Perjury CasesSpecial Problems and Defenses --
The government has discretion concerning how to charge separate but
related false statements. Under common law, because the offense was making
false oath, a witness would be guilty of only one offense even though making
variety of false statements. Courts now, however, consider the false
as the offense. A false statement may violate two separate statutes and
basis for two charges if the proof of one count requires an additional fact
proof of the other does not. Blockburger v. United States, 284 U.S.
304 (1932); United States v. Roberts, 783 F.2d 767, 769 (9th Cir.
1986)(bankruptcy concealment and perjury counts not multiplicitous). A
indictment is not multiplicitous, i.e., in violation of the Double Jeopardy
Clause, if it contains charges for separate and distinct false declarations
if the declarations are related and arise out of the same transaction or
matter as long as they require different factual proof of falsity.
States v. Harrelson, 754 F.2d 1182, 1184 (5th Cir. 1985); United
v. Williams, 552 F.2d 226, 228 (8th Cir. 1977).|
All of the false declarations pertaining to a particular subject
be embraced in one count. Proof of the falsity of any one statement charged
then sustain the count; however, when two separate offenses are included in
count, duplicity occurs, and the jury may be required to indicate by special
verdict the false statement or statements upon which it unanimously agreed.
United States v. Holley, 942 F.2d 916, 928-29 (5th Cir. 1991)(perjury
convictions on two counts reversed because district court failed to give
defendant's requested "specific unanimity instruction"). If the government
proceeding on the irreconcilable inconsistency theory, unanimity is not
since the government need not prove which statement is false. United
v. Bellrichard, 62 F.3d 1046, 1049 (8th Cir. 1995), cert. denied,
S.Ct. 1425 (1996)(18 U.S.C. § 876 prosecution).The indictment must set
the precise falsehoods alleged and the factual basis of their falsity with
sufficient clarity to permit a jury to determine their verity and to allow
meaningful judicial review. The materiality element of the offense may be
satisfied if facts pleaded in the indictment warrant an inference of
United States v. Duran, 41 F.3d 540, 544 (9th Cir. 1994). The better
practice, however, is to allege materiality expressly.
[cited in USAM 9-69.200]