Failure To Read: When “or” means “and,” Perjury, and the Recantation Defense

When does “or” mean “and”? When does “or” simply mean “or”? And whose job is it to decide—a Federal court or Congress?

A Tale as Old as Time

Federal courts have been telling us the what the law is since time immemorial. (Or 1803, roughly. And to answer your question, yes, that is an obligatory link to Marbury.) This task has always involved more than simply reading the text and giving each word its ordinary definition—it has always been, as the late Justice Scalia oft lamented, a matter of interpretation. (For an accessible book review, click here.) And, while many judges profess to search for the “objective” intent of the law, the final result is often guided by the ethereal intent of Congress and judicial policy choices, not the objective text. While this may lead to “good” law—if such a thing could objectively exist—sometimes a federal court ends up wreaking havoc upon the system Congress created, devaluing important rights and undermining Congressional policy.

This dynamic is clearly conveyed in one of the older splits this blog will cover: whether, under 18 U.S.C. 1623, the recantation defense is written in the conjunctive or the disjunctive.

Perjury Before a Grand Jury or a Court

People lie all the time, some more than others.  Immoral a lie may be, but rarely are such lies actionable. However, a lie—or, more technically, a “false declaration”—before a grand jury or a court isn’t just a moral issue, it’s a criminal one.

Under 18 U.S.C. 1623, if an individual under oath, in any proceeding before or ancillary to any court or grand jury, knowingly makes any false material declaration, they can be fined and imprisoned for up to five years. A seasoned lawyer—or a bright 1L, frankly—can see there are several ways to defend a perjury charge. Knowingly, materiality, falsity—all grounds ripe for a defense lawyer (and all grounds this post will not discuss further).

Congress also provided a defense within the statute itself—the recantation defense. Under 1623(d):


Seems simple, right? As long as the false declaration has not substantially affected the proceeding, or it has not become “manifest” that the lie has been or will be exposed, a witness can recant without fear of prosecution.

The recantation defense comports with the common-sense purpose of perjury statutes: to promote truthfulness, not truthiness. By building a safety valve within the statute, Congress encourages a potential-perjurer to recant and tell the truth, all at the low-low price of $ 9.99 (and an invaluable get out of jail free card). It’s not the easiest defense to establish—you still have to show that the false declaration has not “substantially affected the proceeding,” or that it has not become “manifest” that the lie will be or has been exposed. But that’s precisely the point. If the lie has already had a substantial affect and it’s clear you’ve been (or are about to be) caught, too bad, go to jail; if not, recant.

Something funny then, (maybe strange), must have happened on the way to the First, Second, Third, Fifth, and D.C. Circuits.

“18 U.S.C. § 1623(d) is deceptive in its apparent clarity”

The First, Second, Third, Fifth, and D.C. Circuits hold “or” in 18 U.S.C. 1623(d) to mean “and.” What? Yes, I agree.

Normally, I’d try to paraphrase some of the arguments. However, the Third Circuit in Sherman (linked above), provides the clearest example of the reasoning used by her Sisters. The following is a full quote, with citations omitted for length, and the most pertinent reasoning bolded.

Statutory interpretation usually begins, and often ends, with the language of the statute.  “Where … the statute’s language is plain, ‘the sole function of the court is to enforce it according to its terms.’ ” We look to the text of a statute to determine congressional intent, and look to legislative history only if the text is ambiguous. Plain meaning is conclusive, “except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'”

18 U.S.C. § 1623(d) is deceptive in its apparent clarity. It says “or” and Sherman argues that Congress intended the statute to mean exactly that. However, reading the statute as Sherman argues we must results in a statute that is both inconsistent with, and frustrating to, Congress’ twofold intent in enacting the legislation. If Sherman is correct, one could commit perjury with impunity. A witness could violate his or her oath in the comfort of knowing that no perjury prosecution was possible so long as he or she recanted as soon as it appeared the perjury would be disclosed. A recantation at that point, under Sherman’s interpretation, would shield the conduct even if the judicial proceedings had been substantially affected by the false testimony. Similarly, a witness could escape prosecution even after the false nature of it had been disclosed and hope to successfully argue that the proceedings had not been substantially effected [sic] because there had been a recantation.

In Lardieri we examined the legislative history of § 1623 to determine legislative intent, and we are guided by that analysis. We do not believe that Congress intended to “improve truth telling in judicial proceedings,” by incorporating a provision into the perjury statute that would be tantamount to granting immunity from prosecution in many, if not all, instances.

Similarly, we note that, despite the disjunctive phrasing in § 1623(d), the New York statute it was based upon is drafted in the conjunctive.

“Deceptive in its apparent clarity.” “[S]ays or” but means and. “Despite the disjunctive,” the statute is based off a statute written in the conjunctive. (A classic example of valuing history over text.) In another part of the opinion not excerpted above, the court went so far as to evade the rule of lenity, arguing that it doesn’t apply because it would frustrate the alleged “intent” that Congress had in passing 18 U.S.C. 1623. All this, despite the seeming “clarity” of the statute, and despite the “intent” of Congress to promote truthfulness (at 665).

(As an aside, perhaps the canon driving the court was a form of constitutional avoidance. In Sherman, the defendant brought a due process claim, alleging that the prosecutor charged him under 18 U.S.C. 1621—the general perjury statute—instead of 18 U.S.C. 1623, thereby robbing him of the recantation defense under 18 U.S.C. 1623(d). The Sherman court noted that, prosecutorial discretion aside, a due process claim lies when a prosecutor’s charging decision is motivated solely by a desire to achieve a tactical advantage by impairing the ability of a defendant to mount an effective defense. By holding that Sherman was not even entitled to a defense under 18 U.S.C. 1623(d), the court obviated the need to inquire into whether the prosecutor was motivated by an improper desire, and evaded the tangled thickets of due process. This reading of Sherman explains the addled logic employed by the court, although it fails to explain the First, Second, Fifth, and D.C. Circuits endorsement of “or” meaning “and.”)

The Eighth Circuit: Sometimes, Or Just Means Or

As this is a blog about circuit splits, and not just a page for me to rant about shoddy judicial reasoning, I should probably introduce the Eighth Circuit’s opinion in US v. Smith. In Smith, the defendant challenged the lower court’s ruling that she was not entitled to the recantation defense of 18 U.S.C. 1623(d). The lower court based its ruling on existing authority at the time, which did not include Sherman, but did include the other opinions linked above (and which Sherman typifies). The Eighth Circuit reversed, holding that the plain language of the statute must control, and that according the word “or” its “ordinary meaning does not defeat the intent of Congress in enacting . . . recantation defense.” Additionally, the court cited the legislative intent of Congress—chiefly, its focus on truthfulness—and the rule of lenity.

In addressing the New York statute that served as the model for 18 U.S.C. 1623 and which was written in the conjunctive, the Eighth Circuit stated

While this observation may raise some uncertainty about the language Congress intended to enact, it does not create an ambiguity in an otherwise plainly worded statute nor does it militate against according the enacted language its ordinary meaning. “[I]t is appropriate to assume that the ordinary meaning of [the statutory language] accurately expresses the legislative purpose.” In this case, where the statute is unambiguous on its face, the language of the statute is conclusive as to legislative intent, and we thus decline to abandon the ordinary disjunctive meaning accorded to “or” in favor of a conjunctive “and,” as such a construction would defeat the plain language of the statute and would not foster any clearly articulated legislative intent to the contrary.

Looking Forward

To my knowledge, this circuit split has not evolved much since the latest opinion in Sherman (1998). The Tenth Circuit, in an unpublished opinion issued in 2000, observed the split but did not weigh in on it. Scholarship, with the exception of a piece cited below, has largely ignored the split. The one piece that I have found approached the issue in a rather practical manner, focusing on the “illusion” of the recantation defense. There’s more “there” there, as the split speaks broadly about the role of federal courts in interpreting legislation, Congressional intent, rights-remedy gaps, the appropriate use of canons of constructions, and due process issues that Sherman (wrongly) evaded. Hopefully future scholars (I’m looking at you, dear reader) will take the issue up.

For further reading on the New York Statute and 18 U.S.C. 1623, see Linda F. Harrison’s piece “Recantation: Illusion or Reality.”