                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1998

United States v. Sherman
Precedential or Non-Precedential:

Docket 97-7073




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"United States v. Sherman" (1998). 1998 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/177


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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 five-
count 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 truth-
seeking 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 strict-
construction 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
