Perjury Uner Federal Law: A Sketch of the Elements

Perjury Under Federal Law: A Sketch of the
Charles Doyle
Senior Specialist
American Law Division
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. A closely related fourth law, 18
U.S.C. 1001 proscribes material false statements in any matter within the jurisdiction
of a federal agency or department. This report is an abbreviated version of CRS Report

98-808, Perjury Under Federal Law: A Brief Overview, stripped of most footnotes,

quotations, citations, and bibliography.
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.”
Perjury Under 18 U.S.C. 1623
“Congress enacted §1623 as part of the 1970 Organized Crime Control Act to
facilitate perjury prosecutions and thereby enhance the reliability of testimony before
federal courts and grand juries.” It nevertheless embodies most of the same basic perjury
elements (stripped of some of the technical requirements) and carries the same penalties
as the more traditional Section 1621. Parsed into elements, it 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 Code
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,” 18 U.S.C.

1623(a)(enumeration added).

In most cases, the courts abbreviate their description of the elements and state 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 of grand jury of the United States.”
The forum for the allegedly perjurious declaration must be 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, but the phrase “proceedings ancillary to” court or grand jury proceedings does
cover proceedings to take depositions in connection with civil litigation, as well as a
variety of pretrial proceedings in criminal cases, including bail hearings, venue hearings,
or suppression hearings.
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, applies with equal
force to perjury under Section 1623. Similarly, perjury cannot be the product of
confusion, mistake, or faulty memory, but must be a statement that the defendant knows
is false, 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. On the
other hand, a defendant cannot be guilty of perjury for a truthful answer to a reasonable
interpretation of an ambiguous question.
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.” This
definition is not easily applied to false statements made in civil depositions. In such
cases, one appellate court has recently described the lower federal courts as 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.” In any event, a statement is no
less material because it did not or could not divert the decisionmaker.
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.
Conviction does require 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 affidavit signed under penalty of perjury. Moreover, the statements must
be so inherently contradictory that one of them of necessity must be false.
Subsection 1623(e) permits a perjury conviction without compliance with the
traditional two witness rule. 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.” The two witness rule rests on a common law rather than a
constitutional foundation and consequently can be abrogated by statute which Congress
has done in subsection 1623(e) without offending constitutional principles.
In contrast to the other subsections of Section 1623, subsection 1623(d) offers a bar
to prosecution of those accused of perjury under the section. 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,” 18 U.S.C.
1623(d). Although phrased in different terms, the courts seem to agree that repudiation
of the false testimony must be specific and thorough.
Perjury Under 18 U.S.C. 1621
Section 1621 was “enacted in an effort to keep the course of justice free from the
pollution of perjury.” 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. In many instances,

it affords greater protection than Section 1623. It prohibits perjury before official
proceedings — both judicial and nonjudicial. Separated into its elements, the section
provides that:
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

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
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
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,” 18
U.S.C. 1621 (enumeration added).
The courts generally favor the abbreviated encapsulation from 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.”
Testimony that is literally true , even if deceptively so, cannot be considered false
for purposes of a prosecution under Section 1621. On the other hand, under either Section
1621 or Section 1623 the false statement may consist of testimony that the witness does
not remember or does not know when the evidence clearly demonstrates that he does.
The test for materiality under Section 1621 is the same as it is under Section 1623
— “whether the false statement has a natural tendency to influence or [is] capable of
influencing the decision required to be made.”
Conviction under Section 1621 requires not only that the defendant knew his
statement was false (“which he does not believe to 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.” Other courts have referred to it as acting
with an “intent to deceive” or as acting “intentionally.”
Subornation of Perjury
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, but commission of an act of
perjury is a necessary element of subornation. 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.
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. 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, imprisoned not more
than 8 years if the offense involves international or domestic terrorism (as defined in
section 2331) or 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).
The courts’ description of the elements will ordinarily be limited to whichever of the
forms of misconduct – false statement, concealment, or false documentation – is
implicated in the particular case. In addition, Section 1001 imposes a limitation upon an
offense that involves matters within the jurisdiction of either the judicial or legislative
(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).
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 agency or department from matters
peripheral to the business of that body.” 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. 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, or by a
defendant for a probation officer’s presentence report; but not statements made by one on
supervised release to a parole officer.
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 entity nor that he intended to defraud a federal entity.
Instead, 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.” 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.” There is no need to show that the
decision maker was in fact diverted or influenced.
Conviction for false statements or false documentation under Section 1001 also
requires that the statements or documentation be false, that they not be true. 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. 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.” 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.