1761. Perjury Cases -- Sentencing Issues

Section 2J1.3 of the Sentencing Guidelines applies to perjury and subornation of perjury offenses and, since November 1, 1993, to witness bribery. In adopting section 2J1.3, the United States Sentencing Commission generally increased perjury sentences in comparison to pre-Guideline practice, choosing to calculate them similarly to those for obstruction of justice convictions (section 2J1.2). If perjury or subornation of perjury occurs in a specific criminal offense, section 2X3.1 (accessory after the fact) applies for that criminal offense if the resulting offense level is higher than that calculated pursuant to section 2J1.3. Section 2X3.1(a) uses a base offense level six levels lower than the offense level for the underlying offense, but in no event less than four or more than thirty. Thus, application of section 2X3.1 to perjury in connection with a serious drug offense may result in a higher offense level calculation than simply using section 2J1.3. See United States v. Glover, 52 F.3d 283, 285-86 (10th Cir. 1995); United States v. Gay, 44 F.3d 93, 94-95 (2d Cir. 1994); United States v. Gomez-Vigil, 929 F.2d 254, 259 (6th Cir. 1991). Unless multiple instances of perjury occur in the same case (grand jury and trial level), perjury counts are not grouped.

If perjury occurs at trial, the government should ask for application of section 3C1.1, the obstruction of justice enhancement, which increases the offense level two levels. This enhancement does not apply to the defendant's punishment for a charged perjury offense--in which case only section 2J1.3 and possibly section 2X3.1 would be used. The United States Supreme Court has repeatedly held that the right to testify does not include a right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United States v. Havens, 446 U.S 620, 626 (1980). It has also explicitly allowed the sentencing judge to consider a convicted defendant's decision to commit perjury at trial in determining the applicable sentence. United States v. Dunnigan, 507 U.S. 87, 93 (1993); United States v. Grayson, 438 U.S. 41, 50 (1978).

In determining whether perjury occurred for purposes of this sentence enhancement, the Supreme Court has directed judges to look to section 1621 case law. Dunnigan, 507 U.S. at 94. In imposing the enhancement, the sentencing court should either make a separate and independent factual finding to address each element of the perjurious trial testimony or make a finding concerning an obstruction of justice that encompasses all of the factual predicates for a finding of perjury. Id. at 95 ("The court finds that the defendant was untruthful at trial with respect to material matters in this case. [B]y virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case, the court concludes that the false testimony at trial warrants an upward adjustment by two levels.") The government need not demonstrate that the defendant's false testimony was particularly flagrant. United States v. Thompson, 962 F.2d 1069, 1071 (D.C. Cir. 1992), cert. denied, 507 U.S. 974 (1993). False testimony before the grand jury also warrants the obstruction enhancement. United States v. Gordon, 61 F.3d 263, 270 (4th Cir. 1995).

[cited in JM 9-69.200]