1755. Perjury Cases -- Special Problems And Defenses -- Charging Considerations

The government has discretion concerning how to charge separate but related false statements. Under common law, because the offense was making a false oath, a witness would be guilty of only one offense even though making a variety of false statements. Courts now, however, consider the false statement as the offense. A false statement may violate two separate statutes and form the basis for two charges if the proof of one count requires an additional fact that proof of the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. Roberts, 783 F.2d 767, 769 (9th Cir. 1986)(bankruptcy concealment and perjury counts not multiplicitous). A perjury indictment is not multiplicitous, i.e., in violation of the Double Jeopardy Clause, if it contains charges for separate and distinct false declarations even if the declarations are related and arise out of the same transaction or subject matter as long as they require different factual proof of falsity. United States v. Harrelson, 754 F.2d 1182, 1184 (5th Cir. 1985); United States v. Williams, 552 F.2d 226, 228 (8th Cir. 1977).

All of the false declarations pertaining to a particular subject may be embraced in one count. Proof of the falsity of any one statement charged will then sustain the count; however, when two separate offenses are included in one 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 is proceeding on the irreconcilable inconsistency theory, unanimity is not required, since the government need not prove which statement is false. United States v. Bellrichard, 62 F.3d 1046, 1049 (8th Cir. 1995), cert. denied, 116 S.Ct. 1425 (1996)(18 U.S.C. § 876 prosecution).The indictment must set forth 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 materiality. United States v. Duran, 41 F.3d 540, 544 (9th Cir. 1994). The better practice, however, is to allege materiality expressly.

[cited in JM 9-69.200]