The courts have applied the same test of "materiality" in section 1623 prosecutions as is used in section 1621 43 It is sufficient if the untrue perjury prosecutions. testimony has a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its Section 1623 (e) allows conviction upon the evidence 44 of a single witness. E. Direct Evidence Rule Section 1623 (e) allows proof by any type of admissible evidence, including circumstantial evidence. 45 43 See United States v. Devitt, 499 F.2d 135 (7th Cir. 1974), cert. denied, 95 S. Ct. 1974 (1975); United States v. Mancuso, 485 F.2d 275 (2d Cir. 1973). 44 United States v. Isaacs, 493 F.2d 1124 (7th Cir.) cert. denied, Kerner v. United States, 417 U.S. 976 (1974). This is not unconstitutional. United States v. Camporeale, 515 F.2d 184 (2d Cir. 1975). 45 United States v. Chapin, 515 F.2d 1274 (D.C. Cir. Section 1623 (d) provides a right to a witness to recant, a bars any perjury prosecution, if the declaration is admitted to be false in the same continuous proceeding and if, at the time the admission is made, the false declaration a. has not substantially affected the proceeding, b. and it has not become manifest that such falsity has been or will be exposed. This right to recant applies both to trials and grand jury proceedings, but in no case is the witness entitled to be warned of his right to recant. 3. 46 Subornation of Perjury: Title 18 U.S.C. Section 1822 This section includes both procuring another to commit perjury, as defined in section 1621, but also procuring another to make false statements before a congressional hear 46 United States v. Del Toro, 513 F.2d 656 (2d Cir. 1975); United States v. Cuevas, 510 F.2d 848 (2d Cir. 1975); United States v. Lardieri, 506 F.2d 319 (3d Cir. 1974); United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied, 417 U.S. 968 (1974). ing, as defined in section 1623. 47 To make out a charge of subornation, the false statement crime of section 1623 or the perjury of section 1621 must in fact have been 48 committed. 47 United States v. Gross, 511 F.2d 910 (3d Cir. 1975). Since the two-witness rule was abrogated in prosecutions for false declarations before a grand jury or court by section 1623, the rule does not apply in prosecutions for subornation of false declarations. 48 United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949 (1972). An interesting sort of "subornation" of perjury was at issue in the recent Second Circuit case of Washington v. Vincent, 18 Crim. L. Rptr. 2221-2222 (November 5, 1975). There a prosecutor had made a promise to a witness about getting charges against him dropped. At trial, as the prosecutor stood silently by, the witness falsely swore that no deal had been made. The court held this to be grounds for federal habeas corpus relief, despite the failure of the defendant and his counsel to challenge what they had reason to know was false testimony. The court said: The knowing use by a State prosecutor of perjured Q. Did you own it outright or did others have a Chairman: A. which I promised not to disclose. Are you refusing to answer based on a privilege? Yes. My attorney advises me that the question concerns a confidential business matter between me and the others who invested. Chairman: That is not a proper privelege. A. The objection is overruled and the witness is ordered to answer. On the advice of counsel that to answer would be A. Q. A. What happened to the tape? Well, it's a fairly odd story. We were making Was a summary ever made? No. III. Q. A. Q. A. Q. A. Was your trip to Dallas a matter of business Pleasure. Yet you paid for your plane ticket with a check drawn on your business account? I didn't have sufficient funds in my personal account. I was going to straighten it out later. Why were you in Dallas that day? I had a lunch meeting to attend with some clients from the Pepsi Cola account. Q. Did you pick up the bill for the lunch? |