the tribunal has no
valid purpose to which a perjurious statement could be considered material. The doctrine poses
no bar to prosecution in most cases, however, since the government is usually able to identify
some valid reason for the grand jury’s inquiries.34
Subsection 1623(c) permits a perjury conviction simply on the basis of two necessarily
inconsistent material declarations rather than a showing that one of the two statements is false.35
Conviction does require a showing, however, that the two statements were made under oath; it is
not enough to show that one was made under oath and the other was made in the form of an
(...continued)
witness to a grand jury is material if the statement is capable of influencing the grand jury as to any proper matter
pertaining to its inquiry or which might have influenced the grand jury or impeded its inquiry. To be material, the
statement need not directly concern an element of the crime being investigated, nor need it actually influence the
jury”); United States v. Burke, 425 F.3d 400, 414 (7th Cir. 2005)(“Even potential interference with a line of inquiry can
establish materiality”); United States v. Blanton, 281 F.3d 771, 775(8th Cir. 2002)(“The statements need not be material
to any particular issue, but may be material to any proper matter of inquiry”); United States v. Plumley, 207 F.3d 1086,
1095-96 (8th Cir. 2000)(“Although it is true that this particular question did not address the ultimate issue. . at the time
... it is not thereby rendered immaterial” (citing cases in which a statement before the grand jury was found to be
material when a “truthful answer would have raised questions about the role of others ... when [the] witness obscures
[his] whereabouts or involvement in offense ... [and] about peripheral matters [that] can become material when
considered in context”)).
32 United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005); United States v. Lee, 359 F.3d 412, 416 (6th Cir. 2004);
United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003).
33 Brown v. United States, 245 F.2d 549, 555 (8th Cir. 1957), quoting, United States v. Icardi, 140 F.Supp. 383, 384-88
(D.D.C. 1956); but see United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005)(“We have not embraced this doctrine,
however, and do not see any reason to adopt it now”)(internal citations omitted).
34 United States v. McKenna, 327 F.3d 830, 837 (9th Cir. 2003)(“Here, the government did not use its investigatory
powers to question McKenna before a grand jury. Rather, it merely questioned McKenna in its role as a defendant
during the pendency of a civil action in which she was the plaintiff. The perjury trap doctrine is inapplicable to
McKenna’s case for this reason”); United States v. Regan, 103 F.3d 1073, 1079 (2d Cir. 1997)(“[w]e have noted that
the existence of a legitimate basis for an investigation and for particular questions answered falsely precludes any
application of the perjury trap doctrine”); United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991)(“[w]hen testimony is
elicited before a grand jury that is attempting to obtain useful information in furtherance of its investigation or
conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction, the perjury trap
doctrine is, by definition, inapplicable”), quoting, United States v. Devitt, 499 F.2d 135, 140 (7th Cir. 1974) and United
States v. Chevoor, 526 F.2d 178, 185 (1st Cir. 1975).
35 18 U.S.C. 1623(c)(“An indictment or information for violation of this section alleging that, in any proceedings before
or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more
declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which
declaration is false if—(1) each declaration was material to the point in question, and (2) each declaration was made
within the period of the statute of limitations for the offense charged under this section. In any prosecution under this
section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for
conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the
point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment
or information made pursuant to the first sentence of this subsection that the defendant at the time he made each
declaration believed the declaration was true”); United States v. Dunn, 442 U.S. 100, 108 (1979)(“By relieving the
government of the burden of proving which of two or more inconsistent declarations was false, see §1623(c), Congress
sought to afford greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of
truth”).
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affidavit signed under penalty of perjury.36 Moreover, the statements must be so inherently
contradictory that one of them of necessity must be false.37
Some years ago, the Supreme Court declined to reverse an earlier ruling that “[t]he general rule in
prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish
the falsity of the testimony of the accused set forth in the indictment.”38 Subsection 1623(e)
permits a perjury conviction without compliance with this traditional two witness rule.39 Since the
two witness rule rests on the common law rather than on a constitutional foundation, it may can
be abrogated by statute without offending constitutional principles.40
Most of the other subsections of Section 1623 are designed to overcome obstacles which the
common law placed in the path of a successful perjury prosecution. Subsection 1623(d), in
contrast, offers a defense unrecognized at common law. The defense is stated in fairly
straightforward terms, “[w]here in the same continuous court or grand jury proceeding in which a
declaration is made, the person making the declaration admits such declaration to be false, such
admission shall bar prosecution under this section if, at the time the admission is made, the
declaration has not substantially affected the proceeding, or it has not become manifest that such
falsity has been or will be exposed.”41 Although phrased in different terms, the courts seem to
agree that repudiation of the false testimony must be specific and thorough.42 There is some
disagreement whether a recanting defendant must be denied the defense if both the substantial
impact and manifest exposure conditions have been met or if the defense must be denied if either
condition exists. Most courts have concluded that the presence of either condition dooms the
defense.43
Early construction required that a defendant establish both that his false statement had not
substantially affected the proceeding before his recantation and that it had not become manifest
that his false statement would be exposed.44 One more recent appellate case, however, decided
36 United States v. Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995).
37 United States v. McAfee, 8 F.3d 1010, 1014-15 (5th Cir. 1993)(“The Government must show that the statements are
so irreconcilable that one of the statements is ‘necessarily false.’ We find the Fourth Circuit’s explanation of §1623(c)
instructive and adopt the standard set forth in United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987). In Flowers, the
court concluded that subsection 1623(c) ‘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 into context, they are so different that if one is true there is no way the other can also be true.’”
Id. at 1324; see also United States v. Porter, 994 F.2d 470 (8th Cir. 1993)).
38 Weiler v. United States, 323 U.S. 606, 607 (1945).
39 18 U.S.C. 1623(e)(“Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be
necessary that such proof be made by any particular number of witnesses or by documentary or other type of
evidence”). See also United States v. Kemp, 500 F.3d 257, 294 (3d Cir. 2007); United States v. Hasan, 609 F.3d 1121,
1139 (10th Cir. 2010).
40 United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973); United States v. Diggs, 560 F.2d 266, 269 (7th Cir.
1977)(citing cases in accord).
41 18 U.S.C. 1623(d); cf., United States v. DeLeon, 603 F.3d 397, 404-405 (7th Cir. 2010).
42 United States v. Tobias, 863 F.2d 685, 689 (9th Cir. 1988)(unequivocal repudiation); United States v. Scivola, 766
F.2d 37, 45 (1st Cir. 1985)(implicit recantation is insufficient); United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir.
1983)(outright retraction and repudiation).
43 United States v. Sherman, 150 F.3d 306, 313-18 (3d Cir. 1998); United States v. Fornaro, 894 F.2d 508, 510-11 (2d
Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Denison, 663 F.2d 611, 615 (5th
Cir. 1981); United States v. Moore, 613 F.2d 1029, 1043 (D.C.Cir. 1979); contra, United States v. Smith, 35 F.3d 344,
345-47 (8th Cir. 1994).
44 United States v. Moore, 613 F.2d 1029, 1043-44 (D.C. Cir. 1979); United States v. Srimgeour, 636 F.2d 1019, 1021
(continued...)
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that the defense should be available to a witness who could show a want of either an intervening
adverse impact or of likely exposure of his false statement.45 Even without the operation of
subsection 1623(d), relatively contemporaneous corrections of earlier statements may negate any
inference that the witness is knowingly presenting false testimony and thus preclude conviction
for perjury.46
Perjury Generally (18 U.S.C. 1621)
When Congress passed Section 1623, it did not repeal Section 1621 either explicitly or by
implication; where its proscriptions overlap with those of Section 1623, the government is free to
choose under which it will prosecute.47 Since Section 1623 frees prosecutors from many of the
common law requirements of Section 1621, it is perhaps not surprising that they ordinarily elect
to prosecute under subsection 1623. Section 1623 does outlaw perjury under a wider range of
circumstances than Section 1621; it prohibits perjury before official proceedings generally—both
judicial and nonjudicial. Separated into its elements, the section provides that:
(1)
I. Whoever having taken an oath
II. before a competent tribunal, officer, or person,
III. in any case in which a law of the United States authorizes an oath to be administered,
IV. a. that he will
i. testify,
ii. declare,
iii. depose, or
iv, certify truly, or
b. that any written
i. testimony,
ii. declaration,
iii. deposition, or
iv. certificate
by him subscribed, is true,
V. willfully and contrary to such oath
VI. a. states or
b. subscribes
any material matter which he does not believe to be true; or
(...continued)
(5th Cir. 1980); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Formaro, 894 F.2d 508, 510-
11 (2d Cir. 1990).
45 United States v. Smith, 35 F.3d 344, 345 (8th Cir. 1994).
46 United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).
47 United States v. Sherman, 150 F.3d 306, 312-13 (3d Cir. 1998); United States v. Ruggiero, 472 F.2d 599, 606 (2d
Cir. 1973).
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(2)
I. Whoever in any
a. declaration,
b. certificate,
c. verification, or
d. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States Code,
II. willfully subscribes as true
III. any material matter
IV. which he does not believe to be true
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under
this title or imprisoned not more than five years, or both. This section is applicable whether
the statement or subscription is made within or without the United States.48
The courts generally favor an abbreviated encapsulation such as the one found in United States v.
Dunnigan: “A witness testifying under oath or affirmation violates this section if she gives false
testimony concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.”49
Perjury is only that testimony which is false. Thus, testimony that is literally true, even if
deceptively so, cannot be considered perjury for purposes of a prosecution under Section 1621.50
Moreover, Section 1621 requires compliance with “the two witness rule” to establish that a
statement is false. Under the rule, “the uncorroborated oath of one witness is not sufficient to
establish the falsity of the testimony of the accused as set forth in the indictment as perjury.”51
Thus, conviction under Section 1621 requires that the government “establish the falsity of the
statement alleged to have been made by the defendant under oath, by the testimony of two
independent witnesses or one witness and corroborating circumstances.”52 If the rule is to be
satisfied with corroborative evidence, the evidence must be trustworthy and support the account
of the single witness upon which the perjury prosecution is based.53
48 18 U.S.C. 1621.
49 United States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003);
United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002); United States v. Nash, 175 F.3d 429, 438 (6th Cir. 1999);
see also United States v. Dumeisi, 424 F.3d 566, 582 (7th Cir. 2005)(“the elements of perjury are (1) testimony under
oath before a competent tribunal, (2) in a case in which United States law authorizes the administration of an oath, (3)
false testimony, (4) concerning a material matter, (5) with the willful intent to provide false testimony”).
50 Bronston v. United States, 409 U.S. 352, 362 (1972) (“It may well be that petitioner’s answers were not guileless but
were shrewdly calculated to evade. Nevertheless ... any special problems arising from the literally true but unresponsive
answer are to be remedied through the questioner’s acuity and not by a federal perjury prosecution”); see also United
States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003); United States v. Roberts, 308 F.3d 1147, 1152 (11th Cir. 2002);
United States v. DeZarn, 157 F.3d 1042, 1047-48 (6th Cir. 1998).
51 Hammer v. United States, 271 U.S. 620, 626 (1926).
52 Weiler v. United States, 323 U.S. 606, 607 (1945); United States v. Stewart, 433 F.3d 273, 315 (2d Cir. 2006); United
States v. Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994).
53 Weiler v. United States, 323 U.S. 606, 610 (1945); United States v. Stewart, 433 F.3d 273, 315 (2d Cir. 2006)(“The
rule is satisfied by the direct testimony of a second witness or by other evidence of independent probative value,
circumstantial or direct, which is of a quality to assure that a guilty verdict is solidly founded. The independent
(continued...)
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The test for materiality under Section 1621 is whether the false statement “has a natural tendency
to influence or [is] capable of influencing the decision-making body to which it [is] addressed.”54
Conviction under Section 1621 requires not only that the defendant knew his statement was false
(“which he does not believe to be true”), but that his false statement is “willfully” presented.
There is but scant authority on precisely what “willful” means in this context. The Supreme Court
in dicta has indicated that willful perjury consists of “deliberate material falsification under
oath.”55 Other courts have referred to it as acting with an “intent to deceive”56 or as acting
“intentionally.”57
Although a contemporaneous correction of a false statement may demonstrate the absence of the
necessary willful intent to commit perjury, the crime is completed when the false statement is
presented to the tribunal; without a statute such as that found in Section 1623, recantation is no
defense nor does it bar prosecution.58
Subornation of Perjury (18 U.S.C. 1622)
Section 1622 outlaws procuring or inducing another to commit perjury: “Whoever procures
another to commit any perjury is guilty of subornation of perjury, and shall be fined under this
title or imprisoned for not more than five years, or both,” 18 U.S.C. 1622. The crime consists of
two elements—(1) an act of perjury committed by another (2) induced or procured by the
defendant. Perjury under either Section 1621 or 1623 will support a conviction for subornation
under Section 1622,59 but proof of the commission of an act of perjury is a necessary element of
subornation.60 Although the authorities are exceptionally sparse, it appears that to suborn one
must know that the induced statement is false and that at least to suborn under Section 1621 one
must also knowingly and willfully induce.61 Subornation is only infrequently prosecuted as such
(...continued)
evidence must, by itself, be inconsistent with the innocence of the defendant. However, the corroborative evidence need
not, it itself, be sufficient, if believed to support a conviction”).
54 United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Roberts, 308 F.3d 1147, 1155 (11th
Cir. 2002); United States v. Allen, 892 F.2d 66, 67 (10th Cir. 1989); United States v. Mareno Morales, 815 F.2d 725,
747 (1st Cir. 1987); see also United States v. Wallace, 597 F.3d 794, 801 (6th Cir. 2010)(“A false declaration satisfies
the materiality requirement if a truthful statement might have assisted or influenced the jury in its investigation”).
55 United States v. Norris, 300 U.S. 564, 574 (1937)(emphasis added).
56 United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954).
57 United States v. Friedman, 854 F.2d 535, 560 (2d Cir. 1988); United States v. Mounts, 35 F.3d 1208, 1219 (7th Cir.
1994).
58 United States v. Norris, 300 U.S. 564, 574 (1934); United States v. McAfee, 8 F.3d 1010, 1017 (5th Cir. 1993).
59 United States v. Endo, 635 F.2d 321, 322 (4th Cir. 1980).
60 United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995)(if the underlying perjury conviction is reversed for
insufficient evidence, the subornation conviction must likewise be reversed); see also United States v. Silverman, 745
F.2d 1386, 1394 (11th Cir. 1984).
61 Rosen v. N.L.R.B., 735 F.2d 564, 575 n.19 (4th Cir. 1980)(“it is true that a necessary predicate of the charge of
subornation of perjury is the suborner’s belief that the testimony sought is in fact false”); Petite v. United States, 262
F.2d 788, 794 (4th Cir. 1959)(“[i]t is essential to subornation of perjury that the suborner should have known or
believed or have had good reason to believe that the testimony given would be false, that he should have known or
believed that the witness would testify willfully and corruptly, and with knowledge of the falsity; and that he should
have knowingly and willfully induced or procured the witness to give such false testimony”)(Petite only refers to
Section 1621 since it was decided prior to the enactment of Section 1623).
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perhaps because of the ease with which it can now be prosecuted as an obstruction of justice
under either 18 U.S.C. 1503 or 151262 which unlike Section 1622 do not insist upon suborner
success as a prerequisite to prosecution.63
False Statements (18 U.S.C. 1001)
The general false statement statute, 18 U.S.C. 1001, outlaws false statements, concealment, or
false documentation in any matter within the jurisdiction of any of the three branches of the
federal government, although it limits application in the case of Congress and the courts.64 More
specifically it states:
I. Except as otherwise provided in this section,
II. whoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States,
III. knowingly and willfully—
IV. a. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
b. makes any materially false, fictitious, or fraudulent statement or representation; or
c. makes or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves
international or domestic terrorism (as defined in section 2331), imprisoned not more than 8
years, or both. If the matter relates to an offense under chapter 109A [sexual abuse], 109B
[sex offender registration], 110 [sexual exploitation], or 117 [transportation for illicit sexual
purposes], or section 1591 [sex trafficking], then the term of imprisonment imposed under
this section shall be not more than 8 years.65
62 United States v. Miller, 161 F.3d 977, 982-84 (6th Cir. 1998).
63 18U.S.C. 1503 (emphasis added) (“Whoever ... endeavors to influence, obstruct, or impede the due administration of
justice ... ”); 1512 (b) (emphasis added) (“Whoever ... corruptly persuades another person, or attempts to do so ... with
intent to influence ... the testimony of any person in an official proceeding ... ”).
64 There are scores of more limited false statement statutes that relate to particular agencies or activities and include 8
U.S.C. 1160(b)(7)(A) (applications for immigration status); 15 U.S.C. 158 (China Trade Act corporate personnel); 15
U.S.C. 645 (Small Business Administration); 15 U.S.C. 714m (Commodity Credit Corporation); 16 U.S.C. 831t (
TVA); 18 U.S.C. 152 ( bankruptcy); 18 U.S.C. 287 (false or fraudulent claims against the United States); 18 U.S.C. 288
(postal losses); 18 U.S.C. 289 (pensions); 18 U.S.C. 541 (entry of goods falsely classified); 18 U.S.C. 542 (entry of
goods by means of false statements); 18 U.S.C. 550 (refund of duties); 18 U.S.C. 1003 (fraudulent claims against the
United States); 18 U.S.C. 1007 (FDIC transactions); 18 U.S.C. 1011 (federal land bank mortgage transactions); 18
U.S.C. 1014 (loan or credit applications in which the United States has an interest); 18 U.S.C. 1015 (naturalization,
citizenship or alien registry); 18 U.S.C. 1019 (false certification by consular officer); 18 U.S.C. 1020 (highway
projects); 18 U.S.C. 1022 (false certification concerning material for the military); 18 U.S.C. 1027 (ERISA); 18 U.S.C.
1542 (passport applications); 18 U.S.C. 1546 (fraud in connection with visas, permits and other documents); 22 U.S.C.
1980 (compensation for loss of commercial fishing vessel or gear); 22 U.S.C. 4221 (American diplomatic personnel);
22 U.S.C. 4222 (presentation of forged documents to United States foreign service personnel); 42 U.S.C. 408 (old age
claims); 42 U.S.C. 1320a-7b (Medicare).
65 18 U.S.C. 1001(a). For additional discussion of §1001 see, Twenty-Fifth Survey of White Collar Crime: False
Statements and False Claims, 47 AMERICAN CRIMINAL LAW REVIEW 527 (2010).
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The courts’ description of the elements will sometimes be couched in terms of the form of
deception at hand—false statement,66 concealment,67 or false documentation.68 On other
occasions the courts will simply treat concealment or false documentation as a form of false
statement.69
In addition, Section 1001 imposes a limitation upon an offense that involves matters within the
jurisdiction of either the judicial or legislative branch:
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s
counsel, for statements, representations, writings or documents submitted by such party or
counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch,
subsection (a) shall apply only to—(1) administrative matters, including a claim for payment,
a matter related to the procurement of property or services, personnel or employment
practices, or support services, or a document required by law, rule, or regulation to be
submitted to the Congress or any office or officer within the legislative branch; or (2) any
investigation or review, conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress, consistent with applicable rules of the
House or Senate. 18 U.S.C. 1001(b),(c).
Those limitations constitute elements of the offense in such cases.70
A matter is within the jurisdiction of a federal entity when it involves a matter “confided to the
authority of a federal agency or department ... A department or agency has jurisdiction, in this
sense, when it has power to exercise authority in a particular situation. Understood in this way,
the phrase ‘within the jurisdiction’ merely differentiates the official, authorized functions of a
66 United States v. Geisen, 612 F.3d 471, 489 (6th Cir. 2010)(“In order to convict a defendant for making false
statements to a federal agency in violation of 18 U.S.C. §1001, the government must prove: (1) the defendant made a
statement; (2) the statement is false or fraudulent; (3) the statement is material; (4) the defendant made the statement
knowingly and willfully; and (5) the statement pertained to an activity within the jurisdiction of a federal agency”);
United States v. Dinga, 609 F.3d 904, 907 (7th Cir. 2010).
67 United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006)(“We have identified the five elements of a ‘false
statement’ charge under §1001(a)(2) ... (1) the defendant must ... have a duty to disclose the information; (2) ... there
must be acts amounting to concealment; (3) the ... concealed facts must be material; (4) the person must ... conceal the
facts knowingly and willfully; and (5) the ... concealed information must concern a matter within the jurisdiction of a
federal department or agency”).
68 United States v. McGauley, 279 F.3d 62, 69 (1st Cir. 2002)(“To establish a violation of 18 U.S.C. 1001, the
government must prove that the defendant knowingly and willfully made or used a false writing or document, in
relation to a matter with the jurisdiction of the United States government with knowledge of its falsity”); United States
v. Blankenship, 382 F.3d 1110, 1131-132 (11th Cir. 2004).
69 United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010)(“To sustain a conviction for violation of 18 U.S.C.
section 1001, the government must prove (1) that a statement was made; (2) that it was false; (3) that it was material;
(4) that it was made with specific intent; and (5) that it was within the jurisdiction of an agency of the United States....
Falsity under section 1001 can be established by a false representation or by concealment of a material fact”); United
States v. White, 492 F.3d 380, 396 (6th Cir. 2007)(“Sufficient evidence also supports Defendant White’s conviction for
use of a false document. Title 18 U.S.C. §1001(a)(3) prohibits ‘knowingly and willfully mak[ing] or us[ing] any false
writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.’ 18
U.S.C. §1003(a)(3). Here, the government must prove (1) the defendant made a statement; (2) the statement is false or
fraudulent; (3) the statement is material; (4) the defendant made the statement knowingly and willfully; and (5) the
statement pertained to an activity within the jurisdiction of a federal agency”).
70 United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007); United States v. Pickett, 353 F.3d 62, 66-69 (D.C. Cir.
2004).
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agency or department from matters peripheral to the business of that body.”71 Several courts have
held that the phrase contemplates coverage of false statements made to state, local, or private
entities but relating to matters that involve federal funds or regulations.72 Subsection 1001(b)
precludes application of prohibitions in Section 1001(a) to the statements, omissions, or
documentation presented to the court by a party in judicial proceedings. This includes statements
of indigency filed by a defendant seeking the appoint of counsel,73 or by a defendant for a
probation officer’s presentence report;74 but not statements made by one on supervised release to
a parole officer.75
Although the offense can only be committed “knowingly and willfully,” the prosecution need not
prove that the defendant knew that his conduct involved a “matter within the jurisdiction” of a
federal entity76 nor that he intended to defraud a federal entity.77 It does, however, require the
government to show the defendant knew or elected not to know that the statement, omission, or
documentation was false and that the defendant presented it with the intent to deceive.78 The
phrase “knowingly and willfully” refers to the circumstances under which the defendant made his
statement, omitted a fact he was obliged to disclose, or included with his false documentation,
i.e., “that the defendant knew that his statement was false when he made it or—which amounts in
law to the same thing—consciously disregarded or averted his eyes from the likely falsity.”79
71 United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. Jackson, 608 F.3d 193, 197 (4th Cir. 2010);
United States v. Atalig, 502 F.3d 1063, 1068 (9th Cir. 2007); United States v. Blankenship, 382 F.3d 1110, 1136 (11th
Cir. 2004); United States v. White, 270 F.3d 356, 363 (6th Cir. 2001).
72 United States v. Starnes, 583 F.3d 196, 208 (3d Cir. 2009)(“Indeed, it is enough that the statement or representation
pertain to a matter in which the executive branch has the power to exercise authority.... HUD, an agency within the
executive branch, provided the funding for the Donoe project to VIHA and had the power to exercise authority over the
project, had it chosen to do so”); United States v. Taylor, 582 F.3d 558, 563(5th Cir. 2009)(“The term ‘jurisdiction’
merely incorporates Congress’[s] intent that the statute apply whenever false statements would result in the perversion
of the authorized functions of a federal department or agency”); United States v. White, 270 F.3d 356, 363 (6th Cir.
2001)(“We have in the past looked to whether the entity to which the statements were made received federal support
and/or was subject to federal regulation”); United States v. Davis, 8 F.3d 923, 929 (2d Cir. 1993)(“In situations in
which a federal agency is overseeing a state agency, it is the mere existence of the federal agency’s supervisory
authority that is important to determining jurisdiction”), contra, United States v. Blankenship, 382 F.3d 1110, 1139,
1141 (11th Cir. 2004)(emphasis in the original) (“The clear, indisputable holding of Lowe is that a misrepresentation
made to a private company concerning a project that is the subject of a contract between that company and the federal
government does not constitute a misrepresentation about a matter within the jurisdiction of the federal government....
Because neither Lowe not its central holding has ever been overruled ... it remains good law”).
73 United States v. McNeil, 362 F.3d 570, 573 (9th Cir. 2004)(but observing that “[s]ubmitting a false CJA-23 form may
subject a defendant to criminal liability under other statutes, for example, under 18 U.S.C. 1621, the general statute on
perjury, or 18 U.S.C. 1623, which punishes the making of a false material declaration in any proceeding, before, or
ancillary to, any court”).
74 United States v. Horvath, 492 F.3d 1075, 1078-1081 (9th Cir. 2007).
75 United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001).
76 United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006).
77 United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Starnes, 583 F.3d 196, 212 n. 8 (3d Cir.
2009).
78 United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010)(“For purposes of the statute, the word ‘false’
requires an intent to deceive or mislead”); United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009)(“In general,
‘knowingly’ requires the government to prove that a criminal defendant had ‘knowledge of the facts that constitute the
offense ... willfully ... usually requires the government to prove that the defendant acted not merely voluntarily, but
with a bad purpose, that is, with knowledge that his conduct was, in some general sense, unlawful”).
79 United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006); United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000);
United States v. Hsia, 176 F.3d 716, 721-22 (D.C. Cir. 1999); United States v. Hoover, 175 F.3d 564, 571 (7th Cir.
1999).
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Prosecution for a violation of Section 1001 requires proof of materiality, as does conviction for
perjury, and the standard is the same: the statement must have a “natural tendency to influence, or
be capable of influencing the decisionmaking body to which it is addressed.”80 There is no need
to show that the decision maker was in fact diverted or influenced.81
Conviction for false statements or false documentation under Section 1001 also requires that the
statements or documentation be false, that they not be true.82 And the same can be said of the
response to a question that is so fundamentally ambiguous that the defendant’s answer cannot be
said to be knowingly false.83 On the other hand, unlike the perjury provision of Section 1623,
“there is no safe harbor for recantation or correction of a prior false statement that violates
Section 1001.”84
Prosecutions under subsection 1001(a)(1) for concealment, rather than false statement or false
documentation, must also prove the existence of duty or legal obligation not to conceal.85
Perjury as a Sentencing Factor (U.S.S.G. §3C1.1)
Regardless of the offense for which an individual is convicted, his sentence may be enhanced as a
consequence of any obstruction of justice for which he is responsible, if committed during the
course of the investigation, prosecution, or sentencing for the offense of his conviction.86 The
80 United States v. Garcia-Ochoa, 607 F.3d 371, 375 (4th Cir. 2010); United States v. Boffil-Rivera, 607 F.3d 736, 741-
42 (11th Cir. 2010); United States v. Jimeniez, 593 F.3d 391, 399-400 (5th Cir. 2010); United States v. Turner, 551 F.3d
657, 663 (7th Cir. 2008); United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005); United States v. Stewart, 433 F.3d
273, 318 (2d Cir. 2006); United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004); United States v. Finn, 375 F.3d
1033, 1038 (10th Cir. 2004).
81 United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005), quoting, United States v. Gaudin, 515 U.S. 506, 512
(1995); United States v. Stewart, 420 F.3d 1007, 1019 (9th Cir. 2005); United States v. Mitchell, 388 F.3d 1139, 1143
(8th Cir. 2004); United States v. Hasner, 340 F.3d 1261, 1273-274 (11th Cir. 2003).
82 United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003)(“The principle articulated in Bronston holds true for
convictions under Section 1001 ... We cannot uphold a conviction ... where the alleged statement forming the basis of a
violation of Section 1001 is true on its face”); United States v. Edwards, 303 F.3d 606, 637 (5th Cir. 2002); United
States v. Kosth, 257 F.3d 712, 719 (7th Cir. 2001).
83 United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003); United States v. Good, 326 F.3d 589, 592 (4th Cir.
2003); cf., United States v. Martin, 369 F.3d 1046, 1060 (8th Cir. 2004); United States v. Hatch, 434 U.S. 1, 4-5 (1st Cir.
2006).
84 United States v. Dooley, 578 F.3d 582, 592 (7th Cir. 2009); United States v. Stewart, 433 F.3d 273, 318 (2d Cir.
2006), citing, United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-
487 (10th Cir. 1993); and United States v. Fern, 696 F.2d 1269, 1275 (11th Cir. 1983).
85 United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008)(“As Safavian argues and as the government agrees,
there must be a legal duty in order for there to be a concealment offense in violation of §1001(a)(1)”); United States v.
Stewart, 433 F.3d 273, 318-19 (2d Cir. 2006)(“Defendant’s legal duty [as a broker] to be truthful under Section 1001
included a duty to disclose the information regarding the circumstances of Stewart’s December 27th trade.... Trial
testimony indicated that the SEC had specifically inquired about [his] knowledge of Stewart’s trades. As a result, it was
plausible for the jury to conclude that the SEC’s questioning and triggered [his] duty to disclose and that ample
evidence existed that his concealment was material to the investigation ”); United States v. Moore, 446 F.3d 671, 678-
79 (7th Cir. 2006)(regulatory obligation); United States v. Gibson, 409 F.3d 325, 333 (6th Cir. 2005) (“Conviction on a
18 U.S.C. 1001 concealment charge requires a showing that the ‘defendant had a legal duty to disclose the facts at the
time he was alleged to have concealed them’”), quoting, United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994).
86 If the defendant is convicted of an obstruction of justice offense, the enhancement only applies “if a significant
further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if
the defendant threatened a witness during the course of the prosecution for the obstruction offense),” U.S.S.G. §3C1.1,
(continued...)
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enhancement may result in an increase in his term of imprisonment by as much as four years. The
enhancement is the product of the influence of §3C1.1 of the United States Sentencing
Guidelines.
Federal sentencing begins with, and its greatly influenced by, the calculation of the applicable
sentencing range under the Sentencing Guidelines.87 The Guidelines assign every federal crime a
base offense level to which they add levels for various aggravating factors. Obstruction of justice
is one of those factors. Each of the final 43 offense levels is assigned to one of six sentencing
ranges, depending on the extent of the defendant’s past crime history. For example, a final offense
level of 15 means a sentencing range of from 18 to 24 months in prison for a first time offender
(criminal history category I) and from 41 to 51 months for a defendant with a very extensive
criminal record (criminal history category VI).88 Two levels higher, at a final offense level of 17,
the range for first time offenders is 24 to 30 months; and 51 to 63 months for the defendant with a
very extensive prior record.89 The impact of a 2-level increase spans from no impact at the lowest
final offense levels to a difference of an additional 68 months at the highest levels.90
Section 3C1.1 instructs sentencing courts to add 2 offense levels in the case of an obstruction of
justice:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the
offense level by 2 levels. U.S.S.G. §3C1.1.
(...continued)
cmt., app. n. 7.
87 Gall v. United States, 552 U.S. 38, 49-51 (2007)(“[A] district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.... [A]fter giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then consider all of the [18 U.S.C] §3553(a) factors to
determine whether they support the sentence requested by a party.... If he decides that an outside-Guidelines sentence is
warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more
significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing....
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review
the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider
the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this
review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance
from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to,
apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a
presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the
district court’s decision that the §3553(a) factors, on a whole, justify the extent of the variance”).
88 U.S.S.G. ch. 5 Sentencing Table.
89 Id.
90 Id.
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Perjury Under Federal Law: A Brief Overview
The accompanying commentary explains that the section “is not intended to punish a defendant
for the exercise of a constitutional right.”91 More specifically, a “defendant’s denial of guilt (other
than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a plea of guilty is not a basis for application
of this provision.”92 Early on, the Supreme Court made it clear that an individual’s sentence might
be enhanced under U.S.S.G §3C1.1, if he committed perjury during the course of his trial.93
Moreover, the examples provided elsewhere in the section’s commentary and the cases applying
the section confirm that it reaches perjurious statements in a number of judicial contexts and to
false statements in a number of others. The examples in the section’s commentary cover conduct:
(B) committing, suborning, or attempting to suborn perjury, including during the course of a
civil proceeding if such perjury pertains to conduct that forms the basis of the offense of
conviction;
(F) providing materially false information to a judge or magistrate;
(G) providing a materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant offense;
(H) providing materially false information to a probation officer in respect to a presentence
or other investigation for the court; [and]
(I) other conduct prohibited by obstruction of justice provisions under Title 18, United States
Code (e.g., 18 U.S.C. §§1510, 1511).94
The courts have concluded that an enhancement under the section is appropriate, for instance,
when a defendant has (1) given preposterous, perjurious testimony during his own trial;95 (2)
given perjurious testimony at his suppression hearing; (3) given perjurious, exculpatory testimony
at the separate trial of his girl friend;96 (4) made false statements in connection with a probation
officer’s bail report;97 (5) made false statements to the court in an attempt to change his guilty
plea;98 (6) made false statements to federal investigators;99 and (7) made false statements to state
investigators relating to conduct for which the defendant was ultimately conviction.100
When perjury provides the basis for an enhancement under the section, the court must find that
the defendant willfully testified falsely with respect to a material matter.101 When based upon a
91 U.S.S.G. §3C1.1, cmt., app. n. 2.
92 Id.
93 United States v. Dunnigan, 507 U.S. 87, 98 (1993).
94 U.S.S.G. §3C1.1, cmt., app. n. 4(a).
95 United States v. Dinga, 609 F.3d 904, 909 (7th Cir. 2010).
96 United States v. Quintero, 618 F.3d 746, 752-53 (7th Cir. 2010).
97 United States v. Bedolla-Zavala, 611 F.3d 392, 395 (7th Cir. 2010).
98 United States v. Alvarado, 615 F.3d 916, 922-23 (8th Cir. 2010).
99 United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010).
100 United States v. Alexander, 602 F.3d 639, 642-43 & n.4 (5th Cir. 2010)(“The First, Second, Third, Forth, Sixth,
Eighth, Ninth, Tenth and Eleventh Circuits have all held that obstruction of a state investigation based on the same
facts as the eventual federal conviction qualifies for enhancement under U.S.S.G. §3C1.1.... Only the Seventh Circuit
has held the obstruction of a state proceeding does not qualify ... ”).
101 United States v. Johnson, 612 F.3d 889, 893 (7th Cir. 2010), citing United States v. Dunnigan, 507 U.S. 87, 95
(1993); see also United States v. Gonzalez, 609 F.3d 13, 20(1st Cir. 2010); United Stats v. Mashek, 606 F.3d 922, 933
(continued...)
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false statement not under oath, the statement must still be material, that is, it must “tend to
influence or affect the issue under determination.”102 Even then, false identification at the time of
arrest only warrants a sentencing enhancement under the section when the deception significantly
hinders the investigation or prosecution.103
The commentary accompanying the section also states that the enhancement may be warranted
when the defendant threatens a victim, witness, or juror;104 submits false documentations;105
destroys evidence;106 flees (in some cases);107 or engages in any other conduct that constitute an
obstruction of justice under criminal law provisions of title 18 of the United States Code.108
(...continued)
(8th Cir. 2010).
102 U.S.S.G. §3C1.1, cmt., app. n. 6; United States v. Bedolla-Zavala, 611 F.3d at 396; United States v. Miller, 607
F.3d 144, 151 (5th Cir. 2010); see also U.S.S.G. §3C1.1, cmt., app. n. 5(C)(“Examples of Conduct Ordinarily Not
Covered.—... The following is non-exhaustive list of examples of the types of conduct to which this application note
applies ... (C) providing incomplete or misleading information, amount amounting to a material falsehood, in respect to
a presentencing investigation”); United States v. Miller, 607 F.3d 144, 150 (5th Cir. 2010)(omission of a source of
income and fact of a bankruptcy filing from presentence financial statement).
103 U.S.S.G. §3C1.1, cmt., app. n. 5(a); cf., United States v. Bedolla-Zavala, 611 F.3d at 395-96.
104 U.S.S.G. §3C1.1, cmt., app. n. 4(A), (K)(“Examples of Covered Conduct.—The following is a non-exhaustive list
of examples of the types of conduct to which this adjustment applies: (A) threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so; ... (K) threatening
the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of
conviction”); see United States v. Snipes, 611 F.3d 855, 871 (11th Cir. 2010)(enhancement appropriate for threats to
induce failure to comply with grand jury subpoena); United States v. Green, 617 F.3d 233, 239 n. 3 (3d Cir.
2010)(enhancement appropriate for threats against a potential witness).
105 U.S.S.G. §3C1.1, cmt., app. n. 4(C)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (C) producing or attempting to produce a false,
altered, or counterfeit document or record during an official investigation or judicial proceeding”).
106 U.S.S.G. §3C1.1, cmt., app. n. 4(D)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (D) destroying or concealing or directing or
procuring another person to destroy or conceal evidence that is material to an official investigation or judicial
proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has
commenced or is about to commence), or attempting to do so; however, if such conduct occurred contemporaneously
with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient
to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation or
prosecution of the instant offense or the sentencing of the offender”); United States v. King, 604 F.3d 125, 141 (3d Cir.
2010)(destruction of evidence-containing computer hard drives).
107 U.S.S.G. §3C1.1, cmt., app. n. 4(E)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (E) escaping or attempting to escape from custody
before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding”); but see U.S.S.G.
§3C1.1, cmt., app. n. 5(D)(“Examples of Conduct Not Covered.... The following is a non-exhaustive list of examples of
the types of conduct to which this adjustment applies: ... (D) avoiding or fleeing from arrest”); see United States v.
Gonzalez, 608 F.3d 1001, 1006-1007(7th Cir. 2010), citing cases endeavoring to distinguish the two statements in the
commentary.
108 U.S.S.G. §3C1.1, cmt., app. n. 4(I)(“Examples of Covered Conduct.—The following is a non-exhaustive list of
examples of the types of conduct to which this adjustment applies: ... (E) other conduct prohibited by obstruction of
justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§1510, 1511”); see United States v. Wahlstrom,
588 F.3d 538, (8th Cir. 2009)(enhancement appropriate for efforts to arrange the murder of the prosecutor’s wife);
United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010)(enhancement appropriate for efforts induce a witness to
testify falsely before the grand jury).
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Selected Bibliography
Green, Uncovering the Cover-Up Crimes, 42 AMERICAN CRIMINAL LAW REVIEW 9 (2005)
Harrison, Recantation: Illusion or Reality? 2006 MICHIGAN STATE LAW REVIEW 637
Twenty-Fifth Survey of White Collar Crime: Perjury, 47 AMERICAN CRIMINAL LAW REVIEW 889
(2010)
Construction and Application of §2J1.3 of the United States Sentencing Guidelines (U.S.S.G.
§2J1.3), Pertaining to Sentencing for Perjury, Subornation of Perjury, and Witness Bribery, and
Departures Therefrom, 130 ALR FED. 269
Determination of “Materiality” Under 18 USCS §1623, Penalizing False Material Declarations
Before Grand Jury or Court, 60 ALR FED. 76
Determination of Materiality Under 18 USCS §§1621, 1622, 22 ALR FED. 379
Effect of Federal Prosecutor’s Failure to Warn of Status as a Target or Subject of Grand Jury
Investigation Upon Subsequent Prosecution for Perjury Based on Testimony of Grand Jury, 89
ALR FED. 498
Recantation as Bar to Perjury Prosecution Under 18 USCS §1623(d), 65 ALR FED. 177
Two-Witness Rule in Perjury Prosecutions Under 18 USCS §1621, 49 ALR FED. 185
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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