Perjury Risks in Federal Proffer Sessions.

The answer to this question is not immediately apparent because, as we discussed, there is no oath involved. This is also why the answer cannot be “yes.” The provision that applies is not Section 1621. Instead, it is 18 U.S.C. Section 1001. It’s a statute that imposes liability for knowingly and willfully making a material false statement “in any matter within the jurisdiction of the executive, legislative, or judicial branch.” Section 1001, unlike Section 1621, requires no oath and no courtroom proceeding. With this, we are back where we started: Section 1001 requires the government to prove that you (i) knowingly and willfully made a false statement that was material in the matter before the federal government. An ordinary violation of Section 1001 carries up to five years’ imprisonment. So, the answer is not “no” either.

Do You Commit Perjury if You Lie During a Federal Trial?

Yes. At a trial, you will be sworn in by the presiding judge. Any false statement you knowingly and willfully make under oath will constitute a violation of Section 1621. Along with this, false testimony before a judge or jury may be grounds for a two-level obstruction enhancement under Section 3C1.1 of the U.S. Sentencing Guidelines. A two-level Section 3C1.1 increase does not automatically result in a set prison term. Instead, the resulting Guidelines range depends on your total offense level and criminal history category. So, as a result, it is not possible to say exactly what the specific penalties for perjury or for a violation of Section 1001 will be. What we can say is that, regardless of the circumstances in which the false statement was made, you could face a five-year term of federal imprisonment.

Why Do False Proffer Answers Lead to Section 1001 Charges Instead of Perjury?

With this, we arrive at the answer to the question we have been addressing throughout this article. As we have discussed, the answer is that an unsworn false statement doesn’t constitute perjury because there is no oath. But, as discussed, it can violate Section 1001. In 1998, in Brogan v. United States, the United States Supreme Court rejected the “exculpatory-no doctrine.” This doctrine once protected a defendant from prosecution for a simple “no” that denied liability in federal investigations. The Supreme Court rejected this doctrine, holding that a simple false denial can support liability under Section 1001. Along with this, the Court noted that a false statement made to the federal government can violate Section 1001 regardless of whether the government relied on the statement.

When Does a False Proffer Answer Lead to Liability Under Section 1001?

A false proffer answer can lead to liability under Section 1001 in the following situations:

Wrongly Claiming Forgetfulness and Ignorance

• Knowingly Falsely Claiming To Have Forgotten Particular Facts: Knowingly claiming you cannot recall the facts in question can satisfy the “false statement” element.
• Knowingly Falsely Claiming Ignorance: Knowingly claiming ignorance in response to specific questions can also satisfy the “false statement” element.

False Denials

The “Exculpatory-no” False Denial

As Brogan v. United States noted, the Supreme Court has rejected the “exculpatory-no” false denial. False denials, whether they admit guilt in the federal government’s investigation or not, can satisfy the “false statement” element of Section 1001. False denials in the context of a proffer are just another instance of this.

Deception and Concealment

A false proffer answer will also lead to liability under Section 1001 in cases involving deception and concealment. Section 1001 liability for concealment requires two elements:

• The defendant’s duty to disclose particular facts to the federal government.
• The defendant’s deceptive conduct that caused the concealment of the pertinent facts.

Again, both elements must be proven to be “material” in the matter before the federal government.

Lack of Knowledge of the Truth

As we discussed, Section 1001 requires the false statement to be “knowingly and willfully” made. The federal government must prove you knew your proffer response was false when you made it. An innocent memory error doesn’t meet this requirement. You cannot commit a federal crime by innocently forgetting a fact that you should have known, or by incorrectly recalling an event. If you cannot convincingly state a truth, you cannot, as a result, knowingly and willfully state a lie.

Establishing Liability Under Section 1001

In order to establish liability under Section 1001, the government must prove every element beyond a reasonable doubt. Along with this, in order to establish liability under Section 1001, the government must prove that the false statement was material in the federal government’s investigation. If an answer is false but immaterial, it will not, as a result, lead to liability under Section 1001.

When Can a False Proffer Statement Actually Become a Federal Perjury Charge?

As we have discussed throughout this article, unsworn proffer answers don’t typically implicate the federal perjury statutes. The reason is simply because they aren’t statements made under oath. However, that doesn’t mean it’s impossible to commit perjury in the context of a proffer session. It’s just very unlikely to be the case.

Here are two examples of how a false proffer answer could lead to a charge under one of the federal perjury statutes:

You Are Subjected to an Authorized Oath

A false proffer answer could trigger liability under Section 1621 if the answering individual was subjected to an authorized oath by a qualified person prior to answering. Section 1621 applies to the following scenarios:

• “Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true…”
• “Whoever, in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true…”

Under Section 1621, a defendant must be proven to have stated a material matter he or she knew or believed to be false at the time. Penalties for violating Section 1621 include imprisonment for up to five years.

You Are Subjected to a Grand Jury Proceeding

Similar to Section 1621, Section 1623 also imposes liability for making a “knowingly false, material declaration” while under oath or penalty of perjury. However, Section 1623 is more specific in scope, applying to false statements made during:

• Proceedings before any grand jury of the United States,
• Proceedings before any court of the United States, and
• Proceedings ancillary to any such court or grand jury, such as depositions taken in a federal case.

Like Section 1621, Section 1623 authorizes federal prosecutors to seek up to five years’ imprisonment.

Fines

Additionally, while either Section 1621 or Section 1623 could potentially apply to a false proffer answer, Section 3571 limits the fines that may be assessed in felony cases. Under Section 3571, the general statutory maximum fine for individuals charged with committing a federal felony is $250,000.

How Difficult is it for Prosecutors to Prove Perjury?

Prosecutors must establish every element of the applicable perjury statute beyond a reasonable doubt. If this includes proving that a witness knew that their statement was false at the time, simply proving falsity is not enough. Rather, the prosecutor must also prove the required culpable state of mind. Along with this, while establishing materiality is relatively straightforward, prosecutors still must prove the required standard of materiality. In fact, the term “material” is not defined under either Section 1621 or Section 1623. However, the U.S. Supreme Court clarified the term’s meaning in United States v. Gaudin. Here, the Supreme Court described a statement as material if it has “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed,” and held that materiality is an element the jury must decide.

Proving a Culpable State of Mind

When seeking a conviction under Section 1621 or Section 1623, establishing a defendant’s culpable state of mind may not always be straightforward. For example, in Bronston v. United States, the Supreme Court held that Section 1621 doesn’t apply if the defendant’s answer was literally true at the time it was made. However, as Bronston noted, if a defendant’s answer is ambiguous enough that both a false and a true reading could be plausible, this can also complicate the government’s effort to establish the required culpable state of mind. In light of this, any attempt to prove that a witness knowingly or willfully provided a false answer must also address any potential for ambiguity in the answer.

Section 1623 Specific Defenses and Exemptions

Under Section 1623, defendants have additional specific defenses and exemptions. For instance, Section 1623(c) exempts defendants who made two or more inconsistent declarations, but believed that both declarations were true at the time. In addition, Section 1623(d) also contains a recantation defense. Here, if a defendant falsely testifies and “subsequently in the same proceeding corrects” the mistake, they can potentially avoid prosecution. As a result of this, Section 1623 allows for recantation, so long as the witness does so in the same continuous proceeding. Also, in order to qualify for the recantation defense, the witness must do so before the declaration has substantially affected the proceeding, or before it has become manifest that such falsity has been or will be exposed. If the jury finds the testimony to be false, the witness cannot escape liability under Section 1623 by trying to recant.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

What is the Two-Witness Rule for Perjury?

As discussed, one of the key elements of perjury is the requirement that the defendant stated a matter they knew or believed to be false. Establishing falsity can be more or less difficult depending on which federal statute applies. Under Section 1621, prosecutors must establish “falsity” through the so-called two-witness rule. Again, not to be confused with the requirement that a witnessed-statement be made, the two-witness rule is a rule about how the witness’s statement must be proven to be false.

The Two-Witness Rule under Section 1621

Under Section 1621, prosecutors can establish the “falsity” element by (i) relying on the testimony of two witnesses that testify to the opposite of the defendant’s, or (ii) relying on the testimony of one witness, along with other corroborating evidence. As described above, the two-witness rule does not require two eyewitnesses to the making of the statement. Instead, it requires that either two witnesses (or one witness and other evidence) provide testimony that contradicts the defendant’s statement.

Witness-Number Requirement under Section 1623

Unlike Section 1621, Section 1623 expressly eliminates any particular witness-number requirement. Section 1623(e) makes clear that the government is not required to have any witnesses at all in order to prove falsity under Section 1623. Instead, it states that establishing falsity under Section 1623 can be done by pointing out that the defendant “while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury.” Here is the specific language from the statute:

“In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. … Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.”

Does a Perjury Allegation Override Attorney-Client Privilege?

A perjury allegation does not automatically eliminate attorney-client privilege. As we’ve discussed, the attorney-client privilege is a rule that prevents federal prosecutors from using information that you shared with your attorney in confidence for the purposes of receiving legal advice. If you provided information to your attorney about a crime you committed, then that disclosure generally cannot be used as evidence against you if the information was only used for the purpose of your defense. Now, while the attorney-client privilege doesn’t apply to the proffer session itself (i.e., it doesn’t prevent the government from introducing your false statement to the jury), it still could potentially apply in other contexts. However, a perjury allegation is not an automatic exemption that allows the government to bypass the attorney-client privilege.

What Does the Attorney-Client Privilege Protect?

The attorney-client privilege is a rule that protects confidential legal communications. It does not protect the client’s underlying facts, nor does it protect communications between the client and the federal government (regardless of the client’s attorney’s role). Statements that you deliver to prosecutors in exchange for certain types of information (or for the purpose of obtaining certain types of relief) are not confidential legal communications, and the attorney-client privilege does not apply to them. Furthermore, simply being represented by counsel does not necessarily mean that anything the client tells the prosecutor is privileged information. If a client discloses or withholds information as the direct result of an attorney’s advice, then, as discussed, the attorney-client privilege may apply. But, if the client intentionally shares particular information with government agents, the mere presence of the client’s attorney will not render that communication confidential or privileged.

The Crime-Fraud Exception to the Attorney-Client Privilege

The crime-fraud exception is a separate exception to the attorney-client privilege. According to the crime-fraud exception, the attorney-client privilege does not apply in the context of “ongoing or future misconduct.” Again, this is quite separate from perjury allegations. If you are accused of perjury, this doesn’t automatically trigger the crime-fraud exception, as the perjury is generally a result of information you provided in response to the prosecutor’s questions. If you’s seeking legal advice from your attorney about a crime you have already committed, the attorney-client privilege still applies regardless of your potential liability for perjury in the proffer. However, if you’s seeking advice from your attorney about a crime that you intend to commit or are in the process of committing, then, as we have discussed, the crime-fraud exception might apply.

Is a Proffer Agreement the Same as Snitching or Cooperating?

A proffer agreement is a preliminary information-sharing agreement that is often (but not necessarily) the precursor to a formal cooperation agreement. The purpose of a proffer session is to allow the government to find out the relevant facts in a case so it can make informed decisions about how the case proceeds. Proffering may involve disclosing your own conduct, and it may involve disclosing the conduct of others who may have been involved in the alleged crime or crimes. If you cooperate with the federal government by providing information about others, then your proffer session could easily be described as “snitching.” However, a proffer session could also focus on demonstrating that you are innocent of the alleged misconduct, or that there isn’t enough evidence to warrant prosecution. In that case, it would not be accurate to describe the proffer as a form of cooperation or “snitching.”

What Is the Difference Between Proffering and Cooperating?

The biggest difference between proffering and cooperating is that while proffering may lead to a plea deal or immunity, it never guarantees either. Proffer agreements only guarantee immunity with respect to the statements that you provide. If you fail to provide information that is material to the federal government’s case, your proffer agreement won’t lead to a plea offer or immunity. Similarly, formal cooperation agreements are just that, agreements, and they come with both benefit and obligations. While a cooperation agreement can result in immunity, a favorable plea offer, or a sentence reduction, it may also impose continuing duties. This includes, for example, the requirement to testify in federal court, often in order to establish the guilt of other defendants.

What Are the Possible Benefits of Cooperating?

If you cooperate with the federal government, there are several possible benefits. If you get a favorable plea offer and receive a substantial-assistance sentencing departure under Section 5K1.1 of the U.S. Sentencing Guidelines, then you could potentially receive a prison sentence of zero or close to zero years. Of course, a 5K1.1 departure requires the government’s motion. In addition, if you agree to provide substantial assistance after your sentencing, the government may request a sentencing reduction under Federal Rule of Criminal Procedure 35(b).

What Can the Government Do with What I Say in a Proffer?

As discussed above, a key feature of proffer agreements is that they contain a limitation on the federal government’s ability to use a defendant’s (or potential defendant’s) proffer answers against them in the case at hand. This is the primary benefit of a proffer agreement, and, of course, this is the main reason why defendants enter into proffer agreements. With that said, a proffer agreement does not entirely shield the federal government from using the information you provide. Along with this, in any proffer agreement, the government’s use of proferred statements will usually be subject to various exceptions. Here are some examples of these exceptions in proffer agreements, including some that the government expressly includes in its proffer forms:

Use in the Case-in-Chief

A typical proffer agreement’s protections apply only to the “case-in-chief.” In a federal criminal case, the federal prosecutor has the burden of proving guilt beyond a reasonable doubt. To do this, the prosecutor presents their “case-in-chief.” If a defendant (or potential defendant) provides a compliant proffer statement, then a typical proffer agreement will prohibit the government from introducing the proffer statement as evidence to support its case in chief.

Impeachment

Even though the federal prosecutor typically cannot use a compliant proffer statement to introduce its case in chief, most proffer agreements allow the federal government to introduce the statement as evidence for impeachment purposes. This means, if the defendant testifies in open court, and the testimony contradicts the defendant’s proffer statement, the prosecutor can introduce the proffer statement as evidence of the defendant’s inconsistent statement.

Derivative-Use

The federal government can also use your proffer answers as evidence if it can establish that this evidence was obtained independently. A derivative-use clause prevents the federal prosecutor from introducing proferred information if that information was obtained during the proffer session. However, investigators are still allowed to use proferred information to identify new leads. If this use leads to independent evidence against you, then, under a derivative-use clause, the federal prosecutor can use this later-obtained evidence even if you provide a compliant proffer statement.

FBI Form 302

The protections in proffer agreements may not always cover reports generated by federal investigators. When FBI agents conduct an interview or a proffer session, they are required to document the interview in an “FBI Form 302,” also known as a “302.” Unlike a transcript or a recording, which contains the speaker’s exact words, a 302 is a summary of the interview. Some proffer agreements allow the government to use FBI 302s to introduce a defendant’s proffer statements, while others have specific language that limits this possibility.

Rebuttal-Use

Under a rebuttal-use clause, a prosecutor can introduce your compliant proffer statement in response to evidence or arguments presented by the defense.

Individual Negotiations

In many cases, a defendant’s proffer agreement is not negotiated with the federal government. Instead, the government sends over its own proffer form, which will typically include all necessary protections, conditions, and reservations. Along with this, the language in a proffer agreement will often depend on the federal prosecutor, the district, and the specific circumstances of the federal criminal case.

Truthfulness and Completeness

Finally, most proffer agreements condition the applicable protections on providing complete and truthful answers during the proffer session. Here, the protection is contingent on complying with the proffer’s conditions. If the defendant provides a statement that the government later proves to be false, then the federal prosecutor will likely be able to use the false statement under the exceptions discussed above.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.