                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           MARCH 26, 2008
                       Nos. 07-11976 & 07-13041           THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

     D. C. Docket Nos. 06-00422-CR-T-30-TBM & 05-00395-CR-24MAP

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                  versus

WILLIAM E. BURKE,

                                                 Defendant-Appellant.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (March 26, 2008)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:
      William E. Burke appeals his conviction for making irreconcilably

inconsistent material statements under oath, in violation of 18 U.S.C. § 1623, and

the revocation of his probation on a separate charge due to the conviction. On

appeal, Burke argues that there was insufficient evidence to support his conviction

under § 1623 and that the district court abused its discretion in revoking his

probation because he was not on probation when he committed the § 1623

violation.

                          I. Sufficiency of the Evidence

      Here, where Burke timely moved for a judgment of acquittal (see

Government’s Brief at 9), we review the sufficiency of the evidence de novo.

United States v. Bender, 290 F.3d 1279, 1283-84 (11th Cir. 2002). “We view the

evidence in the light most favorable to the government, with all reasonable

inferences and credibility choices made in the government’s favor.” Id. at 1283

(internal quotation marks omitted).

      To sustain a false declaration conviction, the government must prove that

the defendant, while under oath, knowingly made a false material declaration.

Section 1623(c) further provides:

    (c) An indictment or information for violation of this section alleging that,
    in any proceedings before or ancillary to any court or grand jury of the
    United States, the defendant under oath has knowingly made two or more

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    declarations, which are inconsistent to the degree that one of them is
    necessarily false, need not specify which declaration is false if--


    (1) each declaration was material to the point in question, and


    (2) each declaration was made within the period of the statute of
    limitations for the offense charged under this section.

    In any prosecution under this section, the falsity of a declaration set forth
    in the indictment or information shall be established sufficient for
    conviction by proof that the defendant while under oath made
    irreconcilably contradictory declarations material to the point in question
    in any proceeding before or ancillary to any court or grand jury. It shall be
    a defense to an indictment or information made pursuant to the first
    sentence of this subsection that the defendant at the time he made each
    declaration believed the declaration was true.

18 U.S.C. § 1623(c).

      As § 1623(c) indicates, while the government is required to show that Burke

knowingly made two or more declarations under oath that are irreconcilably

contradictory, the government need not prove which of the declarations was false.

See Dunn v. United States, 442 U.S. 100, 108, 99 S. Ct. 2190, 2195, 60 L. Ed. 2d

743 (1979) (explaining that §1623(c) “was a response to perceived evidentiary

problems in demonstrating perjury” and the statute relieved the government from

“proving which of two or more inconsistent declarations was false”); accord

United States v. Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995); United States v.

McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).

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      Generally, the knowledge element of an offense may be proven through

circumstantial evidence. United States v. Macko, 994 F.2d 1526, 1533 (11th Cir.

1993). We have held that, in combination with other evidence, a jury may

consider a defendant’s statements as substantive evidence of his guilt when the

jury disbelieves his testimony. United States v. Brown, 53 F.3d 312, 314 (11th

Cir. 1995). “This rule applies with special force where the elements to be proved

for a conviction include highly subjective elements: for example, the defendant's

intent or knowledge . . . .” Id. at 315.

      At trial on the subject § 1623 offense, the government showed, through the

use of a government witness and transcript testimony, Burke’s two inconsistent

statements taken under oath: (1) the October 14, 2005 plea hearing where Burke

pled guilty to “knowingly and corruptly” accepting a $3,000 bribe;1 and (2) the

      1
          Specifically, the following colloquy occurred:

              The Court: Let me review with you, Mr. Burke, the elements of the
      offense. First, that you, a public official, demanded and sought, received and
      accepted, agreed to receive and accept either personally and for another person
      and entity, something of value, in this case, $3000. Secondly, that you did so
      knowingly and corruptly in return for being influenced in the performance of an
      official act and being influenced to allow and to make opportunity for the
      commission of a fraud on the United States. Do you understand what you are
      charged with and the elements of the crime?
              Mr. Burke: Yes, Your Honor.
              The Court: How do you plead, Mr. Burke, guilty or not guilty?
              Mr. Burke: Guilty, Your Honor.
              ...
              The Court: Did you, Mr. Burke, acting in such a capacity [as a public

                                                  4
May 2006 trial of Burke’s co-defendant (who allegedly offered Burke the bribe)

where Burke testified that he did not knowingly accept a bribe.2

       In his defense to the § 1623 charge, Burke testified that following his guilty

plea, but before his May 2006 testimony, he had done some soul searching and

research, and no longer believed that he had knowingly accepted a bribe. (Doc. 49

at 79, 8:06-422).

       Burke contends that the government’s evidence was insufficient because it

only showed that Burke’s declarations were inconsistent—not that Burke made the

declarations knowing that they were false. Burke maintains that he made each

statement believing it to be true at the time when he testified, which negates the

knowledge element of the charge.

       We hold that there was sufficient evidence to support Burke’s § 1623



       official] accept approximately $3000 from someone else?
               Mr. Burke: Yes, Your Honor.
               The Court: And did you do this knowingly and corruptly in return for
       being influenced in the performance of an official act or to make an opportunity
       for the commission of a fraud on the United States?
               Mr. Burke: Yes, Your Honor.

(Doc. 12 at 20, 22, 8:05-395).
       2
        Burke testified that, if he did impermissibly receive money, he did so unwittingly
because he did not intent to accept a bribe. (Exhibits Folder, Government’s Ex. 7 at 159.) More
pointedly, Burke was asked “Did you commit a crime with [the co-defendant]?” (Gov’t Ex. 7 at
161, 8:06-422.) Burke answered: “In my heart of hearts, I do not think I committed a crime.”
(Id.)

                                               5
conviction. Despite Burke’s testimony to the contrary, the jury was permitted to

reject Burke’s proffered explanation for his inconsistent statements and infer from

the circumstantial evidence that he knowingly made a materially false declaration

under oath during his plea hearing or at his co-defendant’s trial. See United States

v. Williams, 390 F.3d 1319, 1326 (11th Cir. 2004) (“Where some corroborative

evidence of guilt exists for the charged offense . . . and the defendant takes the

stand in her own defense, the Defendant’s testimony, denying guilt, may establish,

by itself, elements of the offense.”).

                              II. Probation Revocation

      Burke argues that he did not violate his probation on the bribery offense

because he was not on probation when he testified to accepting a bribe at his

October 14, 2005 plea hearing. Burke does not dispute that he was on probation

when he provided contrary testimony at the May 2006 trial of his co-defendant.

      We review “a district court’s revocation of probation for an abuse of

discretion.” United States v. Mitsven, 452 F.3d 1264, 1266 (11th Cir.), cert.

denied, — U.S. —, 127 S. Ct. 663, 166 L. Ed. 2d 521 (2006). We review a district

court’s statutory interpretation de novo. United States v. Castro, 455 F.3d 1249,

1251 (11th Cir. 2006) (per curiam).

      We have not addressed when a § 1623(c) violation occurs. The Tenth

                                          6
Circuit, however, has addressed the issue in the context of whether certain

sentencing enhancements apply. See United States v. Glover, 52 F.3d 283, 287

(10th Cir. 1995). In Glover, Glover was indicted on a charge of Continuing

Criminal Enterprise (CCE), pled guilty, and testified against a codefendant in

exchange for a reduced sentence. Id. at 284. When the codefendant moved for a

new trial, Glover executed an affidavit recanting his trial testimony and declaring

that his trial testimony was false. Id. Glover subsequently was indicted for

making irreconcilably contradictory sworn declarations, in violation of § 1623(c),

and he pled guilty. Id. Because it was undisputed that Glover was serving his

sentence for the CCE conviction when he executed the affidavit, the district court

enhanced his criminal history by three points. Id. at 287. The Tenth Circuit held

that the affidavit completed Glover’s crime; i.e., “[i]f [Glover] had not given the

affidavit, then he would not have violated § 1623(c) by making, under oath,

‘irreconcilably contradictory declarations material to the point in question in any

proceeding before or ancillary to any court.’” Id. (quoting 18 U.S.C. § 1623(c)).

      We agree with Tenth Circuit. Under the plain language of § 1623(c), a

violation does not occur until a defendant makes a statement under oath that is

irreconcilable with a prior statement under oath. Here, Burke completed the

§ 1623(c) offense during the May 2006 trial of his co-defendant, at which time he

                                          7
was on probation. The district court, therefore, did not abuse its discretion in

revoking Burke’s probation. Accordingly, we affirm.

      AFFIRMED.




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