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Chapter 13: Crimes against the Government

Bribery, of course, connotes a voluntary offer to obtain gain, where extortion connotes some form of coercion.

—U.S. v. Adcock, cited in Section 13.3.2 “Bribery Elements”

Source: Image courtesy of Tara Storm.

Chapter 13: Learning Objectives

Define federalism.

Ascertain the sections of the Constitution that give Congress regulatory authority.

Ascertain the basis for Congress’s authority to enact criminal laws.

Compare federal regulatory authority with state regulatory authority.

Compare federal criminal laws with state criminal laws.

Define federal supremacy.

Compare federal and state courts.

Define jurisdiction.

Compare original and appellate jurisdiction.

Identify the federal courts and determine each court’s jurisdiction.

Identify the state courts and determine each court’s jurisdiction.

Define the burden of proof.

Distinguish between the burden of production and the burden of persuasion.

Compare the civil and criminal burden of proof.

Compare inference and presumption.

Compare circumstantial and direct evidence.

13.1 Crimes Involving National Security

The government is tasked with keeping the nation safe from domestic and international attacks on the government and citizens. National security is an issue that affects the entire country, so most of the regulation in this area is federal, rather than state (Pennsylvania v. Nelson, 2011). Criminal statutes protecting the government can encroach on the individual freedom to protest government action and can also affect privacy interests, which subjects them to enhanced constitutional scrutiny similar to the crimes against the public reviewed in Chapter 12 “Crimes against the Public”. This section explores crimes against the nation, such as treason, sedition, sabotage, and espionage. Section 13.2 “Crimes Involving Terrorism” examines terrorism and the USA PATRIOT Act. The last section of this chapter discusses other crimes against the government that are primarily state regulated, suchas perjury, bribery, and obstruction of justice.

13.1 Crimes Involving National Security - Treason

Article III § 3 of the US Constitution defines treason and specifies the evidentiary requirements for any treason trial. The founding fathers wanted to ensure that the government would not charge an individual with treason without significant and reliable proof. Treason was punishable by death in England, so it was a constant threat to anyone who disagreed with the ruling party. Although the treason clause in the Constitution is modeled after the early English law defining treason, it omits a section that criminalized “imagining the death of the King” and also limits Congress’s authority to extend or expand the crime of treason or to lighten the evidentiary requirements.

The pertinent section of the Constitution states, “Treason against the United States shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

13.1 Crimes Involving National Security - Treason

The criminal intent element required for treason is most likely the general intent or knowingly to commit an act of levying war or the specific intent or purposely to betray the United States by giving aid and comfort to enemies (Cramer v. U.S., 1945). The Constitution specifies the evidentiary requirements that two witnesses testify to an overt act of treason or that the defendant confess in open court, although this is not set forth in the federal treason statute (18 U.S.C., 2011).

As stated in Cramer v. U.S., 325 U.S. 1, 34, 35 (1945), “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” and it is not enough that the elements of treason can be inferred from the witness statements.

Treason is graded as a felony that can merit the death penalty or prohibit the defendant from ever holding federal office (18 U.S.C. § 2381, 2011).

13.1 Crimes Involving National Security - Example of a Case Lacking Treason Elements and Evidentiary Requirements

Benedict is identified as a person of interest in a treason case. A government agent posing as an enemy spy invites Benedict to dinner, and they discuss the decline of the United States and whether or not they should “do something about it.” At the conclusion of the dinner, Benedict picks up the tab. Thereafter, Benedict is arrested for treason and refuses to incriminate himself by responding to law enforcement interrogation.

It is unlikely that Benedict will be convicted of treason in this case. Benedict paid for the government agent’s dinner, which could constitute providing aid to the enemy. However, Benedict indicated a hesitancy to take further action, which does not satisfy the requirement that he act with the specific intent or purposely to betray the United States.

In addition, only the government agent can testify as to Benedict’s act of paying for a meal because Benedict is asserting his right to remain silent. Therefore, the constitutional requirement that two witnesses testify about the overt act charged as treason is not satisfied. The intent element and evidentiary requirement for treason are lacking, so Benedict probably will not be subject to prosecution for and conviction of this offense.

13.1 Crimes Involving National Security - Compare State Laws

13.1 Crimes Involving National Security - Sedition

Sedition criminalizes the incitement of insurrection or revolution by seditious speech or writings and, as such, is subject to the restrictions set forth in the First Amendment. The first federal law prohibiting sedition was the Sedition Act enacted in 1798 and repealed by Thomas Jefferson after his election as president. The current federal statute criminalizing sedition was originally enacted in 1940 and is codified at 18 U.S.C. § 2385. Conspiracy to commit sedition is codified at 18 U.S.C. § 2384. Many states have similar provisions (51 Pa. Cons. Stat. Ann. § 6018, 2011). Like treason, sedition is rarely prosecuted.

The criminal act element required for sedition is either advocating, aiding, teaching, organizing or printing, publishing, or circulating written matter that advocates, aids, or teaches the overthrow of the US government or any state, district, or territory thereof by force or violence (18 U.S.C. § 2385, 2011).

The criminal intent element required for sedition is the general intent or knowingly to advocate, aid, teach, or organize, or the specific intent or purposely to print, publish, or circulate written matter that advocates, aids, or teaches the violent government overthrow.

In Yates v. U.S., 354 U.S. 298 (1957), the US Supreme Court held that only advocacy directed at promoting unlawful action could be constitutionally prohibited. Advocacy of an “abstract doctrine” was protected by the First Amendment as free speech (Yates v. U.S., 2011).

Sedition is graded as a felony that can prohibit the defendant from obtaining employment with the US government for a minimum of five years postconviction (18 U.S.C. § 2385, 2011).

13.1 Crimes Involving National Security - Example of Sedition

Mo, a disgruntled immigrant who has been denied citizenship, decides he wants to overthrow the US government and supplant it with a new government that will grant the citizenship privileges he desires. Mo prints up leaflets advocating the overthrow of the government by placing a series of bombs in strategic and specifically named places and passes them out every Saturday in front of varied places known for ethnic diversity throughout the city. Mo has most likely committed sedition in this example. Mo printed written matter advocating the overthrow of the US government by unlawful action, using force and violence. Mo’s intent was to get rid of the current government so that he could gain citizenship, which is specific intent or purposely. Thus Mo’s conduct probably constitutes sedition, and he may be subject to prosecution for and conviction of several counts of this offense.

13.1 Crimes Involving National Security - Figure 13.2 Diagram of Sedition

13.1 Crimes Involving National Security - Sabotage

Sabotage is criminalized at 18 U.S.C. § 2151 et seq., which includes several different forms of this offense. Many states have similar provisions (RCW § 9.05.060, 2011). In general, sabotage is destroying, damaging, or defectively producing (criminal act and harm) property with the specific intent or purposely, general intent or knowingly, or negligently to impede the nation’s ability to prepare for or participate in war and national defense and is detailed in the following United States Codes:

• 18 U.S.C. § 2152 focuses on destroying or damaging harbor-defense property.

• 18 U.S.C. § 2153 focuses on destroying or damaging war material, premises, or utilities.

• 18 U.S.C. § 2154 focuses on producing defective war materials, premises, or utilities.

• 18 U.S.C. § 2155 focuses on destroying or damaging national defense material, premises, or utilities.

• 18 U.S.C. § 2156 focuses on producing defective national defense material, premises, or utilities.

13.1 Crimes Involving National Security - Sabotage

Both 18 U.S.C. §§ 2153 and 2154 have the attendant circumstance that the conduct occur during war or a national emergency. All the sabotage statutes grade sabotage as a felony, with sentences ranging from five to thirty years’ incarceration in federal prison.

Sabotage is prosecuted more often than treason and sedition, and there have been some extremely interesting criminal sabotage cases, including sabotage indictments against a corporation manufacturing defective raincoats for the armed forces during wartime, a sabotage trial for the burning of an ROTC building on the Washington University campus after the Kent State University riots, a sabotage trial for defendants who stole copper wire from a railroad track that was used to ship war materials, and the sabotage indictment of Osama bin Laden for extraterritorial (outside the United States) activity.

13.1 Crimes Involving National Security - Example of Sabotage

Review the example in Section 13 “Example of Sedition” with Mo. Add to this example and imagine that Mo gets no response to his fliers and becomes enraged. He decides to get back at the United States for not allowing him to become a US citizen by harming its national security and exposing it to attack by enemy forces. He thereafter hacks into the computer system used by the US Department of Defense and damages it so that it is out of commission for two weeks.

Mo has most likely committed the federal crime of sabotage. Mo damaged national defense material with the specific intent or purposely to interfere with the nation’s security and defense, which is prohibited under 18 U.S.C. § 2155, whether or not it is wartime or during a national emergency. Thus Mo may be subject to prosecution for and conviction of this offense and could face many years of incarceration for his conduct.

13.1 Crimes Involving National Security - Figure 13.3 Diagram of Sabotage

13.1 Crimes Involving National Security - Espionage

Espionage, also known as “spying,” is criminalized at 18 U.S.C. § 792 et seq. Originally part of one of the early versions of the Sedition Act of 1918, the crime of espionage has a colorful history and many interesting criminal prosecutions similar to criminal sabotage. Federal espionage statutes criminalize various acts, depending on whether the conduct occurs during peace or during war. During times of peace, it is criminal espionage to gather, transmit, or attempt to gather or transmit defense information (criminal act) with general intent or knowingly, or with the specific intent or purposely that it will be used to damage the United States or assist any foreign nation (18 U.S.C. § 793, 2011).

13.1 Crimes Involving National Security - Espionage

During times of war, it is criminal espionage to collect, record, publish, or communicate information about military activities or to attempt any of the foregoing (criminal act) with the specific intent or purposely that the information will be transmitted to the enemy (18 U.S.C. § 794(b), 2011). Espionage is graded as a felony, with potential sentencing of life in prison or the death penalty (18 U.S.C. § 792 et seq., 2011).

Some interesting criminal espionage cases are the Rosenberg case, where a married couple conspired to pass nuclear secrets to the Soviets and were later executed pursuant to the death penalty, the Hanssen case, where an FBI agent sold state secrets to Moscow for $1.4 million in cash and diamonds, and the Aragoncillo case, where a White House employee stole intelligence documents from White House computers and e-mailed them to the Philippines.

13.1 Crimes Involving National Security – Example of Espionage

Review the example given in Section 13 “Example of Sabotage” with Mo and his computer hacking. Change the example so that before Mo damages the US Department of Defense computer system, he copies some information from different top-secret sites and sends them to operatives in an enemy nation with this message: “I have stolen this information directly from the US Department of Defense. I have also disabled their computer system, which will probably take some time to repair. Now is an excellent time to attack the United States.” He thereafter severely damages the computer system. In this example, Mo has most likely committed both sabotage and espionage. As stated in Section 13 “Example of Sabotage”, Mo probably committed sabotage when he damaged national defense material with the specific intent or purposely to interfere with the nation’s security and defense. When Mo copied top-secret information and sent it to an enemy nation, along with informing the nation that the US Department of Defense computer system was disabled, he gathered and transmitted information with the specific intent or purposely that it be used to injure the United States. Thus Mo has probably committed both sabotage and espionage and may be subject to prosecution for and conviction of these offenses.

13.1 Crimes Involving National Security – Table 13.1 Comparing Treason, Sedition, Sabotage, and Espionage

13.2 Crimes Involving Terrorism

In recent years, crimes involving terrorism have escalated both in the United States and abroad. The federal government’s response has been to enact comprehensive criminal statutes with severe penalties targeting terroristic conduct. In this section, federal statutes criminalizing acts of terrorism are reviewed, along with potential constitutional challenges.

13.2 Crimes Involving Terrorism - Statutory Schemes Targeting Terrorism

Before the September 11, 2001, terrorist attacks on the United States, the primary federal statutes criminalizing terrorism were the Omnibus Diplomatic Security and Antiterrorism Act of 1986 and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which was enacted after the Oklahoma City bombings. After September 11, 2001, Congress enacted the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

The USA PATRIOT Act changed and strengthened existing laws targeting terrorism and enhanced US capabilities to prosecute terrorism committed abroad. Specifically, the USA PATRIOT Act increases federal jurisdiction over crimes committed outside the United States (USA PATRIOT Act, Tit. VIII § 804, 2011), creates new crimes involving financial support of terrorism or terrorists abroad (USA PATRIOT Act, Tit. VIII § 805, 2011), and provides for the civil forfeiture of assets connected to terrorism (USA PATRIOT Act, Tit. VIII § 806, 2011). Other fundamental changes incorporated in the USA PATRIOT Act are the expansion of government surveillance capabilities, including telephone interception and scrutiny of e-mails (USA PATRIOT Act, Tit. II, § 203 et seq.).

13.2 Crimes Involving Terrorism - Statutory Schemes Targeting Terrorism

In 2002, Congress created the Department of Homeland Security (DHS) under the authority of the Homeland Security Act. DHS enforces provisions of federal laws against terrorism and includes the following agencies: the Secret Service, Customs, the Federal Emergency Management Agency, United States Coast Guard, Border Patrol, Transportation Security Administration, and Citizenship and Immigration Services (Department of Homeland Security website, 2011).

13.2 Crimes Involving Terrorism - Criminal Terroristic Conduct

International terrorism is defined as violent acts committed outside the United States that would be criminal if committed in the United States, and that appear to be intended to influence a civilian population or government by intimidation, or to affect the conduct of government by mass destruction, assassination, or kidnapping (18 U.S.C.§ 2331(1), 2011).

Specific crimes such as murder, attempted murder, and conspiracy to commit murder committed against an American national (defined as an American citizen or individual who owes permanent allegiance to the United States)(18 U.S.C. § 1101(a), 2011) while outside the United States are graded as high-level felonies with all ranges of sentencing options available, including the death penalty (18 U.S.C. § 2332, 2011). Domestic terrorism is defined exactly the same as international terrorism, except that the violent acts are committed within the territorial jurisdiction of the United States (18 U.S.C. § 2331(5), 2011).

13.2 Crimes Involving Terrorism - Criminal Terroristic Conduct

Prohibited as terrorism are the use of a weapon of mass destruction, which is defined as any destructive device or weapon designed to cause death or serious bodily injury through the release of chemicals, toxins, or radioactivity (18 U.S.C. § 2332A(c), 2011), bombings of places of public use—including public transportation systems (18 U.S.C. § 2332F, 2011)—financing of terrorism (18 U.S.C. § 2339C, 2011), harboring or concealing terrorists (18 U.S.C. § 2339, 2011), or attempt or conspiracy to do any of the foregoing. All these crimes are graded as serious felonies.

13.2 Crimes Involving Terrorism - Example of Terrorism

Zacarias Moussaoui, a French citizen, was the only defendant prosecuted for the September 11, 2001, terrorist attacks. Although Moussaoui was not onboard any of the planes that crashed into the World Trade Center, Pentagon, and a Pennsylvania field because he was in federal custody, he was indicted (Zacarias Moussaoui indictment, 2011) for several counts of conspiracy to commit terrorism and aircraft piracy and pleaded guilty to all charges.

Specifically, Moussaoui pleaded guilty to conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of mass destruction, conspiracy to murder US employees, and conspiracy to destroy property of the United States.

After the extended trial, during which Moussaoui attempted to represent himself, and the resulting guilty pleas, the jury carefully considered and recommended against the death penalty for Moussaoui, who was thereafter sentenced to life in prison (Markon, J. & Dwyer, T., 2011). Moussaoui later moved to withdraw his guilty pleas, but his motion was rejected by the US District Court for the Eastern District of Virginia (U.S. v. Moussaoui, 2011), whose decision was later affirmed by the US Court of Appeals for the Fourth Circuit (U.S. v. Moussaoui, 2011).

13.2 Crimes Involving Terrorism - Figure 13.4 Moussaoui Indictment

13.2 Crimes Involving Terrorism - Constitutional Challenges to the USA PATRIOT Act

Portions of the USA PATRIOT Act provide for enhanced government surveillance capabilities, which are considered a search, so constitutional implications are present pursuant to the Fourth Amendment, which prohibits unreasonable search and seizure. In addition, provisions of the Act that prohibit financing terrorists and terrorism have been attacked as violative of the First Amendment’s protection of free speech, free association, and freedom of religion. Litigation involving these challenges is ongoing and was filed on behalf of citizens by the American Civil Liberties Union (ACLU) (Kranich, N., 2011).

13.2 Crimes Involving Terrorism - Figure 13.5 Diagram of Crimes Involving National Security and Terrorism

13.3 Perjury, Bribery, and Obstruction of Justice

Crimes against the administration of justice impede the government’s ability to carry out the important functions of prosecuting and convicting criminals, which, in turn, destroys citizens’ confidence that the US legal system is effective in ensuring individual safety and security. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – Perjury and Other Falsification Definitions

Sec. 37.01. DEFINITIONS. In this chapter:

(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:

(A) this state;

(B) another state;

(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;

(E) an Indian tribe recognized by the United States; or

(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.

(2) "Governmental record" means:

(A) anything belonging to, received by, or kept by government for information, including a court record;

(B) anything required by law to be kept by others for information of government;

(C) a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States;

(D) a standard proof of motor vehicle liability insurance form described by Section 601.081, Transportation Code, a certificate of an insurance company described by Section 601.083 of that code, a document purporting to be such a form or certificate that is not issued by an insurer authorized to write motor vehicle liability insurance in this state, an electronic submission in a form described by Section 502.046(i), Transportation Code, or an evidence of financial responsibility described by Section 601.053 of that code;

(E) an official ballot or other election record; or

(F) the written documentation a mobile food unit is required to obtain under Section 437.0074, Health and Safety Code.

(3) "Statement" means any representation of fact.

Sec. 37.01. DEFINITIONS. In this chapter:

(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:

(A) this state;

(B) another state;

(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;

(E) an Indian tribe recognized by the United States; or

(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.

(2) "Governmental record" means:

(A) anything belonging to, received by, or kept by government for information, including a court record;

(B) anything required by law to be kept by others for information of government;

(C) a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States;

(E) an official ballot or other election record; or

(F) the written documentation a mobile food unit is required to obtain under Section 437.0074, Health and Safety Code.

(3) "Statement" means any representation of fact.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – Perjury

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – Aggravated Perjury

Sec. 37.03. AGGRAVATED PERJURY. (a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

Sec. 37.04. MATERIALITY. (a) A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.

(b) It is no defense to prosecution under Section 37.03

(Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.

Sec. 37.05. RETRACTION. It is a defense to prosecution under Section 37.03 (Aggravated Perjury) that the actor retracted his false statement:

(1) before completion of the testimony at the official proceeding; and

(2) before it became manifest that the falsity of the statement would be exposed.

Sec. 37.06. INCONSISTENT STATEMENTS. An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.

Sec. 37.07. IRREGULARITIES NO DEFENSE. (a) It is no defense to prosecution under Section 37.02 (Perjury) or 37.03 (Aggravated Perjury) that the oath was administered or taken in an irregular manner, or that there was some irregularity in the appointment or qualification of the person who administered the oath.

(b) It is no defense to prosecution under Section 37.02 (Perjury) or 37.03 (Aggravated Perjury) that a document was not sworn to if the document contains a recital that it was made under oath, the declarant was aware of the recital when he signed the document, and the document contains the signed jurat of a public servant authorized to administer oaths.

Sec. 37.03. AGGRAVATED PERJURY. (a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

(b) It is no defense to prosecution under Section 37.03

(Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.

Sec. 37.05. RETRACTION. It is a defense to prosecution under Section 37.03 (Aggravated Perjury) that the actor retracted his false statement:

(1) before completion of the testimony at the official proceeding; and

(2) before it became manifest that the falsity of the statement would be exposed.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT EMPLOYEE

Sec. 37.08. FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT EMPLOYEE. (a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) a peace officer or federal special investigator conducting the investigation; or

(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

(1) a peace officer or federal special investigator conducting the investigation; or

(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

13.3 Perjury, Bribery, and Obstruction of Justice - Perjury History and Elements

Witness testimony is important in a variety of settings. Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case.

In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. This definition was also incorporated into early American common law (Jrank.org, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Perjury History and Elements

In modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. § 1621, 2011). Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance) (Ga. Code tit. 16 § 16-10-70, 2011). The Model Penal Code defines perjury as a false material statement, that the defendant does not believe to be true, made under oath in any official proceeding (Model Penal Code § 241.1(1)). The biggest issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendant’s criminal intent, the materiality of the false statement, and any requirement of corroborative evidence.

13.3 Perjury, Bribery, and Obstruction of Justice - Necessity of a Valid Oath

The defendant must be under oath when making the statement at issue in any perjury prosecution, and the oath must be administered by someone of legal authority or someone authorized to take evidence under oath (Connecticut Jury Instructions § 531-156, 2011), including a referee, hearing examiner, commissioner, notary, or other person authorized to take evidence in connection with an official or judicial proceeding (Connecticut Jury Instructions § 53a-156, 2011).

Federally and in many jurisdictions, the false statement can be written, as long as it is certified, such as a signature on an income tax return (18 U.S.C. § 6065, 2011) or a report (Cal. Penal Code § 129, 2011).

The Model Penal Code also considers a false written statement perjury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code § 241.1(3)). In spite of the attendant circumstance requirement that the statement be made under oath, many jurisdictions disallow a defense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken in an irregular manner (Ala. Code § 13A-10-108, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Perjury Criminal Intent

As stated previously, in many jurisdictions, the defendant must know that a statement is false or must make the statement with the specific intent or purposely to deceive. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent (State v. Kimber, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Materiality Requirement

Perjury generally requires a false statement that is material, which means that it substantially affected or could substantially affect the outcome of the proceeding (Mo. Ann. Stat. § 575.040, 2011). In many jurisdictions and federally, materiality is a question of fact for the trier of fact, which could be a jury (U.S. v. Guadin, 2011). The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code § 241.1(2)). Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. Ann. Stat. § 575.040(3), 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(2))

13.3 Perjury, Bribery, and Obstruction of Justice - Corroborative Evidence Requirement

Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction (Tex. Code of Criminal Procedure, § 38.18, 2011). The Model Penal Code also has this corroborative evidence requirement (Model Penal Code § 241.1(6)).

13.3 Perjury, Bribery, and Obstruction of Justice - Defense of Retraction

Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsification will be exposed (Ala. Code § 13A-10-107, 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(4)).

13.3 Perjury, Bribery, and Obstruction of Justice - Example of a Case Lacking an Element of Perjury

Marcus is a witness in a civil suit for damages against Lindsay. Macy’s department store is suing Lindsay for the alleged theft of a diamond necklace. Marcus takes an oath sworn by the court commissioner. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. When the Macy’s attorney asks Marcus what he was doing at Macy’s, Marcus responds that he was buying some jewelry as a gift for his wife. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend.

Marcus has probably not committed perjury in this case. Marcus is testifying as a witness in a civil rather than criminal trial, but this satisfies the perjury requirement that the testimony be offered during a judicial or official proceeding.

13.3 Perjury, Bribery, and Obstruction of Justice - Example of a Case Lacking an Element of Perjury

Before testifying, Marcus took an oath that was administered by a court commissioner, also satisfying the perjury requirement that the defendant take an oath administered by someone with the legal authority or authorization to take evidence under oath. Marcus’s statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. However, Marcus’s statement does not appear to be material to this judicial proceeding because the reason for Marcus’s presence at Macy’s will not affect the outcome of Lindsay’s civil theft trial (usually called the tort of conversion). Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case.

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Perjury

Review the example in Section 13 “Example of a Case Lacking an Element of Perjury” with Marcus. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macy’s department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Anthony, the Macy’s civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. Marcus has most likely committed perjury in this example. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. Marcus’s statement was material because, if believed, it would have helped exonerate Lindsay in her civil case.

In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Marcus’s admission that he was lying is not a retraction that could serve as a defense because it was not made until the lie was about to be exposed. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense.

Figure 13.6 Diagram of Defenses to Perjury

13.3 Perjury, Bribery, and Obstruction of Justice - Perjury by Inconsistent Statements

Some jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different from criminal perjury (Ala. Code § 13-10-104, 2011).3 Perjury by inconsistent statements is easier to prove than traditional perjury because the prosecution can simply offer evidence that the defendant made statements that are inconsistent, in a judicial proceeding, after taking a validly administered oath. Corroborative evidence is not required, and the prosecution does not have the burden of proving that one of the statements is false, just that one or the other was false and not believed by the defendant to be true (Ala. Code § 13A-10-104, 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(5)).

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Perjury by Inconsistent Statements

Review the example with Marcus in Section 13 “Example of Perjury”. If Marcus’s jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Marcus made two inconsistent statements while under a validly administered oath in Lindsay’s conversion trial, which is a judicial proceeding. In Marcus’s criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent statements to the trier of fact. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving that the first statement was false, which will simplify and expedite the trial and may subject Marcus to conviction of this offense.

13.3 Perjury, Bribery, and Obstruction of Justice – Subornation of Perjury

Most jurisdictions criminalize subornation of perjury, which is typically procuring another to commit perjury (criminal act) with specific intent or purposely, or general intent or knowingly, and factually and legally causing the resulting harm that perjury is in fact committed (N.C. Gen. Stat. § 14-210, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Example of a Case Lacking an Element of Subornation of Perjury

Review the example given with Marcus in Section 13 “Example of Perjury”. Add to this example and assume that Marcus begs Janelle, another witness in Lindsay’s conversion trial, to say that she did not see him at Macy’s the day Lindsay stole the necklace. Janelle flatly refuses. Marcus has not committed subornation of perjury in this case. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense.

13.3 Perjury, Bribery, and Obstruction of Justice - Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury

13.3 Perjury, Bribery, and Obstruction of Justice - Perjury Grading

Perjury is generally graded as a felony (N.C. Gen. Stat. § 14-209, 2011), with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty (Ga. Code tit. 16, § 16-10-70, 2011). The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code § 241.1(1)). Subornation of perjury is also graded as a felony (N.C. Gen. Stat. § 14-210, 2011).

However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. Nonetheless, the threat of a felony conviction still serves as a deterrent and helps to ensure that witnesses testify truthfully in judicial and official proceedings and give accurate statements in certified writings.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – Perjury Grading

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

13.3 Perjury, Bribery, and Obstruction of Justice - Bribery Elements

In modern times, many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept any benefit upon a public official (criminal act) with the specific intent or purposely or the general intent or knowingly to form an agreement or understanding that the public official’s vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit (N.Y. Penal Law § 200.00, 2011; N.Y. Penal Law § 200.10).

The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individual’s on-the-job conduct (N.Y. Penal Law § 180.00, 2011). This type of bribery is typically called commercial bribery (N.Y. Penal Law § 180.00, 2011).

Bribery can also cover members of a state legislature (Cal. Penal Code § 85, 2011; Cal. Penal Code § 86; Cal. Penal Code § 93), any judicial officer, juror, referee, umpire (Cal. Penal Code § 92, 2011), or witness (Or. Rev. Stat. § 162.265, 2011; Or. Rev. Stat. §162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision.

13.3 Perjury, Bribery, and Obstruction of Justice - Prosecutorial Burden in Bribery Prosecutions

Similar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider when deciding whether or not to charge an individual(s) with this offense. The most difficult bribery element to prove beyond a reasonable doubt is the criminal intent element of specific intent or purposely or general intent or knowingly to enter into an agreement that influences the bribed individual’s decision.

13.3 Perjury, Bribery, and Obstruction of Justice – Texas Penal Code – Perjury Grading

Sec. 36.02. BRIBERY. (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:

(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;

(2) any benefit as consideration for the recipient’s decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding;

(3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; or

(4) any benefit that is a political contribution as defined by Title 15, Election Code, or that is an expenditure made and reported in accordance with Chapter 305, Government Code, if the benefit was offered, conferred, solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion if such exercise of official discretion would not have been taken or withheld but for the benefit; notwithstanding any rule of evidence or jury instruction allowing factual inferences in the absence of certain evidence, direct evidence of the express agreement shall be required in any prosecution under this subdivision.

(b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason.

(c) It is no defense to prosecution under this section that the benefit is not offered or conferred or that the benefit is not solicited or accepted until after:

(1) the decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or

(2) the public servant ceases to be a public servant.

(d) It is an exception to the application of Subdivisions (1),(2), and (3) of Subsection (a) that the benefit is a political contribution as defined by Title 15, Election Code, or an expenditure made and reported in accordance with Chapter 305, Government Code.

(e) An offense under this section is a felony of the second degree.

Sec. 36.02. BRIBERY. (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:

(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;

(2) any benefit as consideration for the recipient’s decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding;

(3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; or

(c) It is no defense to prosecution under this section that the benefit is not offered or conferred or that the benefit is not solicited or accepted until after:

(1) the decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or

(2) the public servant ceases to be a public servant.

(d) It is an exception to the application of Subdivisions (1),

(2), and (3) of Subsection (a) that the benefit is a political contribution as defined by Title 15, Election Code, or an expenditure made and reported in accordance with Chapter 305, Government Code.

(e) An offense under this section is a felony of the second degree.

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Bribery

Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macy’s department store. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. Isabel has most likely committed bribery in this case. Although the judge did not accept Isabel’s “gift,” most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. In addition, based on these facts, Isabel’s connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. Note that a prosecutor is required to prove beyond a reasonable doubt Isabel’s specific intent or purposely or general intent or knowingly to enter into an agreement with the judge influencing his decision, which is challenging even under the obvious circumstances apparent in this case.

13.3 Perjury, Bribery, and Obstruction of Justice - Another Example of Bribery

Review the example with Isabel in Section 13 “Example of Bribery”. Add to this example and assume that the judge graciously accepts Isabel’s gift and thereafter rules in her favor, acquitting her of perjury. In this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. Thus both Isabel and the judge may be subject to prosecution for and conviction of this offense, and the judge’s acquittal of Isabel will ease the prosecutor’s burden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement corruptly influencing the decision making in this case.

13.3 Perjury, Bribery, and Obstruction of Justice - Example of a Case Lacking an Element of Bribery

Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Isabel steps up and charitably offers to pay the gentleman’s bill. Later in the day, while watching her son’s professional baseball game, Isabel notices that the umpire looks familiar. After pondering it for a few minutes, she realizes that he is the same gentleman who could not pay his bill at the coffee shop. Isabel and the umpire probably have not committed bribery in this case. Although Isabel gave the umpire money, and he was the decision maker in her son’s baseball game, Isabel did not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or knowingly to enter into an agreement influencing the umpire’s decisions. Thus the criminal intent element for bribery appears to be lacking, and neither Isabel nor the umpire are subject to prosecution for and conviction of this offense.

13.3 Perjury, Bribery, and Obstruction of Justice - Bribery When No Authority to Act Is Present

In many states and under the Model Penal Code, it is no defense to bribery that the individual bribed does not have the authority to act or make the decision that is the subject of the bribe (Model Penal Code § 240.1) (Ala. Code § 13A-10-61, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Bribery When No Authority to Act Is Present

Review the example with Isabel and the judge in Section 13 “Another Example of Bribery”. Change this example and assume that the “judge” in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. Isabel and the “judge” may still be prosecuted for and convicted of bribery in many jurisdictions and under the Model Penal Code because lack of authority is typically not a defense to bribery under modern statutes criminalizing this offense.

13.3 Perjury, Bribery, and Obstruction of Justice - Figure 13.8 Diagram of Defenses to Bribery

13.3 Perjury, Bribery, and Obstruction of Justice - Bribery Grading

Bribery is typically graded as a felony (N.Y. Penal Law § 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. Penal Law § 200.03, 2011) or bribery that results in someone’s prosecution or incarceration for a felony (N.Y. Penal Law § 200.04, 2011). When a state legislator (Cal. Penal Code § 88, 2011) or a public official (Cal. Penal Code § 74, 2011) commits bribery, it is typical to disqualify that individual from his or her office for life, in addition to any other sentence.

13.3 Perjury, Bribery, and Obstruction of Justice - Obstruction of Justice

Obstruction of justice takes many forms and is a classic example of an offense against the administration of justice. States and the federal government exercise broad latitude in enacting statutes that criminalize interference with any aspect of law enforcement procedure or the prosecution and conviction of criminal offenders. Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer (720 ILCS § 5/31-4.5, 2011), impersonating a law enforcement officer (Fla. Stat. Ann. § 843.08, 2011), refusing to aid a law enforcement officer when requested (N.Y. Penal Law § 295.10, 2011), giving false evidence (720 ILCS § 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS § 5/31-4, 2011), tampering with evidence (Or. Rev. Stat. § 162.295, 2011), and tampering with a witness (18 U.S.C. § 1512, 2011) or juror (Ariz. Rev. Stat. § 13-2807, 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Obstruction of Justice

All these acts are generally supported by specific intent or purposely or general intent or knowingly. The Model Penal Code prohibits threatening unlawful harm to any person or public servant with purpose to influence his decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code § 240.2). Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense.

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Obstruction of Justice

Barry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found guilty by a federal jury for obstruction of justice, based on his refusal to answer a question during a grand jury investigation of his steroid use (Macur, J., 2011). Bonds was also charged with three counts of perjury, but the jury could not agree to convict, resulting in a mistrial on all three counts (Ortiz, J. L., 2011). The perjury charges stemmed from Bonds’s claim while testifying under oath that he never knowingly used steroids, never knowingly used human growth hormones, and was never injected with a substance by anyone other than his trainer. The obstruction of justice conviction resulted from Bonds’s evasive answer to the question of whether his personal trainer had ever injected him with steroids (Macur, J., 2011).

13.3 Perjury, Bribery, and Obstruction of Justice - Example of Obstruction of Justice

Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). The perjury charges support the obstruction of justice charge, so the defense asked for a court dismissal of the obstruction of justice conviction in order to clear the way for an appeal (Ortiz, J. L., 2011). Note that Bonds’s obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 13 “Perjury Criminal Intent”.

13.3 Perjury, Bribery, and Obstruction of Justice - Additional Crimes against the Government

Additional crimes against the government that impair the orderly administration of justice are contempt (N.C. Gen. Stat. § 5A-11, et seq., 2011), resisting arrest (18 Pa. Cons. Stat. Ann. § 5104, 2011), and escape (Tex. Penal Code § 38.06, 2011). Review the statutes in the endnotes for common elements and grading of these offenses.

13.3 Perjury, Bribery, and Obstruction of Justice - Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice