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. e du/thir dc ir c uit_1998/177Filed July 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7073

UNITED STATES OF AMERICA, Appellant

v.

ROBERT J. SHERMAN

ON APPEAL FROM THE FINAL ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Criminal No. 4: CR-96-269)

Argued: August 12, 1997

Before: Alito, Lewis* & McKee, Circuit Judges

(Filed: July 30, 1998)

Theodore B. Smith, III, Esq. (Argued) Office of United States Attorney Federal Building

228 Walnut Street

P.O. Box 11754 Harrisburg, PA 17108 Attorney for Appellant

___________________________________________________ ______________

*Judge Lewis heard argument in this matter, but was unable to clear the opinion due to illness.Benjamin S. Waxman, Esq. (Argued)

Robbins, Tunkey, Ross, Amsel,

Raben & Waxman
2250 Southwest Third Avenue

4th Floor Miami, FL 33129 Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

The government appeals the order of the District Co urt for the Middle District of Pennsylvania dismissing a fivecount indictment against Robert Sherman in which he was charged with committing perjury before a federal gr and jury
in violation of 18 U.S.C. S 1621. The district cour t held that the prosecution improperly charged Sherman under th at general perjury statute rather than the more specif ic false declarations statute, 18 U.S.C. S 1623, thereby den ying him the ability to assert the recantation defense avail able under 18 U.S.C. S 1623(d). For the reasons that follow, w e will reverse and remand for further proceedings consiste nt with this opinion.

I. Statement of Facts

On October 23, 1996, Robert J. Sherman was indicted on five counts of perjury under 18 U.S.C. S 1621. The indictment stemmed from Sherman's testimony in the medical malpractice trial of Samuel and Gail Gasser t v. Latif Awad, M.D. and Geisinger Medical Center. Sherman- a longtime obstetrician/gynecologist - had testified as the plaintiffs' medical expert in that trial. When cros s examined about his qualifications as an expert, Sherman had testified that he was licensed to practice medicine in the Di strict of Columbia, Virginia and Massachusetts and that none of his licenses had ever been revoked, suspended or restri cted. App. at 63. He further testified that he had never been subject to any disciplinary proceedings by any hosp ital or medical society. App. at 62. He did, however, ackno wledge

2that he had once been named in a medical malpractic e case

fifteen years earlier, involving a problem with a"D & C",1 but he described it as "routine." App. at 63. When Sherman provided that testimony, he knew that all of his li censes had been revoked, and defense counsel ultimately el icited this admission from Sherman. Because that testimony is at the heart of this appeal, we will quote the relevan t exchange at length:

Q: At the present time you are licensed to p ractice medicine in Virginia.

A: Yes.

Q: Over the course of your practice, which h as been about how many years now?

A: Thirty years.

Q: Okay, over the course of your practice, h ow many states have you ever been licensed to practi ce in?

A: I was licensed in Massachusetts, Virginia , Maryland,

and D.C.

Q: And you've continued to keep your license current in Virginia.

A: That's all.

Q: Do you remember at the time of your retir ement in 1985, do you remember what states you had li censes in?

A: I don't have that handy at the moment.

Q: Well, were you licensed to practice medic ine in Virginia in 1985?

A: Yes. yes.

Q: How about Massachusetts?

A: I moved away from Massachusetts so I didn 't bother
with that.

___________________________________________________ ______________

1. The abbreviation "D & C" stands for "dilation an d curettage," the
"dilation of the cervix and curettement of the endo metrium." Stedman's Medical Dictionary 442, 485 (26th ed. 1995).

3. . . .

Q: Did you ever have your privileges at any of those hospitals either revoked, suspended or restr icted?

A: No.

. . . .

Q: Did you ever have any of your hospital pr ivileges in Boston or in the Boston area revoked, suspen ded or
restricted?

A: No.

Q: Have you ever been subject to any discipl inary proceedings by any--

(Objection and objection overruled)

Q: Dr. Sherman, have you ever been subject t o any disciplinary proceedings by a hospital or me dical society?

A: No.

Q: Have you ever been named as a defendant i n a medical malpractice suit?

(Objection and objection overruled)

A: I had a malpractice case about 15 years a go myself,

yes.

Q: Could you tell us what that was about?

A: It was settled somehow or other, but ther e was a routine case.

Q: Was that an OB/GYN case?

A: Yes.

Q: And it was routine?

A: Well, there was a D & C problem.

Q: You mentioned that over the course of you r practice you were licensed in four states that you to ld us about. Have any of those licenses ever been revoked
, suspended or restricted in any fashion?4A: No, I let them--I let them go because I h ad no

intention of going back to active OB.

Q: So you let your license in Massachusetts lapse?

A: Yes.

Q: And you let your license in Maryland laps e?

A: Yes.

Q: And you let your license in the District of Columbia lapse?

A: Yes.

. . . .

Q: Go back to your licensures, Doctor. Isn't it true that you had your license to practice medicine in the
District of Columbia revoked in 1977?

A: Yes, it was. Yes, but--

Q: Isn't it true that you had your license t o practice
medicine in Massachusetts revoked in 1983?

(Objection and objection overruled).

A: Yes.

Q: Isn't it true that you had your license t o practice medicine in Virginia revoked in 1979?

A: But it was reinstated.

Q: The question to you, Doctor, is isn't' it true that your license to practice medicine in Virgini a was revoked in 1979?

A: Yes.

Q: And it was not until 197--1993 that your license was reinstated in Virginia.

A: Yes.

Q: And wasn't you license in Virginia reinst ated on a probationary status?

A: Yes.. . . .

5Q: And according to the order of reinstateme nt you

were not to engage in the practice of medici ne until such time as you successfully passed the spe cial purpose examination.

A: Yes.

Q: Did you pass that examination?

A: I have to take it on March 17th.

Q: Do you have plans to take it?

A: Yes.

Q: But you have not yet complied with that p articular requirement.

A: Not yet.

Q: I see. If you have not complied with a pa rticular term or condition of reinstatement, has your license in Virginia in fact been reinstated?

A: Has it been reinstated?

Q: Has it been actually reinstated?

A: It has been reinstated subject to that, y es.

Q: Could you go into the state of Virginia t oday and treat patients?

A: I don't treat any patients at the--

Q: If you wanted to, could you, with your re stricted license, go into Virginia today and treat pa tients?

A: No.

Q: After your license was revoked in Massach usetts in March of 1983, you requested in 1992 reinsta tement, did you not?

A: Yes.

Q: That was denied, wasn't it?

A: Yes.

Q: Didn't you have a license to practice in Maine?A: Yes.

6Q: And you made a license renewal to Maine i n 1983

which was denied, didn't you?

A: At that time. It is under advisement for renewal at
this time.

. . . .

Q: Doctor you told us that 15 years ago you were subject --you were a defendant in a routine medical malpractice suit, weren't you?

A: Yes.

Q: You know where I'm going, don't you, Doct or?

A: Yes.

Q: Do you remember a patient by the name of Rita

McDowell?

A: Yes.

Q: Rita McDowell came into your clinic for a n abortion,
didn't she?

A: Yes.

Q: She was 16 years of age.

A: Yes.

Q: You performed an incomplete abortion on h er.

A: I did not.

Q: Doctor, as a result of the procedure that you performed on Rita McDowell, she died didn't she?

A: Absolutely not.

Q: Rita McDowell did not die?

A: She died at D.C. General Hospital as a re sult of a CVP line which perforated the lungs, and she died of
cardiac arrest on that score.

Q: Doctor, the reason that your license was revoked in
D.C. in 1977 was because of the Rita McDowel l case,
wasn't it?

A: Yes.7Q: And the reason that your license was revo ked in

D.C. was because you, as a practice, were pe rforming incomplete septic abortions on your patients

.

A: That is your opinion but not mine.

App. at 58-59, 60-67, 69-70.

Sherman was subsequently indicted for perjury under 18 U.S.C. S 1621. Count I of the indictment charged hi m with testifying that none of his licenses to practice me dicine had ever been revoked, suspended or restricted. See app . at 8-9. Count II charged him with testifying that he had al lowed his license to practice medicine in Massachusetts t o lapse, when in fact it had been revoked. See app. at 10. C ount III charged him with testifying that he had only allowe d his license to practice medicine in the District of Col umbia to lapse. It had also been revoked. See app. at 11. Co unt IV charged him with testifying that he had never been subject to disciplinary proceedings by a medical society, w hen in fact he had been subjected to such proceedings in t he District of Columbia, the Commonwealth of Massachus etts and the Commonwealth of Virginia. See app. at 12. C ount V charged him with testifying that 15 years prior h e had been named in a routine medical malpractice case in volving a D & C, which was ultimately settled, "when in fac t . . .
the Board of Medicine of the District of Columbia h ad found that the defendant performed an incomplete abortion on a 16-year old girl in order to increase his fees by m aking later surgical procedures necessary, resulting in the pat ient's death . . . [and] the revocation of defendant's lic ense to practice medicine . . . and . . . criminal prosecut ion." App.

at 13-14.

Sherman moved to dismiss the indictment, arguing th at the government had denied him the due process of la w by depriving him of the defense of recantation that is available under 18 U.S.C. S 1623, but not under 18 U.S.C. S16 21. See 18 U.S.C. S 1623(d). The district court agreed and
dismissed the indictment. The court ruled that the government had unfairly denied Sherman a defense to the criminal charges, and this appeal followed. Our sta ndard of review is plenary. King v. Ahrens, 16 F.3d 265, 270 (8th Cir. 1994). We have jurisdiction pursuant to 28 U.S .C. S 1291. Our standard of review is plenary.

8II. Discussion

A. The Distinctions Between the Two Statutes

The sole issue before us is whether the district co urt erred in dismissing the five-count indictment again st Sherman. The court held that the government lacked the discretion to charge Sherman under the general perj ury statute, 18 U.S.C. S 1621, rather than the false sw earing statute, 18 U.S.C. S 1623, as the latter statute mo re specifically applied to his conduct, and not prosec uting under that statute improperly deprived Sherman of t he
defense of recantation which is available under 18 U.S.C. S 1623(d), but which does not apply to 18 U.S.C. S 1621.

18 U.S.C. S 1621 states in relevant part as follows :

Whoever--

(1) having taken an oath before a competent tribunal . . . that any written testimony, declaratio n, deposition, or certificate by him . . . is true, willful ly and contrary to such oath states or subscribes any materi al matter which he does not believe to be true; or

(2) in any declaration, certificate, verific ation, or statement under penalty of perjury willfully subscribes as true any material matter which he does no t believe to be true;

is guilty of perjury and shall . . . be fine d under this title or imprisoned not more than 5 years or both.

(emphasis added).

18 U.S.C. S 1623 was enacted after S 1621 as a part of the Organized Crime Control Act of 1970. It provide s, in pertinent part, as follows:

Whoever under oath . . . in any proceeding b efore or ancillary to any court or grand jury of the United States, knowingly makes any false material d eclaration . . . shall be fined under this title or imp risoned not more than 5 years or both.

(emphasis added). However, the statute allows for t he
defense of recantation in limited situations. Secti on 1623(d)

states:

9Where, in the same continuous court or grand jury

proceeding in which a declaration is made, t he person making the declaration admits such declarati on to be false, such admission shall bar prosecution under this section if, at the time the admission is mad e, the declaration has not substantially affected t he proceeding, or it has not become manifest th at such falsity has been or will be exposed.

Subsection (e) of S 1623 adds that:

[p]roof beyond a reasonable doubt under this section is
sufficient for conviction. It shall not be n ecessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.

18 U.S.C. S 1623(e).

We have previously noted the distinctions between t he two statutes: 1) S 1623 does not require that the prosecution employ the "two-witness rule" for provi ng perjury; 2) S 1623 has a reduced mens rea requiring only that one "knowingly" commit perjury rather than "wi llfully," as is required under S 1621; and 3) S 1623 is restr icted to testimony before grand juries and courts and is the refore
more limited in reach than S 1621. See United State s v. Gross, 511 F.2d 910, 914-15 (3d Cir. 1975).

In United States v. Lardieri, 506 F.2d 319 (3d Cir. 1974), we examined the congressional intent behind these overlapping statutes. We stated:

[I]t was the congressional judgment that the overall purpose of Section 1623, obtaining more trut hful responses from witnesses before courts and g rand juries, would be best accomplished by facili tating perjury convictions for those who had violat ed their

oaths. In order to remove encumbrances from such convictions, Congress abandoned the two-witn ess rule, discontinued the requirement that the prosec utor prove
the truth of one of two irreconcilable state ments under oath, and required only a `knowing' rather t han a `willful' state of mind. The Senate Judiciar y Committee
described the intent of the Section as follo ws:

10A subpoena can compel the attendance of a wi tness

. . . But only the possibility of some sanct ion such as a perjury prosecution can provide any guaran tee that his testimony will be truthful.

Today, however, the possibility of perjury prosecution is not likely, and if it materializes, the l ikelihood of a conviction is not high. * * *

(Section 1623) creates a new federal false declaration provision that will not be circumscribed by rigid
common law rules of evidence.

506 F.2d at 322. (citing S. Rep. No. 91-617, at 57- 59 (1969)).

Thus, Congress changed the law in order to facilita te perjury prosecutions. It also sought to enhance the truthseeking process by allowing perjurers to recant per jured testimony and thereby escape conviction.

The congressional effort to improve truth t elling in judicial proceedings was thus twofold. Congr ess magnified the deterrent role of the criminal law by easing the Government's path to perjury conv ictions and the emphasis here was plainly on pressur e calculated to induce the witness to speak th e truth at all times. Congress also extended absolution to perjurers who recant under prescribed condit ions, admittedly an endeavor to secure truth throu gh correction of previously false testimony. Ea ch of these techniques has its own virtue, and it was, o f course, the prerogative of Congress to put them to u se; but it is evident that in some degree they unavoida bly must work at cross-purposes. Recantation, for all its value in ultimately unveiling the truth, may well pro ve to be a disincentive to veracity in the first instan ce; to the extent that a perjurer can sidestep prosecut ion simply by recanting, he is hardly the more prompted to tell the truth in the beginning. By the same token, t he deterrent effect of any statute punishing pe rjury is
weakened in the same measure that recantatio n holds out the promise of possible escape. And indi sputably, maximum deterrence of perjury is necessarily inconsistent with maximum range for recantat ion.

11United States v. Moore, 613 F.2d 1029, 1041 (D.C. C ir.

1979) (footnote omitted).

B. Prosecutorial Discretion

When Sherman testified about his background, he
violated 18 U.S.C. S 1621 as well as 18 U.S.C.S 162 3. With certain exceptions, when conduct runs afoul of more than one prohibition of the criminal law, prosecutors ha ve discretion to choose under which statute to prosecu te. United States v. Batchelder, 442 U.S. 114, 125 (197 9). "[W]hen an act violates more than one criminal stat ute, the government may prosecute under either statute so lo ng as it does not discriminate against any class of defen dants." Id. at 123-24 (1979).

In Batchelder, a previously convicted felon was con victed of receiving a firearm that had traveled in interst ate commerce, in violation of 18 U.S.C. S 922(h). 2 The trial court sentenced him to five years' imprisonment und er 18 U.S.C. S 924(a).3 The Court of Appeals for the Seve nth
Circuit affirmed the conviction but remanded for resentencing. The court noted that the substantive elements of S 922(h) are similar to those of 18 U.S .C. App. S 1202(a),4 a statute which allows for a maximum se ntence

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2. 18 U.S.C. S 922(h) provides, in pertinent part:

It shall be unlawful for any person--

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding

one year;

to receive any firearm or ammunition which h as been shipped or transported in interstate or foreign commerc e.

3. 18 U.S.C. S 924(a) provides, in pertinent part:

Whoever violates any provision of this chapt er . . . shall be fined

not more than $5,000, or imprisoned not more tha n five years, or both, and shall become eligible for parole as the Board of Parole shall
determine.

4. 18 U.S.C. App. S 1202(a) provides, in pertinent part:

Any person who--

12of two years, and that the sentencing court was thu s

restricted to a maximum sentence of two years.5

The Supreme Court reversed noting that regardless o f the apparent overlap between S 922(h) and S 1202(a), "n othing in the language, structure or legislative history o f the Omnibus Act," id. at 118, suggests that a defendant convicted under S 922(h) may be imprisoned no more than two years. The Court further stated that "[a]s we r ead the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other." Id. Similarly, S 1621 and S 1623 are separate statu tes that operate independently of each other, and the govern ment can normally elect upon which of those two statutes to base its prosecution. "[A] defendant has no constitution al right to elect which of two applicable federal statutes s hall be the basis of his indictment and prosecution." Id. Unite d States v. Ciampaglia, 628 F.2d 632, 639 (1st Cir. 1980).

However, notwithstanding the breadth of prosecutori al discretion, a prosecutor's charging decision cannot be "motivated solely by a desire to [achieve] a tactic al advantage by impairing the ability of a defendant t o mount an effective defense, [in such a case] a due proces s violation might be shown." Id. Here, Sherman argues that the prosecution did just that. The district court accep ted Sherman's argument that he was denied due process o f the law because the prosecutor deliberately secured a t actical

___________________________________________________ ______________

(1) has been convicted by a court of the Uni ted States or of a

State or any political subdivision thereof of a fe lony . . .

and who receives, possesses, or transports i n commerce or affecting commerce, after the date of enactment of thi s Act, any firearm

shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

5. The court based its decision upon three separate grounds. It reasoned that the ambiguity created by the two overlapping s tatutes had to be resolved in favor of the defendant, the shorter sen tence was contained in
the statute that was later in time and therefore th e earlier statute had been repealed by implication, and the longer senten ce authorized by S 922 was void for vagueness when considered in con junction with the shorter sentence authorized under S 1202(a).

13advantage in denying him a defense that he was enti tled to

assert by indicting him under S 1621 rather than S 1623.6 In dismissing the indictment, the district court st ated: "[w]e are of the view that allowing a prosecutor unbridle d discretion to charge a defendant under section 1621 in all cases where a defendant might assert a recantation defense would eliminate the defense and is inappropriate." D.Ct. Op. at 3 (citing United States v. Kahn, 472 F.2d 27 2 (2d Cir. 1973). Accordingly, we must examine the defens e of recantation and determine if Sherman's prosecution under 18 U.S.C. S 1621 improperly denied him a defense th at he
was entitled to assert.

1. Recantation Under 18 U.S.C. S 1623(d)

Under 18 U.S.C. S 1623(d) the defense of recantatio n is available: 1) "if, at the time the admission is mad e, the declaration has not substantially affected the proc eeding"; or 2) "it has not become manifest that such falsity has been or will be exposed." Here, the district court concl uded that Sherman could have asserted the defense as his perj ury had not substantially affected the proceeding when he recanted. Understandably, the court concluded that it was irrelevant that the perjury had been exposed prior to the
recantation because the statute was drafted in the disjunctive so Sherman needed only to satisfy one o f the two conditions, not both of them. The court held th at the government's reliance upon 18 U.S.C. S 1621 deprive d Sherman of the defense Congress wrote into S 1623 a nd that Sherman's right to due process of the law had
therefore been violated.

The government contends that the district court err ed in reading S 1623(d) in the disjunctive rather than th e conjunctive, because both prongs must be met before a recantation defense is available. Since Sherman's p erjury was exposed prior to his attempted recantation, the

___________________________________________________ ______________

6. Sherman also argues that the decision to indict him under 18 U.S.C. S 1621 denied him the equal protection of the law. The district court did not base its dismissal on Equal Protection grounds, and Sherman's resort to the Equal Protection Clause now is meritl ess, and we reject it
without discussion.

14government argues that his right to due process of the law

could not have been denied because he was not entit led to the recantation defense. Thus, our inquiry is focus ed upon
whether Sherman was entitled to the defense of reca ntation under 18 U.S.C. S 1623(d).

Statutory interpretation usually begins, and often ends, with the language of the statute. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 642 (1990). "Where . .. the statute's language is plain, `the sole function of the court is to enforce it according to its terms.' " We look to th e text of a statute to determine congressional intent, and look to legislative history only if the text is ambiguous. Id. 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 dra fters.' " New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 19 96).

18 U.S.C. S 1623(d) is deceptive in its apparent cl arity. 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, Congres s' twofold intent in enacting the legislation. If Sher man is correct, one could commit perjury with impunity. A witness
could violate his or her oath in the comfort of kno wing that no perjury prosecution was possible so long as he o r she recanted as soon as it appeared the perjury would b e disclosed. A recantation at that point, under Sherm an's interpretation, would shield the conduct even if th e judicial proceedings had been substantially affected by the false testimony. Similarly, a witness could escape prosec ution
even after the false nature of it had been disclose d and hope to successfully argue that the proceedings had not been substantially effected because there had been a recantation.

In Lardieri we examined the legislative history of S 1623 to determine legislative intent, and we are guided by that analysis. See also Batchelder, 442 U.S. at 120 ("Th at Congress intended to enact two independent gun cont rol statutes . . . is confirmed by the legislative hist ory of the Omnibus Act."). We do not believe that Congress int ended

15to "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. In Lard ieri, the defendant argued that the prosecutor who warned him against perjuring himself had a duty to also advise him of the recantation defense under S 1623(d), and that h e could not be prosecuted for perjury absent such a warning . He asserted that a contrary interpretation of 18 U.S.C

. S 1623(d) would frustrate the "legislative purpose embodied in [the statute] to encourage witnesses to divulge the truth by permitting them . . . to correct their false tes timony without . . . perjury convictions." 506 F.2d at 322 . In reviewing the legislative history we noted that "[t ]he recantation provision in section 1623(d) was modele d after
Section 210.25 of the New York Penal Law which codi fied the ruling of the New York Court of Appeals in Peop le v. Ezaugi," id. at 322-23, (citations omitted) and con cluded that "neither the New York Legislature nor the New York courts have found it necessary or appropriate to im pose [a duty to warn] on the prosecutor." Id. at 323.

Similarly, we note that, despite the disjunctive ph rasing in S 1623(d), the New York statute it was based upo n is drafted in the conjunctive. Section 210.25 of the N ew York

Penal Law states:

In any prosecution for perjury, it is an aff irmative
defense that the defendant retracted his fal se statement in the course of the proceeding in which it

was made before such false statement substan tially affected the proceeding and before it became manifest that its falsity was or would be exposed.

N.Y. Penal Code S 210.25 (McKinney 1965) (emphasis added). See also Lardieri, 506 F.2d at 323 n. 6. Mo reover, the wording of the New York statute is consistent w ith the court decision upon which it is based. In People v. Ezaugi, 2 N.Y. 2d 439 (1957), Ezaugi, a police officer, was convicted of perjury for giving false testimony to a grand ju ry investigating police corruption. In the grand jury, Ezaugi
had been asked about a conversation he had with a d rug dealer. Ezaugi had been extorting protection payoff s from the drug dealer, but unbeknownst to Ezaugi, the dea ler had

16gone to authorities and was cooperating with a poli ce

internal affairs investigation when Ezaugi spoke to him.

In the grand jury, Ezaugi admitted to having a disc ussion with the drug dealer but lied about its content. Th e conversation was surreptitiously recorded, and Ezau gi later became concerned that the prosecutor who questioned him before the grand jury may have known the true conte nt of the conversation. Ezaugi then requested another opportunity to testify before the grand jury. When he testified the second time he admitted that his prio r testimony had been false, but explained that he had been upset, and had not been certain that he was authori zed to divulge confidential police information. The indict ment followed, and Ezaugi was convicted of having perjur ed himself during his first appearance. On appeal he a rgued that, under New York case law, "even if it be assum ed that the answers are intentionally false and misleading, the defect is cured when the witness changes his statem ent and purports to tell the truth." Id. at 442. See Pe ople v. Gillette, 111 N.Y.S. 133 (1908) and King v. Carr, 1 Sid. 418 (1669). The Court of Appeals rejected that argument :

However useful that rule may be as an aid in arriving at testimonial truth, it does not follow tha t it should be made a rule of universal application, for to do so might just as surely encourage perjury, especially in those
situations where a witness does not recant u ntil he becomes convinced that his perjury no longer deceives. It is fundamental that a witness may not dis regard his
oath to tell the truth in the first instance . Accordingly, we hold that recantation as a defense is pri marily designed to correct knowingly false testimon y only if and when it is done promptly before the body conducting the inquiry has been deceived or misled to the harm and prejudice of its investigation, and when
no reasonable likelihood exists that the wit ness has learned that his perjury is known or may bec ome known to the authorities.

Id. (emphasis added). Thus, neither the text of the statute upon which S 1623(d) was modeled, nor the court dec ision that is codified by that statue support Sherman's p osition. They both require recantation before the perjury pr ejudices

17the investigation and before there is a reasonable likelihood

that the perjury will be discovered.

Inexplicably, though the New York statute pr ofessedly was the paragon of Section 1623(d)'s specifi cation on recantation, the latter as drafted set forth the preconditions in the disjunctive. The fact i s, however, that the congressional treatment of the reca ntation provision never deviated from the understand ing that the New York version had been basically inco rporated. Indeed, during hearings on the legislation p roposed, the Department of Justice included in its co mments to the House subcommittee an interpretation exp ressly and precisely paralleling New York's conjunc tive articulation of the preconditions.7 At no ti me did anyone dispute an intended identity between the two statutes in this regard, or reflect a consci ous comprehension of a significant difference. I nstead, the matter received very little attention, and r eferences on the point invariably passing were woefully i nconclusive.

United States v. Moore, 613 F.2d at 1042. (some foo tnotes omitted). We agree.

Although there is not a wealth of legislative histo ry available for S 1623, that which does exist reveals that Congress' intent was to encourage truthful testimon y by witnesses appearing before federal courts and grand juries by facilitating perjury prosecutions and providing narrowed opportunity for recantation.8 Thus, the Department of

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7. The Department's interpretation was:

If a witness recants in the course of the sa me continuous court or grand jury proceeding, a prosecution for fal se statements will be barred, provided that the repudiation is mad e before it has substantially affected the proceeding, and b efore it is evident

that the witness' false testimony will be exposed . This provides an
incentive to the witness who testifies false ly upon his first appearance to retract his testimony and avoi d prosecution by thereafter testifying truthfully.

Organized Crime Control: Hearings on S. 30 and Rela ted Proposals

Before Subcomm. No. 5 on the House Comm. of the Jud iciary, 91st Cong. 164 (1970).

8. S. Rep. No. 91-617, at 33, 57-59, 109-11, 149-15 0; reprinted in 1970 U.S.C.C.A.N. 4024; H.R. Rep. No. 91-1549, at 33, 47 -48 (1970); Lardieri,

497 F.2d at 321.18Justice stated that S 1623 is "an additional felony

provision" designed to "supplement, not supplant ex isting perjury provisions." Senate Report 617.

Here, the district court held that United States v. Smith, 35 F.3d 344 (8th Cir. 1994), and United States v. K ahn, 472 F.2d 272 (2nd Cir. 1973) support reading S 1623(d) in the disjunctive as suggested by the language of the sta tute. See D. Ct. Op. at 3-4. ("We will follow the holding of the United States Court of Appeals for the Eighth Circuit in S mith and apply the plain language of section 1623(d)."). How ever, we are not persuaded by the analysis in either Smith o r Kahn.

2. United States v. Smith and United States v. Kahn

In Smith, the court stated:

Because the wording of S 1623(d) is plain, s imple, and straightforward, the words must be accorded their normal meanings. The ordinary usage of the w ord "or" is disjunctive, indicating an alternative. C onstruing the word `or' to mean "and" is conjunctive, and is clearly in contravention of its ordinary usage. Thus, w e find the plain language of S 1623(d) controlling and accord the word `or' its ordinary, disjunctive meaning.

35 F.3d at 346 (citing United States v. Jones, 811 F.2d 444, 447 (8th Cir.1987)) (internal quotation marks omitt ed). The court concluded that reading the statute in the dis junctive was consistent with the intent of Congress, because it both provided a strong incentive to provide truthful tes timony in the first instance and to correct false testimony a fter it is given.

Reading the two conditions in the alternativ e, as the word "or" demands, the statute creates an in centive for witnesses to correct false testimony early i n the proceeding. Arguably, construing the word "o r" to mean "and" creates a statutory scheme providing a stronger incentive for witnesses to testify truthfull y at the outset; however, we defer to Congress's chos en scheme as manifested by its language which balances encouragement of truthful testimony and pena lties for perjury.

19Id. However, as noted above, reading the statute in the

disjunctive actually provides an incentive for perj ury, and even the Smith court recognized that such a result would be contrary to the intent of the statute. Moreover, th e court in
Smith did not address the obvious contradiction bet ween the disjunctive in S 1623(d) and the conjunctive in the law it is based upon.

Had so drastic a departure from the New York statute
as a switch from combination to alternative satisfaction of its carefully developed preconditions bee n really intended, we believe Congress would have sai d so . .. . Had Congress, after making crystal clear its purpose to promote truth telling to the hilt, intended the almost wide-open door to prevarication that disjunc tive construction of the statutory preconditions would furnish, it hardly would have failed to eluc idate its logic.

Moore, at 1042-43.

In Kahn, the defendant also challenged his convicti on under 18 U.S.C. S 1621, and asserted several reason s why he should have been charged under S 1623 instead. T he government's position there was similar to the posi tion adopted here, and included an assertion that the prosecution had absolute discretion to decide upon which statute to base a conviction. The court rejected th at argument out of hand.

While perhaps Congress constitutionally coul d have placed such wide discretion in the prosecuto r, wefind
no clear intention that it meant to do so he re. And, we find not a little disturbing the prospect of the government employing S 1621 whenever a recan tation exists, and S 1623 when one does not, simply to place perjury defendants in the most disadvantageo us trial position.

472 F.2d at 282. However, the court did not rule on that argument because the defendant had been afforded al l of the protection that he would have been entitled to under S 1623. Id. at 283. ("we need not reach the merits of the government's position [here] . . . assuming arguend o that the indictment named the wrong statute, there was n o

20prejudice to Kahn. The substantive elements . . . a re the

same under either statute, and the trial court appl ied the `two-witness' rule).9 Since the court did not addre ss the merits, the holding in Kahn is not as supportive of Sherman's position as the district court assumed. Moreover, to the extent that the analysis in Kahn d oes support Sherman's position, we are not persuaded by it.10

Rather, we agree with the analysis in United States v. Moore. The discussion there is perhaps the most comprehensive analysis of 18 U.S.C. S 1623(d) that has been conducted by a circuit court of appeals. There , the court stated that despite the commonly understood meaning of "or", the legislative history ofS 1623 r equired that courts imbue the word "or" with the meaning of "and". Moore, 613 F.2d at 1040. We agree.

Only if both statutory conditions exist at the time of recantation will Congress' dual purpose of deterrin g perjury through more effective prosecutions and encouraging truthful testimony be furthered. Congress clearly d id not intend to remove the twin impediments of the "two-w itness" rule and the burden of proving which of two conflic ting statements was actually false only to replace them with a "get out of jail free card." Accordingly, we conclu de that Congress intended to limit the defense of recantati on in 18 U.S.C. S 1623(d) only to those instances where the perjurer
recants before the "declaration has not substantial ly affected the proceeding," and "it has not become ma nifest that such falsity has been or will be exposed."

Here, that did not happen. Sherman's revelation cam e too late to allow him to rely upon it to defend himself from

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9. The court does not focus on whether the trial co urt charged the jury as to the mens rea requirement of S 1623 as opposed to the higher requirement in the statute under which the defendan t was convicted.

10. We note that, since we conclude that Sherman wa s not entitled to the defense of recantation under 18 U.S.C. S1623(d) , we need not address whether the Constitution would preclude the prosecutor from prosecuting under S 1621 and thereby depriving Sher man of a defense to which he would have otherwise been entitled. It may well be, as suggested in Kahn, that such a decision would arous e due process

concerns.

21prosecution under the general perjury statute. Acco rdingly,

we must reject his argument that the prosecutor's d ecision to charge him under 18 U.S.C. S 1621 rather than 18 U.S.C. S 1623 deprived him of a defense in violatio n of his right to due process of the law.

The reasoning in Moore, which we today adopt, is consistent with the decisions of the vast majority of courts of appeals that have addressed the overlap of these two statutes. In United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985), the court stated that

[section 1623] lists two temporal requiremen ts that must be satisfied in order for a recanting w itness to avoid prosecution for perjury: 1) the recant ation must be made before the prior false testimony has substantially affected the relevant proceedi ng, and 2) it
must be made before it has become manifest t hat the falsity of the prior testimony has been or w ill be exposed.

Similarly, in United States v. Fornaro, 894 F.2d 50 8, 510 (2d Cir. 1990), the Court of Appeals for the Second Circuit stated that "[w]e agree . . . that the more plausib le interpretation of the section makes fulfillment of both conditions necessary for recantation to bar prosecu tion for perjury." Finally, in United States v. Scrimgeour, 636 F.2d 1019, 1024 (5th Cir. 1981), the court opined that " [t]he conjunctive reading of Section 1623(d) comports wit h accepted principles of statutory construction and i s supported by the underlying congressional intent."

Here, Sherman answered "yes" when defense counsel began his impeachment of Sherman by asking: "[y]ou know where I am going with this don't you?" It is diffic ult to imagine a scenario that more clearly demonstrates w hy Congress could not have intended S 1623(d) to be re ad in the disjunctive.

If the two preconditions which Section 1623( d) specifies are alternative in nature, a perjurer can av oid prosecution by the simple expedient of recan ting before his perjury adversely affects the proceeding , even after his misdeed has been laid bare; if, however, both preconditions must exist before recantation aborts the

22prosecution, there is much less tug-of-war w ithin

Congress' dual methodology for veracity-prom otion.

Moore, 613 F.2d at 1041.

In interpreting 18 U.S.C. S 1623(d), it may appear that there is tension between the language of the statut e and the canons of statutory construction. However, "[t] he strictconstruction rule governing interpretation of crimi nal statute is not [ ] to be woodenly applied." Strict construction "cannot provide a substitute for common sense, prec edent and legislative history . . ." Moore, 613 F.2d at 1 044 (quoting United States v. Standard Oil Co., 384 U.S . 224, 225 (1966)). Our prior decision in Lardieri affords us the benefit of the legislative history, and that histor y along with the judicial and statutory antecedents of 18 U.S.C. S 1623(d) leave no doubt as to the congressional in tent in enacting that statute.

C. Repeal

The district court also accepted Sherman's argument that
since 18 U.S.C. S 1623 was enacted after 18 U.S.C. S 1621, Congress intended to repeal S 1621. However,"repeal s by implication are not favored . . . implicit repeal r equires a `clear and manifest' indication of congressional in tent." United States v. Curran, 20 F.3d 560, 565 (3d Cir. 1994). See also Morton v. Mancari, 417 U.S. 535 (1974).

The courts are not at liberty to pick and ch oose among congressional enactments, and when two statu tes are capable of co-existence, it is the duty of t he courts, absent a clearly expressed congressional int ention to the contrary, to regard each as effective. W hen there are two acts upon the same subject, the rule is to give effect to both if possible . . . . The inten tion of the legislature to repeal must be clear and mani fest.

Id. at 551.11 Similarly, in Batchelder, the Court n oted that

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11. In deciding whether the Equal Employment Opport unity Act of 1972, 42 U.S.C. S 2000e, et seq, repealed the Indian Reor ganization Act of 1934, 25 U.S.C. S 472, the Court recognized that "t he Indian preference statute is a specific provision applying to a very specific situation."

Id. at

23a statute cannot "be interpreted as implicitly repe aling

[another statute] whenever a defendant's conduct mi ght violate both Titles." Batchelder, 442 U.S. at 122. The Court stated that "the legislative intent to repeal must be manifest in the `positive repugnancy' between the provisions ." Id. (quoting United States v. Borden Co., 308 U.S. 188, 199 (1939)). Here, no such repugnancy exists. According ly, the
district court erred when it decided that S 1623 im pliedly repealed S 1621.

D. The Greater Specificity of S 1623

Does Not Control

The district court also concluded that S 1623 was t he appropriate statute to rely upon because it is more specific than S 1621. See D.Ct. Op. at 3. The Court's reject ion of this position in Batchelder, however, applies with equal force to Sherman's argument here. See supra p.25. A bsent congressional intent to the contrary, or a violatio n of the right to due process of the law, a prosecutor "may chose between either of two statutes so long as it does n ot discriminate. The only exception arises where Congr ess clearly intended that one statute supplant another; the fact that one statute is more specific than the other is not sufficient." United States v. Hopkins, 916 F.2d 207 , 218 (5th Cir. 1990) (citing United States v. Zabel, 702 F.2d 704, 707-08 (8th Cir. 1983)). See also Curran, 20 F.3d a t 565.

In concluding, we note that neither the district co urt nor the defendant focus upon the rule of lenity, we not e that
doctrine would not alter our conclusion. See Dunn v . United States, 442 U.S. 100, (1979). That doctrine would r equire us to interpret an ambiguity in a criminal statute in favor of a defendant. However, we conclude that the

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550. Conversely, the Equal Employment Opportunity A ct, the Court noted, was "of general application," id. , and "[w] here there is no clear intention otherwise, a specific statute will not be controlled or
nullified by a general one, regardless of the priority of ena ctment." Id. at 550-51. We do not think that this determination has any bea ring on the case at bar. The Court merely states that the one statute i s not privileged over the other, where there is no congressional language to the contrary.

24congressional intent is clear and the rule therefor e has no

application. See Batchelder, 442 U.S. at 120. "The doctrine that ambiguities in criminal statutes must be resol ved in favor of lenity is not applicable here since there is no ambiguity to resolve."

III. Conclusion

For the foregoing reasons, we will reverse the orde r of the district court dismissing the government's indictme nt against Sherman and remand for proceedings consiste nt with this opinion.12

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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12. Judge Alito concurs in this decision because he does not believe that the subsequent enactment of 18 U.S.C. S 1623 in any way affected 18 U.S.C. S 1621, and because he does not believe that the Constitution or any other rule of federal law requires that charges be brought under S 1623, rather than S 1621, in those cases in which alleged criminal conduct falls within the purview of both statutes. See United States v. Batchelder, 442 U.S. 114, 125 (1979).

25