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Perjury False Statements And Obstruction Of Justice

Perjury charges in federal court involves (a) testimony made under oath, (b) that was false, (c) material to the proceeding,[2] and (d) was made deliberately with knowledge that the information was false.  18 U.S.C. § 1621; 9th Cir. Model Crim. Jury Inst. No. 8.135 (2010).  The U.S. Supreme Court stated, “[a] witness testifying under oath or affirmation violates this statute 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.”  United States v. Dunnigan, 507 U.S. 87, 94 (1993).

The Ninth Circuit requires more than the testimony of one witness to establish a finding that the testimony was false.  9th Cir. Inst. No. 8.135..  However, “[w]hen the alleged false testimony is proved by circumstantial evidence, corroboration is not required.”  Id., citingGebhard v. United States, 422 F.2d 281, 288 (9th Cir. 1970).  Testimonial perjury charges are said to be difficult to prove.  Kyle Graham, Crimes, Widgets, and Plea Bargaining: An Analysis of Charge Content, Pleas and Trials, 100 Calif. L. Rev. 1572, 1587 n. 77 (2012).   By contrast, perjury committed on a tax return is much easier to prove because most people know approximately how much money they make.  Id., citing United States v. Boulerice, 325 F.3d 75, 80 (1st Cir. 2003).

Persons who “procure another to commit perjury” are guilty of subornation of perjury.  18 U.S.C.§ 1622; 9th Cir. Model Crim. Jury Inst. No. 8.135 (2010).  The same elements of perjury need to be proven beyond a reasonable doubt, in addition to proving that the defendant voluntarily and intentionally persuaded the witness to commit perjury and that the defendant acted with the intent that the witness would deceive the court or grand jury.  Id.  Corroboration is needed if the subornation charge stems from a § 1621 perjury, whereas no corroboration is needed for conduct stemming from false declarations before a grand jury or court (18 U.S.C. § 1623).  Id.  Section 2J1.3 of the U.S. Sentencing Guidelines (“U.S.S.G.”) applies to perjury and subornation of perjury.

As suggested, 18 U.S.C. § 1623 criminalizes making false declarations before the court or grand jury.  The elements are essentially the same as those required for perjury charges; however, the government must present evidence from an earlier trial to prove the statements were false, and it cannot simply offer the defendant’s statements alone.  9th Cir. Model Crim. Jury Inst. No. 8.137 (2010); citing United States v. Leon-Reyes, 177 F.3d 816, 819 (9th Cir. 1999) (introducing prior transcripts, persons that witnessed the prior proceeding, calling a member of the grand jury, and admitting summaries from a prior trial).

White collar cases frequently involve false statement charges.  This includes making a false statement to federal agencies (18 U.S.C. § 1001) and making a false statement to banks and lending institutions (18 U.S.C. § 1014).

Obstruction of justice describes general actions to impede governmental activities.[3]  These actions can spur criminal charges or serve as the basis for sentencing enhancements.    The U.S. Sentencing Guidelines state:

Numerous offenses of varying seriousness may constitute obstruction of justice: using threats or force to intimidate or influence a juror or federal officer; obstructing a civil or administrative proceeding; stealing or altering court records; unlawfully intercepting grand jury deliberations; obstructing a criminal investigation; obstructing a state or local investigation of illegal gambling; using intimidation or force to influence testimony, alter evidence, evade legal process, or obstruct the communication of a judge or law enforcement officer; or causing a witness bodily injury or property damage in retaliation for providing testimony, information or evidence in a federal proceeding. The conduct that gives rise to the violation may, therefore, range from a mere threat to an act of extreme violence.

U.S.S.G. § 2J1.2, cmt. “Background”.  In addition, U.S.S.G. § 3C1.1 enhances a federal sentence for “Obstructing or Impeding the Administration of Justice” in conjunction with other charged offenses.  This provision is frequently implemented when a defendant testifies at trial, is convicted, and the court determines that the defendant was untruthful regarding material matters in the case.   Dunnigansupra, 507 U.S. at 95-96.

Witness tampering applies to “official proceedings” in judicial, congressional, and executive forums, and includes the killing,[4] the use of force, threats,[5] deception, intimidation, corruption, destruction/concealment of evidence, and witness harassment to prevent production of evidence.  18 U.S.C. § 1512.   The Fifth and Ninth Circuit excluded Border Patrol and FBI investigations from this realm of conduct, whereas other circuits include it within the ambit of § 1512(c).  United States v. Ermonian, 727 F.3d 894, 898-902 (9th Cir. 2013); United States v. Ramos, 537 F.3d 439, 463-464 (5th Cir. 2008) (internal Border Patrol Agency investigation not an “official proceeding); cf. United States v. Burge, 711 F.3d 803, 810 (7th Cir. 2013) (police officer’s false responses in civil interrogatories regarding the use of torture were “official proceedings”).  In Ermonian, the Double Jeopardy Clause barred retrial because the government conceded it presented insufficient evidence on the obstruction of justice charge.  Id. at 902.

Obstructing federal courts, or the Omnibus Provision, prohibits interfering with “the due administration of justice”, which is a catchall provision.  18 U.S.C. § 1503; 9th Cir. Model Crim Jury Inst. No. 8.131 (2010).  Conspiracy charges related to § 1503 serve as RICO predicate offenses and thus money laundering predicate offenses.  18 U.S.C. §§ 1956(c)(7)(A), 1961; United States v. Connolly, 341 F.3d 16, 19-21 (1st Cir. 2003) (former FBI agent informed targets of RICO prosecution of pending indictment, news, sending letters to the trial judge, persuading witness to give false testimony, and lying to case agent).

Witness tampering (18 U.S.C. § 1512) and retaliation against a federal witness (18 U.S.C. § 1513) prohibit similar conduct, including:  murder and physical abuse of witnesses (committed, attempted, threatened, or conspired).  However, § 1513 also prohibits economic retaliation against federal witnesses in criminal matters.  The government must prove the intent to retaliate, but not the intent to carry out the threat.  United States v. Maggit, 784 F.2d 590, 593-594 (5th Cir. 1986).

Obstruction of congressional or administrative proceedings pertains to impeding civil investigative demands in antitrust cases.  18 U.S.C. § 1505.   The Ninth Circuit held that because the prosecution involved an agency proceeding, the only elements included (1) there was an agency proceeding; (2) the defendant knew of the proceeding; and (3) the defendant “intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.” United States v. Bhagat, 436 F.3d 1140, 1146 (9th Cir. 2006), quoting United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).  The government was not required to prove the elements from United States v. Aguilar, 515 U.S. 593 (1995), including:  (1) the false statements have the “natural and probable effect” of obstructing justice, and (2) the defendant was aware of this effect.  Bhagatsupra, 436 F.3d at 1447, quoting Aguilar at 599-601.  Section 1505 also applies to submitting false documents in response to an administrative subpoena.  United States v. Vixie, 532 F.2d 1277 (9th Cir. 1976) (per curiam).  Similarly, concealing documents sought in a subpoena violates § 1505.  United States v. Laurins, 857 F.2d 529, 536-537 (9th Cir. 1988).

Contempt of court criminalizes “misbehavior” in or near the court or its officers that interferes with the administration of justice, and disobedience or resistance to lawful court orders.   18 U.S.C. § 401.  Federal Rule of Criminal Procedure 42 provides for a jury trial on contempt charges, and any contempt committed in the presence of the judge may be summarily punished.   Perjury that obstructs the court in performance of its duty constitutes contempt.  In re Michael, 326 U.S. 224 (1945).   Contempt also includes refusal to provide testimony after an order of the court.  Brown v. United States, 359 U.S. 41 (1959), reh. den. 359 U.S. 976 (1959), overruled on other grounds in Harris v. United States, 382 U.S. 162 (1965); Collins v. United States, 269 F.2d 745 (9th Cir. 1959), cert. denied 362 U.S. 912 (1960); United States v. Cantillon, 309 F.Supp. 700 (C.D. Cal. 1970).  In Brown, the prosecutor notified the grand jury witness that the Fifth Amendment right against self-incrimination was inapplicable because the witness was immune to prosecution based on any testimony provided, which entitled the witness to a contempt trial because the refusal to answer did not occur in the presence of the court.  Brownsupra, 359 U.S. at 42-43, 50-51.

© 2014 Knut S. Johnson & Emerson Wheat.  May not be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

[1]See CRS Rept. 98-808, Perjury Under Federal Law: A Brief Overview, and CRS Rept. 98-832, Obstruction of Justice Under Federal Law: A Review of Some of the Elements.

[2] Materiality is a question of fact to be determined by the jury.  United States v. Johnson, 520 U.S. 461, 465-466 (1997).

[3] For a detailed analysis of obstruction-related charges and issues, see Charles Doyle, Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities, Congressional Research Service (Apr. 17, 2014).

[4] In Fowler v. United States, 131 S.Ct. 2045 (2011), the Supreme Court remanded to determine if there was a “reasonable likelihood” that defendant bank robbers committed witness tampering when they killed a police officer to prevent communication to federal officers, in violation of 18 U.S.C. § 1512(a)(1)(C).  Id. at 2048.

[5]United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (defendant threatened conspirator with physical harm if he cooperated with FBI investigation).

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