4.18.1623 False Declaration in Grand Jury Testimony, 18 U.S.C. § 1623 See Statute

[Defendant] is charged with making a false declaration in [his/her] grand jury testimony. It is against federal law to knowingly make a false material declaration to the grand jury while under oath.

For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that [defendant] was under oath as a witness before the Grand Jury of this Court;

Second, that [defendant] made a false declaration that was material to the grand jury’s investigation; and

Third, that at the time [defendant] made the false declaration, [he/she] knew the declaration was false.

A declaration is false if it is untrue when made.

A declaration is “material” to the grand jury’s investigation if it is capable of affecting or influencing the grand jury inquiry or decision. It is not necessary for the government to prove that the grand jury was, in fact, misled or influenced in any way by the false declaration.

Comment(s)

(1) The definition of materiality comes from United States v. Doherty, 906 F.2d 41, 43-44 (1st Cir. 1990), that stated that the statement must be “material to the grand jury’s investigation” but need not actually influence the grand jury. The phrase “capable of influencing” comes from United States v. Scivola, 766 F.2d 37, 44 (1st Cir. 1985) (quoting United States v. Giarratano, 622 F.2d 153, 156 (5th Cir. 1980)), a case that held that materiality can be satisfied even if the declaration only affected the credibility of a witness. United States v. Goguen, 723 F.2d 1012, 1019 (1st Cir. 1983), used slightly different language (“might have influenced”). These cases all precede the Supreme Court’s holding in United States v. Gaudin, 515 U.S. 506 (1995), and then specifically in Johnson v. United States, 520 U.S. 461, 465 (1997) (“[T]here is no doubt that materiality is an element of perjury under § 1623. . . . Gaudin therefore dictates that materiality be decided by the jury, not the court.”), that the question of materiality is for the jury. However, the language of the First Circuit cases still seems pertinent.

(2) The Fifth Circuit pattern charge has the following additional language that may sometimes be appropriate, but for which we have found no caselaw:

If you should find that a particular question was ambiguous or capable of being understood in two different ways, and that [defendant] truthfully answered one reasonable interpretation of the question under the circumstances presented, then such answer would not be false. Similarly, if you should find that the question was clear, but the answer was ambiguous, and that one reasonable interpretation of the answer would be truthful, then the answer would not be false.