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With the indictment of I. Lewis “Scooter” Libby for perjury at the end of October 2005, much attention has been paid to the crime of perjury. At its simplest, perjury is lying under oath. This crime is often associated with false statements and obstruction of justice prosecutions.

18 U.S.C. § 1621 (2007)

The Crime It is a crime under section 1621 for a person to 
take an oath that he will testify, declare, depose, or certify truly contrary to such oath state any material matter which he does not believe to be true; or 
in any declaration, certificate, verification, or statement under penalty of perjury, willfully subscribes as true any material matter which he does not believe to be true.

The Punishment The punishment for a violation of section 1621 is 
a fine, imprisonment for up to 5 years, or both.

Case Law Interpreting Section 1621 A defendant can be found guilty of perjury if a jury could find beyond reasonable doubt from evidence presented that he knew what the question meant and gave knowingly untruthful and materially misleading answers in response, since the crime of perjury depends not only upon clarity of questioning itself, but also upon knowledge and reasonable understanding of testifier as to what is meant by questioning. United States v DeZarn, 157 F.3d 1042 (6th Cir. 1998).

Put a different way, a witness “who testifies under oath or affirmation commits perjury when he ‘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).

Furthermore, the defendant's perjury conviction cannot be sustained unless his false testimony was material. In a case that relates to committing perjury before a grand jury (which can be prosecuted under 18 U.S.C. § 1623, infra) the defendant was charged with violating section 1621, but the court noted that his conviction could not be sustained unless his false testimony was material to the grand jury's investigation. United States v. Lococo, 450 F.2d 1196, 1198-99 (9th Cir. 1971). However, “[f]alse testimony before a grand jury is material if it ‘has a natural tendency to influence the Grand Jury in its investigation'; the Government need not prove that the perjured testimony actually impeded the investigation.” Id. at 1199 (citations omitted). Materiality is determined by its relevancy to either the primary subject of the investigation or to “any subsidiary issue under consideration by the tribunal.”

18 U.S.C. § 1962 (2007)

The Crime Subornation of Perjury is likewise a crime. Under section 1622, it is a crime to procure another person to commit any perjury.

The PunishmentThe punishment for suborning perjury is 
a fine, imprisonment for up to 5 years, or both.

Case Law Interpreting Section 1622 There are two elements to subornation: there must be the procurement of perjury, and there must be actual perjury. Without actual perjury, there can be no subornation. See United States v Brumley, 560 F.2d 1268 (5th Cir. 1977); United States v Slawik, 408 F. Supp 190 (D. Del. 1975). That said, it is not outside the realm of possibility for an industrious prosecutor to bring charges under the conspiracy statute, 18 U.S.C. § 371, for a conspiracy to commit subornation of perjury in the event that no actual perjury was committed. See, e.g, United States v. Ruhbayan, 406 F.3d 292 (4th Cir. 2005) (defendant indicted for conspiracy to commit perjury and obstruction of justice).

The second prong of subornation, the procurement, is a little more complicated. In essence, procurement is intending to have some lie under oath, and then doing something that would suggest that that person lied at the behest of the procurer. For example, a nod of the head during a witness's testimony at trial has been found to be subornation. United States v. Flint, No. 92-50554 at *5-*6 (9th Cir. 1993).

18 U.S.C. § 1623 (2007)

The CrimeSection 1623 involves committing perjury to a grand jury, and this is the statute under which “Scooter” Libby has been charged. Under this section it is a crime for a person to be under oath in any proceeding before any court or grand jury and make any false material declaration or use any information knowing it contains false material declarations. 18 U.S.C. § 1623(a).

The Punishment The punishment for a violation of section 1623(a) is 
a fine, imprisonment for up to 5 years, or both.
Case Law Interpreting Section 1623 The analysis of a prosecution for perjury before a grand jury is substantially the same as perjury under section 1621. However, one case in particular nicely presents the elements that are required to be proven to sustain a conviction for perjury before a grand jury. The essential elements of perjury are that 
the declarant must be under oath,

the testimony must have been given in a proceeding before a court of the United States, 
the declarant must have knowingly made a false statement and 
the statement must be material to the proceeding before the court. United States v. Simone, 627 F. Supp. 1264, 1267-68 (D.N.J. 1986).

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