1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1998

United States v. Sherman

Precedential or Non-Precedential:

Docket 97-7073

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Recommended Citation

"United States v. Sherman" (1998). 1998 Decisions. Paper 177.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/177
Filed 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 Court 

for the Middle District of Pennsylvania dismissing a fivecount indictment against Robert Sherman in which he was 

charged with committing perjury before a federal grand jury 

in violation of 18 U.S.C. S 1621. The district court held that 

the prosecution improperly charged Sherman under that 

general perjury statute rather than the more specific false 

declarations statute, 18 U.S.C. S 1623, thereby denying him 

the ability to assert the recantation defense available under 

18 U.S.C. S 1623(d). For the reasons that follow, we will 

reverse and remand for further proceedings consistent 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 Gassert 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 cross examined 

about his qualifications as an expert, Sherman had testified 

that he was licensed to practice medicine in the District of 

Columbia, Virginia and Massachusetts and that none of his 

licenses had ever been revoked, suspended or restricted. 

App. at 63. He further testified that he had never been 

subject to any disciplinary proceedings by any hospital or 

medical society. App. at 62. He did, however, acknowledge 

 2 
that he had once been named in a medical malpractice 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 licenses 

had been revoked, and defense counsel ultimately elicited 

this admission from Sherman. Because that testimony is at 

the heart of this appeal, we will quote the relevant exchange 

at length: 

 Q: At the present time you are licensed to practice 

 medicine in Virginia. 

 A: Yes. 

 Q: Over the course of your practice, which has been 

 about how many years now? 

 A: Thirty years. 

 Q: Okay, over the course of your practice, how many 

 states have you ever been licensed to practice 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 retirement in 

 1985, do you remember what states you had licenses 

 in? 

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

 Q: Well, were you licensed to practice medicine 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 and curettage," the 

"dilation of the cervix and curettement of the endometrium." 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 restricted? 

 A: No. 

 . . . . 

 Q: Did you ever have any of your hospital privileges in 

 Boston or in the Boston area revoked, suspended or 

 restricted? 

 A: No. 

 Q: Have you ever been subject to any disciplinary 

 proceedings by any-- 

 (Objection and objection overruled) 

 Q: Dr. Sherman, have you ever been subject to any 

 disciplinary proceedings by a hospital or medical 

 society? 

 A: No. 

 Q: Have you ever been named as a defendant in a 

 medical malpractice suit? 

 (Objection and objection overruled) 

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

 yes. 

 Q: Could you tell us what that was about? 

 A: It was settled somehow or other, but there 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 your practice 

 you were licensed in four states that you told us about. 

 Have any of those licenses ever been revoked, 

 suspended or restricted in any fashion? 
 4 
 A: No, I let them--I let them go because I had 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 lapse? 

 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 to practice 

 medicine in Massachusetts revoked in 1983? 

 (Objection and objection overruled). 

 A: Yes. 

 Q: Isn't it true that you had your license to 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 Virginia 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 reinstated on a 

 probationary status? 

 A: Yes. 
 . . . . 

 5 
 Q: And according to the order of reinstatement you 

 were not to engage in the practice of medicine until 

 such time as you successfully passed the special 

 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 particular 

 requirement. 

 A: Not yet. 

 Q: I see. If you have not complied with a particular 

 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, yes. 

 Q: Could you go into the state of Virginia today and 

 treat patients? 

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

 Q: If you wanted to, could you, with your restricted 

 license, go into Virginia today and treat patients? 

 A: No. 

 Q: After your license was revoked in Massachusetts in 

 March of 1983, you requested in 1992 reinstatement, 

 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. 

 6 
 Q: And you made a license renewal to Maine in 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, Doctor? 

 A: Yes. 

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

 McDowell? 

 A: Yes. 

 Q: Rita McDowell came into your clinic for an abortion, 

 didn't she? 

 A: Yes. 

 Q: She was 16 years of age. 

 A: Yes. 

 Q: You performed an incomplete abortion on her. 

 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 result 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 McDowell case, 

 wasn't it? 

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

 D.C. was because you, as a practice, were performing 

 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 him with 

testifying that none of his licenses to practice medicine had 

ever been revoked, suspended or restricted. See app. at 8-9. 

Count II charged him with testifying that he had allowed 

his license to practice medicine in Massachusetts to lapse, 

when in fact it had been revoked. See app. at 10. Count III 

charged him with testifying that he had only allowed his 

license to practice medicine in the District of Columbia to 

lapse. It had also been revoked. See app. at 11. Count IV 

charged him with testifying that he had never been subject 

to disciplinary proceedings by a medical society, when in 

fact he had been subjected to such proceedings in the 

District of Columbia, the Commonwealth of Massachusetts 

and the Commonwealth of Virginia. See app. at 12. Count 

V charged him with testifying that 15 years prior he had 

been named in a routine medical malpractice case involving 

a D & C, which was ultimately settled, "when in fact . . . 

the Board of Medicine of the District of Columbia had found 

that the defendant performed an incomplete abortion on a 

16-year old girl in order to increase his fees by making later 

surgical procedures necessary, resulting in the patient's 

death . . . [and] the revocation of defendant's license to 

practice medicine . . . and . . . criminal prosecution." App. 

at 13-14. 

Sherman moved to dismiss the indictment, arguing that 

the government had denied him the due process of law 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. S1621. 

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 standard 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. 

 8 
II. Discussion 

A. The Distinctions Between the Two Statutes 

The sole issue before us is whether the district court 

erred in dismissing the five-count indictment against 

Sherman. The court held that the government lacked the 

discretion to charge Sherman under the general perjury 

statute, 18 U.S.C. S 1621, rather than the false swearing 

statute, 18 U.S.C. S 1623, as the latter statute more 

specifically applied to his conduct, and not prosecuting 

under that statute improperly deprived Sherman of the 

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, declaration, deposition, 

 or certificate by him . . . is true, willfully and contrary 

 to such oath states or subscribes any material matter 

 which he does not believe to be true; or 

 (2) in any declaration, certificate, verification, or 

 statement under penalty of perjury willfully subscribes 

 as true any material matter which he does not believe 

 to be true; 

 is guilty of perjury and shall . . . be fined 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 provides, in 

pertinent part, as follows: 

 Whoever under oath . . . in any proceeding before or 

 ancillary to any court or grand jury of the United 

 States, knowingly makes any false material declaration 

 . . . shall be fined under this title or imprisoned not 

 more than 5 years or both. 

(emphasis added). However, the statute allows for the 

defense of recantation in limited situations. Section 1623(d) 

states: 

 9 
 Where, in the same continuous court or grand jury 

 proceeding in which a declaration is made, the person 

 making the declaration admits such declaration to be 

 false, such admission shall bar prosecution under this 

 section if, at the time the admission is made, the 

 declaration has not substantially affected the 

 proceeding, or it has not become manifest that 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 necessary 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 the 

two statutes: 1) S 1623 does not require that the 

prosecution employ the "two-witness rule" for proving 

perjury; 2) S 1623 has a reduced mens rea requiring only 

that one "knowingly" commit perjury rather than "willfully," 

as is required under S 1621; and 3) S 1623 is restricted to 

testimony before grand juries and courts and is therefore 

more limited in reach than S 1621. See United States 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 truthful 

 responses from witnesses before courts and grand 

 juries, would be best accomplished by facilitating 

 perjury convictions for those who had violated their 

 oaths. In order to remove encumbrances from such 

 convictions, Congress abandoned the two-witness rule, 

 discontinued the requirement that the prosecutor prove 

 the truth of one of two irreconcilable statements under 

 oath, and required only a `knowing' rather than a 

 `willful' state of mind. The Senate Judiciary Committee 

 described the intent of the Section as follows: 

 10 
 A subpoena can compel the attendance of a witness 

 . . . But only the possibility of some sanction such as 

 a perjury prosecution can provide any guarantee that 

 his testimony will be truthful. 

 Today, however, the possibility of perjury prosecution 

 is not likely, and if it materializes, the likelihood 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 facilitate 

perjury prosecutions. It also sought to enhance the truthseeking process by allowing perjurers to recant perjured 

testimony and thereby escape conviction. 

 The congressional effort to improve truth telling in 

 judicial proceedings was thus twofold. Congress 

 magnified the deterrent role of the criminal law by 

 easing the Government's path to perjury convictions 

 and the emphasis here was plainly on pressure 

 calculated to induce the witness to speak the truth at 

 all times. Congress also extended absolution to 

 perjurers who recant under prescribed conditions, 

 admittedly an endeavor to secure truth through 

 correction of previously false testimony. Each of these 

 techniques has its own virtue, and it was, of course, 

 the prerogative of Congress to put them to use; but it 

 is evident that in some degree they unavoidably must 

 work at cross-purposes. Recantation, for all its value in 

 ultimately unveiling the truth, may well prove to be a 

 disincentive to veracity in the first instance; to the 

 extent that a perjurer can sidestep prosecution simply 

 by recanting, he is hardly the more prompted to tell the 

 truth in the beginning. By the same token, the 

 deterrent effect of any statute punishing perjury is 

 weakened in the same measure that recantation holds 

 out the promise of possible escape. And indisputably, 

 maximum deterrence of perjury is necessarily

 inconsistent with maximum range for recantation. 

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

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 1623. With 

certain exceptions, when conduct runs afoul of more than 

one prohibition of the criminal law, prosecutors have 

discretion to choose under which statute to prosecute. 

United States v. Batchelder, 442 U.S. 114, 125 (1979). 

"[W]hen an act violates more than one criminal statute, the 

government may prosecute under either statute so long as 

it does not discriminate against any class of defendants." 

Id. at 123-24 (1979). 

In Batchelder, a previously convicted felon was convicted 

of receiving a firearm that had traveled in interstate 

commerce, in violation of 18 U.S.C. S 922(h). 2 The trial 

court sentenced him to five years' imprisonment under 18 

U.S.C. S 924(a).3 The Court of Appeals for the Seventh 

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 sentence 

_________________________________________________________________ 

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 has been shipped or 

 transported in interstate or foreign commerce. 

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

 Whoever violates any provision of this chapter . . . shall be fined 

not 

 more than $5,000, or imprisoned not more than 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-- 

 12 
of two years, and that the sentencing court was thus 

restricted to a maximum sentence of two years.5 

The Supreme Court reversed noting that regardless of the 

apparent overlap between S 922(h) and S 1202(a), "nothing 

in the language, structure or legislative history of 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 read 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 statutes that 

operate independently of each other, and the government 

can normally elect upon which of those two statutes to base 

its prosecution. "[A] defendant has no constitutional right 

to elect which of two applicable federal statutes shall be the 

basis of his indictment and prosecution." Id. United States 

v. Ciampaglia, 628 F.2d 632, 639 (1st Cir. 1980). 

However, notwithstanding the breadth of prosecutorial 

discretion, a prosecutor's charging decision cannot be 

"motivated solely by a desire to [achieve] a tactical 

advantage by impairing the ability of a defendant to mount 

an effective defense, [in such a case] a due process violation 

might be shown." Id. Here, Sherman argues that the 

prosecution did just that. The district court accepted 

Sherman's argument that he was denied due process of the 

law because the prosecutor deliberately secured a tactical 

_________________________________________________________________ 

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

State 

 or any political subdivision thereof of a felony . . . 

 and who receives, possesses, or transports in commerce or affecting 

 commerce, after the date of enactment of this 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 statutes had to be 

resolved in favor of the defendant, the shorter sentence was contained in 

the statute that was later in time and therefore the earlier statute had 

been repealed by implication, and the longer sentence authorized by 

S 922 was void for vagueness when considered in conjunction with the 

shorter sentence authorized under S 1202(a). 

 13 
advantage in denying him a defense that he was entitled to 

assert by indicting him under S 1621 rather than S 1623.6 

In dismissing the indictment, the district court stated: "[w]e 

are of the view that allowing a prosecutor unbridled 

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 272 (2d 

Cir. 1973). Accordingly, we must examine the defense of 

recantation and determine if Sherman's prosecution under 

18 U.S.C. S 1621 improperly denied him a defense that 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 recantation is 

available: 1) "if, at the time the admission is made, the 

declaration has not substantially affected the proceeding"; 

or 2) "it has not become manifest that such falsity has been 

or will be exposed." Here, the district court concluded that 

Sherman could have asserted the defense as his perjury 

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 of the 

two conditions, not both of them. The court held that the 

government's reliance upon 18 U.S.C. S 1621 deprived 

Sherman of the defense Congress wrote into S 1623 and 

that Sherman's right to due process of the law had 

therefore been violated. 

The government contends that the district court erred in 

reading S 1623(d) in the disjunctive rather than the 

conjunctive, because both prongs must be met before a 

recantation defense is available. Since Sherman's perjury 

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 meritless, and we reject it 

without discussion. 

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

could not have been denied because he was not entitled to 

the recantation defense. Thus, our inquiry is focused upon 

whether Sherman was entitled to the defense of recantation 

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 the 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 drafters.' " 

New Rock Asset Partners, L.P. v. Preferred Entity 

Advancements, Inc., 101 F.3d 1492, 1498 (3d Cir. 1996). 

18 U.S.C. S 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 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 ("That 

Congress intended to enact two independent gun control 

statutes . . . is confirmed by the legislative history of the 

Omnibus Act."). We do not believe that Congress intended 

 15 
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. In Lardieri, 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 he 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 testimony 

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 modeled after 

Section 210.25 of the New York Penal Law which codified 

the ruling of the New York Court of Appeals in People v. 

Ezaugi," id. at 322-23, (citations omitted) and concluded 

that "neither the New York Legislature nor the New York 

courts have found it necessary or appropriate to impose [a 

duty to warn] on the prosecutor." Id. at 323. 

Similarly, we note that, despite the disjunctive phrasing 

in S 1623(d), the New York statute it was based upon is 

drafted in the conjunctive. Section 210.25 of the New York 

Penal Law states: 

 In any prosecution for perjury, it is an affirmative 

 defense that the defendant retracted his false 

 statement in the course of the proceeding in which it 

 was made before such false statement substantially 

 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. Moreover, 

the wording of the New York statute is consistent with 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 jury 

investigating police corruption. In the grand jury, Ezaugi 

had been asked about a conversation he had with a drug 

dealer. Ezaugi had been extorting protection payoffs from 

the drug dealer, but unbeknownst to Ezaugi, the dealer had 

 16 
gone to authorities and was cooperating with a police 

internal affairs investigation when Ezaugi spoke to him. 

In the grand jury, Ezaugi admitted to having a discussion 

with the drug dealer but lied about its content. The 

conversation was surreptitiously recorded, and Ezaugi later 

became concerned that the prosecutor who questioned him 

before the grand jury may have known the true content of 

the conversation. Ezaugi then requested another 

opportunity to testify before the grand jury. When he 

testified the second time he admitted that his prior 

testimony had been false, but explained that he had been 

upset, and had not been certain that he was authorized to 

divulge confidential police information. The indictment 

followed, and Ezaugi was convicted of having perjured 

himself during his first appearance. On appeal he argued 

that, under New York case law, "even if it be assumed that 

the answers are intentionally false and misleading, the 

defect is cured when the witness changes his statement 

and purports to tell the truth." Id. at 442. See People 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 that 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 until he 

 becomes convinced that his perjury no longer deceives. 

 It is fundamental that a witness may not disregard his 

 oath to tell the truth in the first instance. Accordingly, 

 we hold that recantation as a defense is primarily 

 designed to correct knowingly false testimony 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 witness has 

 learned that his perjury is known or may become 

 known to the authorities. 

Id. (emphasis added). Thus, neither the text of the statute 

upon which S 1623(d) was modeled, nor the court decision 

that is codified by that statue support Sherman's position. 

They both require recantation before the perjury prejudices 

 17 
the investigation and before there is a reasonable likelihood 

that the perjury will be discovered. 

 Inexplicably, though the New York statute professedly 

 was the paragon of Section 1623(d)'s specification on 

 recantation, the latter as drafted set forth the 

 preconditions in the disjunctive. The fact is, however, 

 that the congressional treatment of the recantation 

 provision never deviated from the understanding that 

 the New York version had been basically incorporated. 

 Indeed, during hearings on the legislation proposed, 

 the Department of Justice included in its comments to 

 the House subcommittee an interpretation expressly 

 and precisely paralleling New York's conjunctive 

 articulation of the preconditions.7 At no time did 

 anyone dispute an intended identity between the two 

 statutes in this regard, or reflect a conscious 

 comprehension of a significant difference. Instead, the 

 matter received very little attention, and references on 

 the point invariably passing were woefully inconclusive. 

United States v. Moore, 613 F.2d at 1042. (some footnotes 

omitted). We agree. 

Although there is not a wealth of legislative history 

available for S 1623, that which does exist reveals that 

Congress' intent was to encourage truthful testimony by 

witnesses appearing before federal courts and grand juries 

by facilitating perjury prosecutions and providing narrowed 

opportunity for recantation.8 Thus, the Department of 

_________________________________________________________________ 

7. The Department's interpretation was: 

 If a witness recants in the course of the same continuous court or 

 grand jury proceeding, a prosecution for false statements will be 

 barred, provided that the repudiation is made before it has 

 substantially affected the proceeding, and before it is evident 

that 

 the witness' false testimony will be exposed. This provides an 

 incentive to the witness who testifies falsely upon his first 

 appearance to retract his testimony and avoid prosecution by 

 thereafter testifying truthfully. 

Organized Crime Control: Hearings on S. 30 and Related Proposals 

Before Subcomm. No. 5 on the House Comm. of the Judiciary, 91st 

Cong. 164 (1970). 

8. S. Rep. No. 91-617, at 33, 57-59, 109-11, 149-150; 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. 
 18 
Justice stated that S 1623 is "an additional felony

provision" designed to "supplement, not supplant existing 

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. Kahn, 472 

F.2d 272 (2nd Cir. 1973) support reading S 1623(d) in the 

disjunctive as suggested by the language of the statute. See 

D. Ct. Op. at 3-4. ("We will follow the holding of the United 

States Court of Appeals for the Eighth Circuit in Smith and 

apply the plain language of section 1623(d)."). However, we 

are not persuaded by the analysis in either Smith or 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, simple, and 

 straightforward, the words must be accorded their 

 normal meanings. The ordinary usage of the word "or" 

 is disjunctive, indicating an alternative. Construing the 

 word `or' to mean "and" is conjunctive, and is clearly in 

 contravention of its ordinary usage. Thus, we 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 omitted). The 

court concluded that reading the statute in the disjunctive 

was consistent with the intent of Congress, because it both 

provided a strong incentive to provide truthful testimony in 

the first instance and to correct false testimony after it is 

given. 

 Reading the two conditions in the alternative, as the 

 word "or" demands, the statute creates an incentive for 

 witnesses to correct false testimony early in the 

 proceeding. Arguably, construing the word "or" to mean 

 "and" creates a statutory scheme providing a stronger 

 incentive for witnesses to testify truthfully at the 

 outset; however, we defer to Congress's chosen scheme 

 as manifested by its language which balances

 encouragement of truthful testimony and penalties for 

 perjury. 

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

disjunctive actually provides an incentive for perjury, and 

even the Smith court recognized that such a result would be 

contrary to the intent of the statute. Moreover, the court in 

Smith did not address the obvious contradiction between 

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 been really 

 intended, we believe Congress would have said 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 disjunctive 

 construction of the statutory preconditions would 

 furnish, it hardly would have failed to elucidate its 

 logic. 

Moore, at 1042-43. 

In Kahn, the defendant also challenged his conviction 

under 18 U.S.C. S 1621, and asserted several reasons why 

he should have been charged under S 1623 instead. The 

government's position there was similar to the position 

adopted here, and included an assertion that the 

prosecution had absolute discretion to decide upon which 

statute to base a conviction. The court rejected that 

argument out of hand. 

 While perhaps Congress constitutionally could have 

 placed such wide discretion in the prosecutor, wefind 

 no clear intention that it meant to do so here. And, we 

 find not a little disturbing the prospect of the 

 government employing S 1621 whenever a recantation 

 exists, and S 1623 when one does not, simply to place 

 perjury defendants in the most disadvantageous trial 

 position. 

472 F.2d at 282. However, the court did not rule on that 

argument because the defendant had been afforded all 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 arguendo that 

the indictment named the wrong statute, there was no 

 20 
prejudice to Kahn. The substantive elements . . . are the 

same under either statute, and the trial court applied the 

`two-witness' rule).9 Since the court did not address 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 does 

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 required 

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 deterring perjury 

through more effective prosecutions and encouraging

truthful testimony be furthered. Congress clearly did not 

intend to remove the twin impediments of the "two-witness" 

rule and the burden of proving which of two conflicting 

statements was actually false only to replace them with a 

"get out of jail free card." Accordingly, we conclude that 

Congress intended to limit the defense of recantation in 18 

U.S.C. S 1623(d) only to those instances where the perjurer 

recants before the "declaration has not substantially 

affected the proceeding," and "it has not become manifest 

that such falsity has been or will be exposed." 

Here, that did not happen. Sherman's revelation came too 

late to allow him to rely upon it to defend himself from 

_________________________________________________________________ 

9. The court does not focus on whether the trial court charged the jury 

as to the mens rea requirement of S 1623 as opposed to the higher 

requirement in the statute under which the defendant was convicted. 

10. We note that, since we conclude that Sherman was 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 Sherman of a defense to 

which he would have otherwise been entitled. It may well be, as 

suggested in Kahn, that such a decision would arouse due process 

concerns. 

 21 
prosecution under the general perjury statute. Accordingly, 

we must reject his argument that the prosecutor's decision 

to charge him under 18 U.S.C. S 1621 rather than 18

U.S.C. S 1623 deprived him of a defense in violation 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 requirements that 

 must be satisfied in order for a recanting witness to 

 avoid prosecution for perjury: 1) the recantation must 

 be made before the prior false testimony has

 substantially affected the relevant proceeding, and 2) it 

 must be made before it has become manifest that the 

 falsity of the prior testimony has been or will be 

 exposed. 

Similarly, in United States v. Fornaro, 894 F.2d 508, 510 

(2d Cir. 1990), the Court of Appeals for the Second Circuit 

stated that "[w]e agree . . . that the more plausible 

interpretation of the section makes fulfillment of both 

conditions necessary for recantation to bar prosecution 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 with 

accepted principles of statutory construction and is 

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 difficult to 

imagine a scenario that more clearly demonstrates why 

Congress could not have intended S 1623(d) to be read in 

the disjunctive. 

 If the two preconditions which Section 1623(d) specifies 

 are alternative in nature, a perjurer can avoid 

 prosecution by the simple expedient of recanting 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 

 22 
 prosecution, there is much less tug-of-war within 

 Congress' dual methodology for veracity-promotion. 

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 statute and 

the canons of statutory construction. However, "[t]he strictconstruction rule governing interpretation of criminal 

statute is not [ ] to be woodenly applied." Strict construction 

"cannot provide a substitute for common sense, precedent 

and legislative history . . ." Moore, 613 F.2d at 1044 

(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 history along with 

the judicial and statutory antecedents of 18 U.S.C.

S 1623(d) leave no doubt as to the congressional intent 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,"repeals by 

implication are not favored . . . implicit repeal requires a 

`clear and manifest' indication of congressional intent." 

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 choose among 

 congressional enactments, and when two statutes are 

 capable of co-existence, it is the duty of the courts, 

 absent a clearly expressed congressional intention to 

 the contrary, to regard each as effective. When there 

 are two acts upon the same subject, the rule is to give 

 effect to both if possible . . . . The intention of the 

 legislature to repeal must be clear and manifest. 

Id. at 551.11 Similarly, in Batchelder, the Court noted that 

_________________________________________________________________ 

11. In deciding whether the Equal Employment Opportunity Act of 1972, 

42 U.S.C. S 2000e, et seq, repealed the Indian Reorganization Act of 

1934, 25 U.S.C. S 472, the Court recognized that "the Indian preference 

statute is a specific provision applying to a very specific situation." 

Id. at 

 23 
a statute cannot "be interpreted as implicitly repealing 

[another statute] whenever a defendant's conduct might 

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. Accordingly, the 

district court erred when it decided that S 1623 impliedly 

repealed S 1621. 

D. The Greater Specificity of S 1623 

 Does Not Control 

The district court also concluded that S 1623 was the 

appropriate statute to rely upon because it is more specific 

than S 1621. See D.Ct. Op. at 3. The Court's rejection of 

this position in Batchelder, however, applies with equal 

force to Sherman's argument here. See supra p.25. Absent 

congressional intent to the contrary, or a violation of the 

right to due process of the law, a prosecutor "may chose 

between either of two statutes so long as it does not 

discriminate. The only exception arises where Congress 

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 at 565. 

In concluding, we note that neither the district court nor 

the defendant focus upon the rule of lenity, we note that 

doctrine would not alter our conclusion. See Dunn v. United 

States, 442 U.S. 100, (1979). That doctrine would require 

us to interpret an ambiguity in a criminal statute in favor 

of a defendant. However, we conclude that the 

_________________________________________________________________ 

550. Conversely, the Equal Employment Opportunity Act, 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 enactment." Id. at 550-51. 

We do not think that this determination has any bearing on the case at 

bar. The Court merely states that the one statute is not privileged over 

the other, where there is no congressional language to the contrary. 

 24 
congressional intent is clear and the rule therefore has no 

application. See Batchelder, 442 U.S. at 120. "The doctrine 

that ambiguities in criminal statutes must be resolved 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 order of the 

district court dismissing the government's indictment 

against Sherman and remand for proceedings consistent 

with this opinion.12 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

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