Bronston v. United States
Encyclopedia
Bronston v. United States, 409 U.S. 352 (1973), is a seminal United States
Supreme Court
decision strictly construing the federal perjury
statute. Chief Justice
Warren Burger wrote for a unanimous Court that responses to questions made under oath
that relayed truthful information in and of themselves but were intended to mislead or evade the examiner could not be prosecuted. Instead, the criminal-justice system had to rely on more carefully worded followup questions.
The decision has been cited in many cases since then and has become the controlling legal standard of perjury in federal jurisprudence. It was invoked during Bill Clinton
's impeachment
proceedings in 1998 as a defense to charges of perjury against him.
It has long been criticized for the loophole
it creates in the perjury statutes as essentially allowing a witness to lie without consequences. Nevertheless, later Courts have refused to overrule or otherwise limit it despite some moves in that direction by lower courts.
was a New York
-based movie producer who, between 1959 and 1964, made films in various Europe
an countries as Samuel Bronston Productions
, Inc., a company he wholly owned. He was a pioneer in using countries such as Spain
to take advantage of lower production costs. As part of its business operations
, the company maintained bank account
s in the countries in which it did business — 37 separate accounts in five different countries, it would be established later.
In 1964, after the epic The Fall of the Roman Empire
failed, the company filed for federal bankruptcy
protection. Two years later, its owner was being questioned under oath at a creditor
s' committee meeting about the company's overseas assets. It included the following exchange between Bronston and one of the lawyers for his creditors:
All those answers were truthful, although the second one is not a direct answer to the question. It would later be discovered that Bronston personally had had an account with International Credit Bank in Geneva, on which he made deposits and drew checks totalling up to $180,000 during the five years in which the company was active and closed just before the bankruptcy filing. As a result, the matter was referred to federal prosecutors, who secured a perjury indictment
against Bronston.
that they must consider the witness's state of mind, that if they found that Bronston "fully understood the questions put to him but nevertheless gave false answers knowing the same to be false", they should convict him. After seven hours of deliberations, during which they requested not only additional instructions but that the original instructions be read back to them, as well as reviewing several exhibits in the case, they returned a conviction.
The circuit's chief judge
, J. Edward Lumbard
, dissented, arguing the proper remedy for such answers was "questioner's acuity". Bronston's attorneys filed for certiorari
from the Supreme Court, and got it in 1971.
Less than two months later, the Court issued its brief ruling, unanimously siding with the appellant. While he conceded that Bronston's answer may have been intended to mislead, Burger felt it would be going far beyond Congress's intent to apply the statute that broadly. He considered Brontson's answer to be a "testimonial mishap that could readily have been reached with a single additional question by counsel alert — as every examiner ought to be — to the incongruity of petitioner's unresponsive answer", a point he reiterates several times throughout the opinion. Such an application also conflicted with the literal wording of the law, which defined perjury as willfully stating under oath any material matter which the witness does not believe to be true.
A casual listener might have believed from Bronston's answer that he himself had never had any Swiss bank accounts, he agreed. "But we are not dealing with casual conversation and the statute does not make it a criminal act
for a witness to willfully state any material matter that implies any material matter that he does not believe to be true" since intent to mislead or evade might not be the underlying reason: "Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it."
Witnesses, he understood, might also be reluctant to discuss personally embarrassing matters, particularly in a bankruptcy proceeding. "If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination." The trial jury's finding that Bronston had intended to mislead was of no consequence, and indeed should not have been a determination they were allowed to make:
He reviewed the history of perjury, and recalled that when it first started being prosecuted, authorities realized it had to be narrowly construed, otherwise people would be deterred from testfying over fears of being prosecuted themselves. Existing case law
supported that position as well.
"Precise questioning is imperative as a predicate for the offense of perjury", he said, one last time, a sentence frequently quoted since then.
as the "literal truth" rule (the "stark contrast" rule requiring perjury indictments to set out the difference between the allegedly false testimony and the actual truth is often attributed to this case, but arose in a latter appellate decision). Over the years since it was handed down, Bronston has remained, in the words of one commentator, "much-maligned". Criticisms have ranged from prosecutors upset at the limitations it placed on their ability to use the threat of perjury prosecution to compel truthful testimony from hostile witnesses to a Wake Forest
professor who cites it as among many aspects of the legal system that have caused a general decline in morality when they became broadly applied outside of the practice of law.
Bronston was never able to successfully return to producing films afterwards, managing to make only 1984
's Fort Saganne
, a French
film directed by Alain Corneau
. He died ten years later.
's attorneys invoked it as a defense to perjury charges brought by the House of Representatives
during his impeachment
. They argued that lawyers for Paula Jones
had failed to follow up on questions asking Clinton generally if he had ever been alone with Monica Lewinsky
to which he had answered "I don't recall". Even though later testimony had established that she was indeed alone with him on several brief occasions, he had not specifically denied it and that the Jones lawyers' failure to ask followup questions about specific occasions barred prosecution as surely as the similar failure by Bronston's questioner. They also cited other occasions where Clinton had similarly claimed he didn't remember, and his questioners had simply left the answer at that. The president's purportedly false testimony was, to them, "simply a confused deposition record that could have been clarified contemporaneously".
In response, House impeachment manager Steve Chabot
called the resort to Bronston "the cornerstone of the president's defense" and a "legal smokescreen", when presenting the case to the Senate
. Clinton, he claimed, could very well remember those things he claimed not to. "[T]he record establishes", Chabot told senators, "that the President repeatedly lied, he repeatedly deceived, he repeatedly feigned forgetfulness."
In 2004, Loyola
professor Peter Tiersma, who specializes in language and the law, analyzed Clinton's alleged perjuries closely under the Bronston standard and concluded that while he had not broken the law, he was likely aware of the literal-truth standard from his own time as a law professor and was certainly exploiting it to mislead his questioners. They erred, he said, in coming up with their own definition of sexual relations
, which allowed Clinton to look for ambiguities and then take advantage of them on the stand.
that might give another set of Supreme Court justices a chance to revisit the original ruling and, if not overrule it, at least limit its scope. Two such cases that reached the federal appeals courts
gave rise to such hopes (or fears) with regard to Bronston, but neither made it past that level.
The Eighth Circuit
upheld his conviction five years later on the grounds that "[a]bsent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of the declarant's answer is for the jury." The Supreme Court declined to hear the case. Legal commentator Barry Tarlow distinguishes the case from Bronston, however, by noting that in this case the defendant had more actively misled the questioner, by volunteering a different yet equally erroneous version of the company name.
violations by officers of the Kentucky National Guard
. Key to the case was a 1990 Preakness Day party attended by Robert DeZarn, later made adjutant general
by Brereton Jones
after the latter was elected governor
. DeZarn was being questioned about that party by Col. Robert Tripp of the Army
Inspector General
's office, under oath, when he was mistakenly asked about a 1991 party, which was not at issue. He testified truthfully about it. As a result the investigators issued a report that the allegations were unsubstantiated.
After the report, another Guard officer came to Tripp and his colleagues with new information which did substantiate some of the allegations, and revealed to them DeZarn's role in the 1990 party. He was indicted on a perjury charge in 1996. His attorneys unsuccessfully sought to have the indictment dismissed on the grounds that his answers were literally truthful. The district court refused to do so since other witnesses had answered questions about the 1991 party with reference to the 1990 one, and that DeZarn's other answers had shown he knew which party was at issue.
He repeated this defense at trial, while prosecutors introduced Louisville Courier-Journal articles showing that he knew very well which party investigators were concerned about. In September he was convicted, and sentenced to 15 months in prison. After his motion for a directed verdict
failed, he filed an appeal.
A Sixth Circuit
panel upheld the conviction (as well as his sentence, which he had argued was improperly enhanced). Gerald Rosen, Chief Judge
for the United States District Court for the Eastern District of Michigan
, sitting by designation, distinguished DeZarn's answer from the one at issue in Bronston, by noting that DeZarn was not only aware of the party at issue, but unlike Bronston, DeZarn's answer was "unequivocal and directly and fully responsive". Rosen also pointed to subsequent answers which only made sense if DeZarn was referring to the 1991 party. DeZarn had also attempted to argue Robbins wasn't relevant, since in that case the defendant had introduced the mistake, but Judge Rosen noted that fact played no role in the verdict there.
The case was never appealed beyond the Sixth Circuit. Commentators have either hailed Dezarn as "nudg[ing] federal criminal law closer to everyday morality" or decrying it as requiring witnesses to guess what a questioner really means. "The DeZarn decision appears to place the witness at risk — if he or she subjectively misinterprets the state of mind of the interrogator and gives a literally true answer", wrote Barry Tarlow. "This expansion of the traditional definition of perjury is both unwise and unnecessary."
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision strictly construing the federal perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
statute. Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger wrote for a unanimous Court that responses to questions made under oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
that relayed truthful information in and of themselves but were intended to mislead or evade the examiner could not be prosecuted. Instead, the criminal-justice system had to rely on more carefully worded followup questions.
The decision has been cited in many cases since then and has become the controlling legal standard of perjury in federal jurisprudence. It was invoked during Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
's impeachment
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
proceedings in 1998 as a defense to charges of perjury against him.
It has long been criticized for the loophole
Loophole
A loophole is a weakness that allows a system to be circumvented.Loophole may also refer to:*Arrowslit, a slit in a castle wall*Loophole , a short science fiction story by Arthur C...
it creates in the perjury statutes as essentially allowing a witness to lie without consequences. Nevertheless, later Courts have refused to overrule or otherwise limit it despite some moves in that direction by lower courts.
Background of the case
Samuel BronstonSamuel Bronston
Samuel Bronston was a Bessarabian-born American film producer, film director, and a nephew of socialist revolutionary figure, Leon Trotsky. He was also the petitioner in a U.S...
was a New York
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
-based movie producer who, between 1959 and 1964, made films in various Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
an countries as Samuel Bronston Productions
Samuel Bronston Productions
Samuel Bronston Productions was an independent American film production company, founded by Samuel Bronston in 1943.The company produced several epic films, the most notable of which are, John Paul Jones , King of Kings , El Cid , 55 Days at Peking and The Fall of the Roman Empire .The films were...
, Inc., a company he wholly owned. He was a pioneer in using countries such as Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
to take advantage of lower production costs. As part of its business operations
Business operations
Business operations are those ongoing recurring activities involved in the running of a business for the purpose of producing value for the stakeholders...
, the company maintained bank account
Bank account
A Bank account is a financial account recording the financial transactions between the customer and the bank and the resulting financial position of the customer with the bank .-Account types:...
s in the countries in which it did business — 37 separate accounts in five different countries, it would be established later.
In 1964, after the epic The Fall of the Roman Empire
The Fall of the Roman Empire (film)
The Fall of the Roman Empire is a 1964 English-language epic film produced by Samuel Bronston Productions and the Rank Organisation, and released by Paramount Pictures. It was directed by Anthony Mann and produced by Samuel Bronston with Jaime Prades and Michal Waszynski as associate producers. The...
failed, the company filed for federal bankruptcy
Bankruptcy in the United States
Bankruptcy in the United States is governed under the United States Constitution which authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States." Congress has exercised this authority several times since 1801, most recently by adopting the Bankruptcy...
protection. Two years later, its owner was being questioned under oath at a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
s' committee meeting about the company's overseas assets. It included the following exchange between Bronston and one of the lawyers for his creditors:
All those answers were truthful, although the second one is not a direct answer to the question. It would later be discovered that Bronston personally had had an account with International Credit Bank in Geneva, on which he made deposits and drew checks totalling up to $180,000 during the five years in which the company was active and closed just before the bankruptcy filing. As a result, the matter was referred to federal prosecutors, who secured a perjury indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
against Bronston.
Trial
The government contended that Bronston intentionally answered the second of the series of questions by referring to the company's account in Zurich instead of his own personal one, as the questioner had implied, to leave the impression that he did not have and never had had an account in Switzerland, which was not true. Jurors were instructedJury instructions
Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...
that they must consider the witness's state of mind, that if they found that Bronston "fully understood the questions put to him but nevertheless gave false answers knowing the same to be false", they should convict him. After seven hours of deliberations, during which they requested not only additional instructions but that the original instructions be read back to them, as well as reviewing several exhibits in the case, they returned a conviction.
Appeal
On appeal, Bronston claimed the key question was imprecise and that he should not have been convicted for making an answer that was true and accurate. A divided court upheld the conviction on the grounds that "an answer containing half of the truth which also constitutes a lie by negative implication, when the answer is intentionally given in place of the responsive answer called for by a proper question, is perjury".The circuit's chief judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
, J. Edward Lumbard
J. Edward Lumbard
Joseph Edward Lumbard, Jr. was a United States federal judge.Lumbard was born in Harlem, New York City. He attended DeWitt Clinton High School in the Bronx. In 1920, while an undergraduate Harvard University, he was expelled by its "Secret Court" of 1920 for associating with a group of...
, dissented, arguing the proper remedy for such answers was "questioner's acuity". Bronston's attorneys filed for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
from the Supreme Court, and got it in 1971.
Decision
The Court heard arguments on November 15, 1972. Sheldon Elsen argued for Brontson, with Andrew Frey taking the federal government's side.Less than two months later, the Court issued its brief ruling, unanimously siding with the appellant. While he conceded that Bronston's answer may have been intended to mislead, Burger felt it would be going far beyond Congress's intent to apply the statute that broadly. He considered Brontson's answer to be a "testimonial mishap that could readily have been reached with a single additional question by counsel alert — as every examiner ought to be — to the incongruity of petitioner's unresponsive answer", a point he reiterates several times throughout the opinion. Such an application also conflicted with the literal wording of the law, which defined perjury as willfully stating under oath any material matter which the witness does not believe to be true.
A casual listener might have believed from Bronston's answer that he himself had never had any Swiss bank accounts, he agreed. "But we are not dealing with casual conversation and the statute does not make it a criminal act
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
for a witness to willfully state any material matter that implies any material matter that he does not believe to be true" since intent to mislead or evade might not be the underlying reason: "Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it."
Witnesses, he understood, might also be reluctant to discuss personally embarrassing matters, particularly in a bankruptcy proceeding. "If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination." The trial jury's finding that Bronston had intended to mislead was of no consequence, and indeed should not have been a determination they were allowed to make:
He reviewed the history of perjury, and recalled that when it first started being prosecuted, authorities realized it had to be narrowly construed, otherwise people would be deterred from testfying over fears of being prosecuted themselves. Existing case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
supported that position as well.
"Precise questioning is imperative as a predicate for the offense of perjury", he said, one last time, a sentence frequently quoted since then.
Legacy
The standard established by the decision has become known in criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
as the "literal truth" rule (the "stark contrast" rule requiring perjury indictments to set out the difference between the allegedly false testimony and the actual truth is often attributed to this case, but arose in a latter appellate decision). Over the years since it was handed down, Bronston has remained, in the words of one commentator, "much-maligned". Criticisms have ranged from prosecutors upset at the limitations it placed on their ability to use the threat of perjury prosecution to compel truthful testimony from hostile witnesses to a Wake Forest
Wake Forest University
Wake Forest University is a private, coeducational university in the U.S. state of North Carolina, founded in 1834. The university received its name from its original location in Wake Forest, north of Raleigh, North Carolina, the state capital. The Reynolda Campus, the university's main campus, is...
professor who cites it as among many aspects of the legal system that have caused a general decline in morality when they became broadly applied outside of the practice of law.
Bronston was never able to successfully return to producing films afterwards, managing to make only 1984
1984 in film
-Events:* The Walt Disney Company founds Touchstone Pictures to release movies with subject matter deemed inappropriate for the Disney name.* Tri-Star Pictures, a joint venture of Columbia Pictures, HBO, and CBS, releases its first film....
's Fort Saganne
Fort Saganne
Fort Saganne is a 1984 French war film directed by Alain Corneau, based on the 1980 novel of the same name by Louis Gardel. It was screened out of competition at the 1984 Cannes Film Festival...
, a French
Cinema of France
The Cinema of France comprises the art of film and creative movies made within the nation of France or by French filmmakers abroad.France is the birthplace of cinema and was responsible for many of its early significant contributions. Several important cinematic movements, including the Nouvelle...
film directed by Alain Corneau
Alain Corneau
Alain Corneau was a French film director and writer.Corneau was born in Meung-sur-Loire, Loiret. Originally a musician, he worked with Costa-Gavras as an assistant, which was also his first opportunity to work with the actor Yves Montand, with whom he would collaborate three times later in his...
. He died ten years later.
Clinton impeachment defense
The case came to the fore in 1998, when Bill ClintonBill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
's attorneys invoked it as a defense to perjury charges brought by the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
during his impeachment
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
. They argued that lawyers for Paula Jones
Paula Jones
Paula Corbin Jones is a former Arkansas state employee who sued U.S. President Bill Clinton for sexual harassment. The lawsuit was dismissed before trial on the grounds that Jones failed to demonstrate any damages...
had failed to follow up on questions asking Clinton generally if he had ever been alone with Monica Lewinsky
Monica Lewinsky
Monica Samille Lewinsky is an American woman with whom United States President Bill Clinton admitted to having had an "improper relationship" while she worked at the White House in 1995 and 1996...
to which he had answered "I don't recall". Even though later testimony had established that she was indeed alone with him on several brief occasions, he had not specifically denied it and that the Jones lawyers' failure to ask followup questions about specific occasions barred prosecution as surely as the similar failure by Bronston's questioner. They also cited other occasions where Clinton had similarly claimed he didn't remember, and his questioners had simply left the answer at that. The president's purportedly false testimony was, to them, "simply a confused deposition record that could have been clarified contemporaneously".
In response, House impeachment manager Steve Chabot
Steve Chabot
Steven Joseph "Steve" Chabot is the U.S. Representative for . He is a member of the Republican Party. He previously represented the district from 1995 to 2009.-Early life, education and career:...
called the resort to Bronston "the cornerstone of the president's defense" and a "legal smokescreen", when presenting the case to the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. Clinton, he claimed, could very well remember those things he claimed not to. "[T]he record establishes", Chabot told senators, "that the President repeatedly lied, he repeatedly deceived, he repeatedly feigned forgetfulness."
In 2004, Loyola
Loyola Law School
Loyola Law School is the law school of Loyola Marymount University, a private Catholic university in the Jesuit and Marymount traditions, in Los Angeles, California. Loyola was established in 1920. Like Loyola University Chicago School of Law and Loyola University New Orleans College of Law , it...
professor Peter Tiersma, who specializes in language and the law, analyzed Clinton's alleged perjuries closely under the Bronston standard and concluded that while he had not broken the law, he was likely aware of the literal-truth standard from his own time as a law professor and was certainly exploiting it to mislead his questioners. They erred, he said, in coming up with their own definition of sexual relations
Human sexual behavior
Human sexual activities or human sexual practices or human sexual behavior refers to the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts from time to time, and for a wide variety of reasons...
, which allowed Clinton to look for ambiguities and then take advantage of them on the stand.
Conflicting appellate cases
As with other Supreme Court cases, those who have disagreed with Bronston have looked for test casesTest case (law)
In case law, a test case is a legal action whose purpose is to set a precedent. An example of a test case might be a legal entity who files a lawsuit in order to see if the court considers a certain law or a certain legal precedent applicable in specific circumstances...
that might give another set of Supreme Court justices a chance to revisit the original ruling and, if not overrule it, at least limit its scope. Two such cases that reached the federal appeals courts
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
gave rise to such hopes (or fears) with regard to Bronston, but neither made it past that level.
United States v. Robbins
Like Bronston, this 1988 case arose from a bankruptcy proceeding. Robbins was testifying about a company he had formed called MacArthur and 11th Properties. His questioner mistakenly asked about "11th and Meridian". He answered that that name was unfamiliar to him but he knew of an "11th and MacArthur". Both those answers were true but as a result the line of questioning about the real company was dropped.The Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
upheld his conviction five years later on the grounds that "[a]bsent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of the declarant's answer is for the jury." The Supreme Court declined to hear the case. Legal commentator Barry Tarlow distinguishes the case from Bronston, however, by noting that in this case the defendant had more actively misled the questioner, by volunteering a different yet equally erroneous version of the company name.
United States v. DeZarn
Later in the 1990s came the DeZarn case. It began with an investigation into possible Hatch ActHatch Act of 1939
The Hatch Act of 1939 is a United States federal law whose main provision is to prohibit federal employees in the executive branch of the federal government, except the President and the Vice President, from engaging in partisan political activity...
violations by officers of the Kentucky National Guard
Kentucky National Guard
The Kentucky National Guard consists of the:*Kentucky Army National Guard*Kentucky Air National Guard-External links:** compiled by the United States Army Center of Military History...
. Key to the case was a 1990 Preakness Day party attended by Robert DeZarn, later made adjutant general
Adjutant general
An Adjutant General is a military chief administrative officer.-Imperial Russia:In Imperial Russia, the General-Adjutant was a Court officer, who was usually an army general. He served as a personal aide to the Tsar and hence was a member of the H. I. M. Retinue...
by Brereton Jones
Brereton Jones
Brereton Chandler Jones is a horse breeder and politician from the US state of Kentucky. From 1987 to 1991, he served as lieutenant governor of Kentucky and from 1991 to 1995, he was the state's 58th governor...
after the latter was elected governor
Governor of Kentucky
The Governor of the Commonwealth of Kentucky is the head of the executive branch of government in the U.S. state of Kentucky. Fifty-six men and one woman have served as Governor of Kentucky. The governor's term is four years in length; since 1992, incumbents have been able to seek re-election once...
. DeZarn was being questioned about that party by Col. Robert Tripp of the Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
Inspector General
Inspector General
An Inspector General is an investigative official in a civil or military organization. The plural of the term is Inspectors General.-Bangladesh:...
's office, under oath, when he was mistakenly asked about a 1991 party, which was not at issue. He testified truthfully about it. As a result the investigators issued a report that the allegations were unsubstantiated.
After the report, another Guard officer came to Tripp and his colleagues with new information which did substantiate some of the allegations, and revealed to them DeZarn's role in the 1990 party. He was indicted on a perjury charge in 1996. His attorneys unsuccessfully sought to have the indictment dismissed on the grounds that his answers were literally truthful. The district court refused to do so since other witnesses had answered questions about the 1991 party with reference to the 1990 one, and that DeZarn's other answers had shown he knew which party was at issue.
He repeated this defense at trial, while prosecutors introduced Louisville Courier-Journal articles showing that he knew very well which party investigators were concerned about. In September he was convicted, and sentenced to 15 months in prison. After his motion for a directed verdict
Directed verdict
In a jury trial, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary...
failed, he filed an appeal.
A Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
panel upheld the conviction (as well as his sentence, which he had argued was improperly enhanced). Gerald Rosen, Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
for the United States District Court for the Eastern District of Michigan
United States District Court for the Eastern District of Michigan
The United States District Court for the Eastern District of Michigan is the Federal district court with jurisdiction over of the eastern portion of the state of Michigan. The Court is based in Detroit, with courthouses also located in Ann Arbor, Bay City, Flint, and Port Huron...
, sitting by designation, distinguished DeZarn's answer from the one at issue in Bronston, by noting that DeZarn was not only aware of the party at issue, but unlike Bronston, DeZarn's answer was "unequivocal and directly and fully responsive". Rosen also pointed to subsequent answers which only made sense if DeZarn was referring to the 1991 party. DeZarn had also attempted to argue Robbins wasn't relevant, since in that case the defendant had introduced the mistake, but Judge Rosen noted that fact played no role in the verdict there.
The case was never appealed beyond the Sixth Circuit. Commentators have either hailed Dezarn as "nudg[ing] federal criminal law closer to everyday morality" or decrying it as requiring witnesses to guess what a questioner really means. "The DeZarn decision appears to place the witness at risk — if he or she subjectively misinterprets the state of mind of the interrogator and gives a literally true answer", wrote Barry Tarlow. "This expansion of the traditional definition of perjury is both unwise and unnecessary."
External links
Text of decision at findlaw.com- Perjury Cases -- Special Problems and Defenses -- Evasive and Unresponsive Answers from U.S. Department of Justice's Criminal Resource Manual.