False Statements and Perjury: An Overview of Federal Criminal Law

Updated October 8, 2024

Summary

Federal courts, Congress, and federal agencies rely upon truthful information in order to make informed decisions. Federal law therefore proscribes providing the federal courts, Congress, or federal agencies with false information. The prohibition takes four forms: false statements; perjury in judicial proceedings; perjury in other contexts; and subornation of perjury.

Section 1001 of Title 18 of the United States Code, the general false statement statute, outlaws material false statements in matters within the jurisdiction of a federal agency or department. It reaches false statements in federal courts and federal grand jury sessions as well as congressional hearings and administrative matters but not the statements of advocates or parties in court proceedings. Under § 1001, a statement is a crime if it is false, regardless of whether it is made under oath.

In contrast, an oath is the hallmark of the three perjury statutes in Title 18. The oldest, §1621, condemns presenting material false statements under oath in federal official proceedings. Section 1623 of the same title prohibits presenting material false statements under oath in federal court proceedings, although it lacks some of §1621's traditional procedural features, such as a two-witness requirement. Subordination of perjury, barred in §1622, consists of inducing another to commit perjury.

All four sections carry a penalty of imprisonment for not more than five years, although §1001 is punishable by imprisonment for not more than eight years when the offense involves terrorism or one of several federal sex offenses. The same five-year maximum penalty attends the separate crime of conspiracy to commit any of the four substantive offenses.

A defendant's false statements in the course of a federal criminal investigation or prosecution may also result in an enhanced sentence under the U.S. Sentencing Guidelines for the other offenses that were the subject of federal investigation or prosecution.

Introduction

Federal criminal law features four general statutes that proscribe providing false information in matters relating to the federal government. One statute, 18 U.S.C. § 1001, proscribes false statements in matters within the jurisdiction of a federal agency or department. A second, 18 U.S.C. § 1621, condemns perjury with respect to any matter in federal law given under oath or penalty of perjury. The third, 18 U.S.C. § 1623, outlaws false declarations before federal grand juries or courts. The fourth, 18 U.S.C. § 1622, criminalizes inducing another to commit a federal perjury offense. Finally, conspiracy to commit any of these underlying crimes is a separate federal crime. Moreover, a defendant under investigation or on trial for some other federal offense may find upon conviction his sentence for the underlying offense enhanced as a consequence of a false statement made during the course of the investigation or trial. This report provides an overview of these false statement and perjury provisions.

False Statements (18 U. S. C. § 1001)

The principal federal false statement statute, 18 U.S.C. § 1001, proscribes false statements, concealment, or false documentation in any matter within the jurisdiction of any of the three branches of the federal government. It applies generally within the executive branch. Within the judicial branch, it applies to all but presentations to the court by parties or their attorneys in judicial proceedings. Within the legislative branch, it applies to administrative matters such as procurement, as well as to “any investigations and reviews, conducted pursuant to the authority of any committee, subcommittee, commission, or office of the Congress consistent with applicable rules of the House or Senate.”

In outline form, § 1001(a) states:

1. “Except as otherwise provided in this section,” Ⅱ. "whoever"

3. “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,”

4. “knowingly and willfully—" i. “falsifies, conceals, or covers up by any trick, scheme, or device a material fact;”

2. “makes any materially false, fictitious, or fraudulent statement or representation; or” 3. “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;”

5. “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 109 A [sexual abuse], 109 B [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.”

Elements

Whoever

The Dictionary Act provides that “in determining the meaning of any Act of Congress, unless the context indicates otherwise... the word... 'whoever' include [s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals...” “Includes” is usually a “but-not-limited-to” word. As a general rule, use of the word “includes” means that the list that it introduces is illustrative rather than exclusive. Corporations have been convicted for violating

Within the Jurisdiction

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 an 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 relating to matters that involve federal funds or regulations.

Section 1001(b) creates an exception, a safe harbor for statements, omissions, or documentation presented to the court by a party in judicial proceedings. The exception covers false statements made to the court even if they result in the expenditure of executive branch efforts. The exception also includes false statements of indigency filed by a defendant seeking the appoint of counsel, and perhaps a defendant's false statement in a probation officer's presence report, but not false statements made to his probation officer otherwise.

Section 1001's application to matters within the jurisdiction of the legislative branch is confined to two categories of false statements. One proscribes false statements in matters of legislative branch administration and reaches false statements made in financial disclosure statements. The other proscribes false statements in the course of congressional investigations and reviews, but does not reach false statements made concurrent to such investigations or reviews.

Knowingly and Willfully

Section 1001 requires the government to prove that the defendant acted “knowingly and willfully.” It requires 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. 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 within his documentation, that is, “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.” Although the offense can only be committed “knowingly and willfully,” that is, with the knowledge that it was unlawful, the prosecution need not prove that the defendant knew that his conduct involved a “matter within the jurisdiction” of a federal entity, or that he intended to defraud a federal entity.

Materiality

Prosecution for a violation of § 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 decision [-] making body to which it is addressed.” There is no need to show that the decision maker was in fact diverted or influenced.

Concealment, False Statements, and False Writings

Section 1001's false statement element is in fact three alternative elements that encompass concealment, false statements, and false writings.

Subsection 1001(a)(1) (concealment) applies to anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact.” Although the requirement does not appear on the face of the statute, prosecutions under § 1001(a)(1) for concealment must also prove the existence of a duty or legal obligation not to conceal. A federal employee's general ethical obligation to “disclose waste, fraud, abuse, and corruption to appropriate authorities,” however, will “not support a conviction under § 1001(a)(1).”

Subsection 1001(a)(2) (false statements) applies to anyone who “makes any material false, fictitious, or fraudulent statement or representation.” Conviction requires that the defendant knew that his statement or documentation was false, that is, it was not true. It follows that a defendant's response to a question that is fundamentally ambiguous cannot provide the basis for a conviction under § 1001(a)(2).

Subsection 1001(a)(2) recognizes few defenses other than the government's failure to prove one or more of its elements. For instance, “there is no safe harbor for recantation or correction of a prior false statement that violates [§] 1001.” Nevertheless, momentary corrections and perhaps longer lapses of time between the statement and correction may undermine proof of the materiality (natural tendency to influence a decision-maker) necessary for conviction.

Under an earlier version of § 1001, several lower federal courts recognized an “exculpatory no” doctrine under which § 1001 did not reach a defendant's simple false denial to a law enforcement officer's incriminating question. The Supreme Court repudiated the doctrine “ [b] ecause the plain language of [then] § 1001 admits of no exception for an 'exculpatory no'….” Defendants have been largely unable to bring about recognition of an exculpatory no doctrine under § 1001's current language, although the section's breadth occasionally seems to cause judicial discomfort and Justice Department policy recognizes something akin to an exception.

Subsection 1001(a)(3)(written false statements) covers written false statements and applies to anyone who “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.” To establish a violation of § 1001(a)(3), the government must prove the defendant “rendered a statement that: (1) is false, (2) is material, (3) is knowingly and willfully made, and (4) concerns a matter within the jurisdiction of a federal” entity.

Consequences

Violations of § 1001 are punishable by imprisonment for not more than five years or not more than 8 years if violation involves international or domestic terrorism or the matter relates to any of several federal sex offenses. In any event, violations are also punishable by the greater of a fine of not more than 250,000 (not more than 500,000 for organizational defendants) or twice the gain or loss associated with the offense. In limited circumstances, violations may lead to forfeiture if the victim is a financial institution.

The federal Sentencing Guidelines govern the sentence a court may impose beneath any statutory maximums. The Guideline for § 1001 offenses is U.S.S.G. § 2 B 1.1 (U.S.S.G. § 2 J 1.2 when the maximum penalty is eight years). The § 2 B 1.1 Guideline sentencing range may be adjusted either by virtue of the amount of loss associated with the offense or by application of a cross reference to another guideline.

When the actual or intended loss associated with the offense is more than 6,500, § 2 B 1. 1(b)(1) calls for application of a sliding scale sentencing level increases up to the addition of thirty sentencing levels if the amount of the loss exceeds 550 million. The Guidelines permit a court to use of amount of gain in lieu of the amount of loss only when the amount of the loss is otherwise undeterminable.

Section 2 B 1. 1(c)(3) provides for the application of a different Guideline when a defendant is convicted of violating § 1001 and “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline.” The cross reference requires that the false statement constitute the offense covered by the referenced Guideline. Section 2 B 1. 1(c)(2), in contrast, calls for application by cross reference of the arson Guideline when the false statement “involves” rather than “establishes” arson.

The § 2 J 1.2 Guideline applies a higher base offense level than the § 2 B 1.1 Guideline (fourteen v. six offense levels) and includes enhancements when the false statement relates to various sex or terrorism offenses.⁵¹ Subject to statutory maximums, the Sentencing Guidelines provide a sliding scale of minimum and maximum fines for individual defendants and maximum fines for organizations, based on the offense level for the offense of conviction.

Perjury Generally (18 U. S. C. § 1621)

Testimonial Perjury Generally (18 U. S. C. § 1621(1))

There are three primary federal perjury statutes. Each involves a statement or writing offered under oath or its equivalent. One proscribes two forms of perjury generally. A second proscribes perjury before a court or grand jury. A third proscribes subornation of perjury which consists of inducing someone else to commit perjury.

Section 1621 is the first of these and consists of two offenses, one for testimony and the other written statements. The testimonial proscription provides:

1. “Whoever having taken an oath”

2. “before a competent tribunal, officer, or person,”

3. “in any case in which a law of the United States authorizes an oath to be administered,”

4. a) "that he will"

1. “testify,”

2. “declare,”

3. "depose, or"

4. “certify truly, or”

b) "that any written"

5. “testimony,”

6. “declaration,”

7. “deposition, or”

8. “certificate”

5. “by him subscribed, is true,”

6. “willfully and contrary to such oath”

1. “states or”

2. “subscribes as true any material matter which he does not believe to be true;”

7. “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.”

The courts generally favor an abbreviated encapsulation such as the one the Supreme Court provided 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.”

Whoever

The term “whoever” ordinarily encompasses individuals as well as entities, such as corporations, unless the context of the statute in which the term is used suggests a contrary congressional intent. As a general rule, a corporation is liable for the crimes of its employees, officers, or agents committed within the scope of their authority and at least in part for the benefit of the corporation. Corporations have been convicted for false statements under § 1001, as noted earlier, but rarely if ever under § 1621(1).

Willfully

Conviction under § 1621(1) 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.” Other courts have referred to willful perjury as acting with an “intent to deceive” or as acting “intentionally.” In the case of a violation of § 1001, one court has pointed to the general statement from the Supreme Court that “willfully” means the defendant acted with the knowledge his conduct was unlawful. Be that as it may, the prosecution must show that the defendant believed that his statement was not true in order to convict him of § 1621(1) perjury.

Having Taken An Oath

Section 1621(1), in so many words (“whoever having taken an oath”), reaches sworn written or oral testimony presented to a federal tribunal, officer, or person.

False

Truth and Ambiguity

Perjury under § 1621(1) condemns testimony that is false. The Supreme Court in Bronston v. United States explained that testimony that is literally true, even if deceptively so, cannot be considered perjury for purposes of a prosecution under § 1621(1).⁶⁷ Bronston testified at a bankruptcy hearing at which he was asked if he had a Swiss bank account.⁶⁸ He truthfully answered that he did not.⁶⁹ Then, he was asked if he had ever had a Swiss bank account, which he had.⁷⁰ He answered that his company had had such an account at one time, which was true but not responsive to the question of had he ever had an account.⁷¹ Yet, he was convicted for violating § 1621(1) on the basis of that answer.⁷² The Supreme Court's final comment in the decision that threw out the conviction observed, “It may well be that [Bronston'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.”

The Court's comment suggests that § 1621(1) perjury may not be grounded on an ambiguous question. The lower federal appellate courts have not always been willing to go that far. True, “when a line of questioning 'is so vague as to be fundamentally ambiguous, the answers associated with the questions posed may be insufficient as a matter of law to support a perjury conviction.'” Yet, as one court stated, “our Court has 'eschewed a broad reading of Bronston,' noting instead that, 'as a general rule, the fact that there is some ambiguity in a falsely answered question will not shield the respondent from a perjury … prosecution.'” Moreover, the line between permissible ambiguity and impermissible fundamental ambiguity is not easily drawn.

Some courts have concluded that “to precisely define the point at which a question becomes fundamentally ambiguous... is impossible.”

Two-Witness Rule

Section 1621(1) requires compliance with the common law “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.” Thus, conviction under § 1621(1) compels the government to “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.” 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.

Materiality

“To be guilty of perjury under 18 U.S.C. § 1621(1), a defendant's false statement must be material.” A false statement is “material in a criminal prosecution for perjury under § 1621(a) if it is material to any proper matter of the decisionmaker's inquiry,” that is, “if it is capable of influencing the tribunal on the issue before it.” A false statement is no less material because the decisionmaker was not taken in by the statement.

Defenses

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 § 1623, recantation is no defense nor does it bar prosecution under § 1621(1).

False Writings as Perjury Generally (18 U. S. C. § 1621(2))

Congress added § 1621(2) to the general perjury statute in 1976 in order to dispense with the necessity of an oath for various certifications and declarations.

Section 1621(2) states:

1. "Whoever"

Ⅱ. "in any"

1. “declaration,”

2. “certificate,

3. “verification, or”

4. “statement”

3. “under penalty of perjury as permitted under [§] 1746 of title 28, United States Code,”

4. “willfully subscribes as true”

4. “any material matter”

5. “which he does not believe to be true”

6. “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.”

As in the case of violations under § 1621(1), § 1621(2) proscriptions apply in theory with equal force to corporations and other entities as well as to individuals, but in practice prosecutions appear to be confined to individuals.

Section 1621(2) operates as an enforcement mechanism for § 1746, which affords an underpenalty-of-perjury option wherever a federal statute or regulation requires a written statement under oath. Section 1746 is available regardless of whether the triggering statute or regulation seeks to ensure the validity of a written statement or the identity of its author.

Section 1621(2) only proscribes material false statements in unsworn writings (i.e., a statement “capable of influencing or misleading a tribunal on any proper matter of inquiry”).

Perjury in a Judicial Context (18 U. S. C. § 1623)

Congress enacted § 1623 to avoid some of the common law technicalities embodied in the more comprehensive perjury provisions found in § 1621 and thus “to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries.” Unlike § 1621, § 1623 permits a conviction in the case of two mutually inconsistent declarations without requiring proof that one of them is false. It recognizes a limited recantation defense. It dispenses with the so-called two-witness rule. And, it employs a “knowing” mens rea standard rather than the more demanding “willfully” standard used in § 1621.

Parsed into elements, § 1623 declares that:

1. “Whoever”

2. a) "under oath or"

a. "in any"

b. “declaration,”

c. “certificate,”

d. “verification, or”

e. “statement”

3. “under penalty of perjury as permitted under [§] 1746 of title 28, United States Code”

4. “in any proceeding before or ancillary to”

a. “any court or”

b. “grand jury of the United States”

5. "knowingly"

a. “makes any false material declaration or”

b. “makes or uses any other information, including any”

1. "book,"

2. "paper,"

3. “document,”

c. "record,"

d. “recording, or”

e. “other material,”

6. “knowing the same to contain any false material declaration,”

7. “shall be fined under this title or imprisoned not more than five years, or both.”

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.”

Whoever

Again, the Dictionary Act defines the term “whoever” to encompass individuals as well as entities, such as corporations, unless the context of the statute in which the term is used suggests a contrary congressional intent. A corporation, as a general matter, is liable for the crimes of its employees, officers, or agents committed within the scope of their authority and at least in part for the benefit of the corporation. Corporations have been convicted for false statements under section 1001, as mentioned earlier, but rarely if ever under section 1623.

Under Oath or Its Equivalent: Court or Grand Jury

Section 1623 reaches both false statements under oath and those offered under penalty of perjury by operation of 28 U.S.C. section 1746. The allegedly perjurious statement must be presented in a proceeding before or ancillary to any court or grand jury of the United States. An interview in an attorneys 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 proceedings in criminal cases, including habeas proceedings, bail hearings, venue hearings, supervised release revocation hearings, and suppression hearings.

False or Inconsistent

The Supreme Court's observation that a statement that is misleading but literally true cannot support a conviction under § 1621 because it is not false applies with equal force to perjury under § 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] 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. Yet ambiguity will be of no avail if the defendant understands the question and answers falsely nevertheless.

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 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 affidavit signed under penalty of perjury. Moreover, the statements must be so inherently contradictory that one of them of necessity must be false.

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.” Because the two-witness rule rests on the common law rather than on a constitutional foundation, it may be abrogated by statute without offending constitutional principles. Subsection 1623(e) permits a perjury conviction without compliance with this traditional two-witness rule.

Materiality

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 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."

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. In any event, a statement is no less material because it did not or could not divert the decisionmaker.

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 before the grand jury for the sole purpose of eliciting perjurious testimony from him. 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, because the government is usually able to identify some valid reason for the grand jury's inquiries.

Defenses

Most of the other subsections of § 1623 are designed to overcome obstacles that 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.” Although phrased in different terms, the courts seem to agree that repudiation of the false testimony must be specific and thorough. There is some disagreement whether a recanting defendant must be denied the defense if both the substantial impact and imminent 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.

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. One more recent appellate decision, however, concluded 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. Even without the operation of § 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.

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.” The crime consists of two elements – (1) an act of perjury committed by another (2) induced or procured by the defendant. Perjury under either §§ 1621 or 1623 will support a conviction for subornation under § 1622, but proof of the commission of an act of perjury is a necessary element of subornation. Nevertheless, the perjury two-witness rule does not apply in a case 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 § 1621 one must also knowingly and willfully induce. Subornation is only infrequently prosecuted as such 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 1512 which, unlike § 1622, do not insist upon suborner success as a prerequisite to prosecution.

Consequences

Sections 1621, 1622, and 1623 are each punishable by imprisonment for not more than five years and a fine of the greater of not more than 250,000 (not more than 500,000 for an organization) or twice the loss or gain associated with the offense. The applicable Guideline is U.S.S.G. section 2 J 1.3 which calls for the application of the greater of sentencing under its provisions or those of the cross-referenced Guideline. The Section provides a base offense level of fourteen with enhancements for a substantial interference with the administration of justice and in the case of subornation for causing or threatening physical injury or property damage. In the alternative, sentencing is governed by Guideline by cross reference to the Guidelines for accessories after the fact which is pegged at six offense levels below that the offense of complicity up to thirty offense levels.

The amount of permissible fines are governed by the Guidelines for individual and organizational fines applicable to the final offense level.

Conspiracy (18 U. S. C. § 371)

Section 371 reaches conspiracies “either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner...” Consequently, conspiracy and perjury/false statements intersect twice. Once, where § 371 proscribes any collusion to violate §§ 1001, 1621, 1622, or 1623. And again where § 371 condemns a scheme to defraud the United States, that is to frustrate the functions of government by “deceit, craft or trickery,” for example by perjury or false statements.

in either case, the government must prove:" (1) agreement between two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in that agreement by the defendant; and (3) an overt act in furtherance of the agreement." Conspiracy under § 371 is punishable by imprisonment for not more than five years. Conspiracy is a separate crime, and offenders may be punished for conspiracy, as well as for the commission of the crime that is the object of the offense, and for any crime committed in the foreseeable furtherance of the plot.

Accomplices

Section 2 of Title 18 of the United States Code visits principal liability upon anyone who induces, commands, or aids and abets a federal offense committed by another. So it is with section 1001. Inducing another to commit perjury in violation of either sections 1621 or 1623 is subornation.

Perjury as a Sentencing Factor (U. S. S. G. § 3 C 1.1

Perjury, subornation of perjury, and false statements are each punishable by imprisonment for not more than five years. They are also punishable by a fine of not more than 250,000 (not more than $500,000 if the defendant is an organization). When the defendant is convicted of a crime other than perjury or false statements, however, perjury or false statements during the investigation, prosecution, or sentencing of the defendant for the underlying offense will often be treated as the basis for enhancing his sentence by operation of the obstruction of justice guideline of the U.S. Sentencing Guidelines (U.S.S.G. § 3 C 1.1.

Federal sentencing begins with, and is greatly influenced by, the calculation of the applicable sentencing range under the Sentencing Guidelines. The Guidelines assign federal felony offenses 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 forty-three 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 fifteen means a sentencing range of from eighteen to twenty-four months in prison for a first time offender (criminal history category 1) and from forty-one to fifty-one months for a defendant with a very extensive criminal record (criminal history category 6). Two levels higher, at a final offense level of seventeen, the range for first time offenders is twenty-four to thirty months; and fifty-one to sixty-three months for the defendant with a very extensive prior record. Depending on the final offense level otherwise applicable to a particular crime, the impact of a two-level increase spans from no impact at the lowest final offense levels to a difference of an additional sixty-eight months at the highest levels.

Section 3 C 1.1 instructs sentencing courts to add two offense levels in the case of an obstruction of justice:

If (1) 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 (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The accompanying commentary explains that the section “is not intended to punish a defendant for the exercise of a constitutional right.” 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.” Early on, the Supreme Court made it clear that an individual's sentence might be enhanced under § 3 C 1.1, if he committed perjury during the course of his trial. 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:

(A) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;

(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;

(C) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding;

(D) destroying or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding... however, if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substances) it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it results in a material hinderance to the official investigation or prosecution of the instant offense or the sentencing of the offender;

(E) escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding;

(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 presence or other investigation for the court; [and]

(I) other conduct prohibited by obstruction of justice provisions under Title 18, United States Code;

(J) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C. § 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. § 8543(p) [each relating to forfeiture];

(K) threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction.

The commentary provides a corresponding list of examples of where the enhancement does not apply:

(A) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense;

(B) making false statements, not under oath, to law enforcement officers, unless Application Note 4 G above applies;

(C) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presence investigation;

(D) avoiding or fleeing from arrest;

(E) lying to a probation or pretrial services officer about defendant's drug use while on pretrial release, although such conduct may be a factor in determining whether to reduce the defendant's sentence under § 3 E 1.1 (Acceptance of Responsibility).

If a sentencing court seeks to impose the enhancement for perjury it must find “by a preponderance of the evidence that the defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving false testimony (c) as to a material matter.”

When perjury provides the basis for a sentencing enhancement under the section, the court must find that the defendant willfully testified falsely with respect to a material matter. Thus, the court must find that “the defendant consciously act [ed] with the purpose of obstructing justice.” When based upon a false statement not under oath, the statement must still be material, that is, it must “tend to influence or affect the issue under determination.” 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.

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