Reply #4: US DOJ Grand Jury Guidelines - Lots of Interesting Reading Here

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http://www.usdoj.gov/atr/public/guidelines/207021.htm#VIII7

This DOJ manual is a non-copyrighted public document. It deals specifically with instructions to US Attorneys on how to convene and conduct a GJ in Sherman Antitrust cases, but much of it is relevant to the Plame case as well. Below, it lays out the legal bases for charges of perjury and obstruction of justice that are likely to be applied to Scooter, Karl and others:

False declarations and perjury

There are two principal federal perjury statutes, 18 U.S.C. § 1621 and § 1623. The elements of both statutes are substantially the same.(45)

Since virtually all perjury prosecutions brought by the Division will occur in a court proceeding or before the grand jury, only the elements of 18 U.S.C. § 1623 will be described. There are five such elements that should be addressed in an indictment:


the testimony was given under oath;

the testimony was given in a proceeding before or ancillary to a court or grand jury;

the testimony was false in one or more of the respects charged in the indictment;

the false testimony was knowingly given; and

the false testimony was material.(46)
The identity of the oath giver and proof that such person was competent or authorized to administer the oath are not essential elements of § 1623 and need not be included in the indictment. Instead, § 1623 merely requires the prosecution to prove that the defendant was under oath at the time the false statement was made.(47)

The third element of the offense is established through extrinsic proof that the testimony given by the accused was false in one or more of the respects charged, and is subject to the same standard of proof, beyond a reasonable doubt, that applies in any criminal case.(48) In a false statement count that avers several allegedly false statements in the same count, proof of any one of the specifications is sufficient to support a guilty verdict.(49) Generally, the Division's practice is to have a separate count for each separate fraudulent statement. However, related statements that are in essence the same answer to a rephrased question should be contained in the same count.

The fifth element, materiality of the false declaration, is a legal question for the court's determination.(50) Materiality has been defined broadly to include anything "capable of influencing the tribunal on the issue before it."(51) Before drafting the indictment, consult the law of the circuit for the jurisdiction you will be in for cases defining materiality.

It is not a defect to omit a specific allegation in the indictment that defendant did in fact recall something to which he falsely responded he did not recall(52) as long as the court instructs the jury that in order to convict, it must find that defendant did in fact recall one or more of the matters in question. Nonetheless, the better practice is to include language in the charging paragraph that defendant did in fact recall the matter or matters to which he responded he didn't recall.(53)


Obstruction of justice, 18 U.S.C. § 1503

An obstruction of justice charge is appropriate when prosecutors believe that there has been interference with the grand jury's investigative process.(54) The bases for such a charge stem most commonly from destruction or alteration of documents that were called for in a grand jury subpoena, or that were material to the investigation, or from an attempt to influence someone's grand jury testimony.(55) Such charges are usually prosecuted under the broader parameters of the omnibus clause of 18 U.S.C. § 1503.(56)

In charging that the defendant "endeavors" to influence, obstruct or impede, success by the defendant is not necessary.(57) As the Fifth Circuit noted in United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834 (1978): "Section 1503 is a contempt statute . . . and as such is directed at disruptions of orderly procedure. Thus, it is wholly irrelevant whether defendants' actions had no ultimate effect on the outcome of the grand jury investigation: the question is whether they disturbed the procedure of the investigation."(58)

Several courts of appeal have addressed the issue of whether perjured testimony can form the basis of an obstruction of justice prosecution. While the courts have held that "mere perjury" does not amount to obstruction, the great weight of authority holds that the giving of false testimony can amount to obstruction of justice when the testimony has impeded the administration of justice.(59) For example, the Fourth Circuit in United States v. Caron, 551 F. Supp. 662 (E.D. Va. 1982), aff'd mem., 722 F.2d 739 (4th Cir. 1983), cert. denied, 465 U.S. 1103 (1984), upheld (without an opinion) a false testimony-based § 1503 indictment and a concurrent indictment for perjury under § 1623 which had as its basis the same false testimony.

Because of the similarity in the evidence required to prove violations of §§ 1623 and 1503, staffs can expect that a defendant may make a multiplicity motion and argue that false statements and obstruction of justice merge into the same offense on the facts of the case. However, two courts of appeal have rejected the argument that concurrent convictions under §§ 1503 and 1623 constitute double jeopardy on the grounds that the statutory elements of each offense are "clearly distinct" and thus each statute requires proof that the other does not.(60)

In addition to prohibiting the intimidation of and retaliation against grand and petit jurors and judicial officers, 18 U.S.C. § 1503 contains a catch-all, or omnibus clause prohibiting corrupt "endeavors to influence, obstruct or impede, the due administration of justice." In an omnibus clause prosecution, the Government must prove:


there was a pending judicial proceeding;

the defendant knew that there was a pending judicial proceeding;

the defendant endeavored to influence, obstruct or impede the due administration of justice; and

the defendant's acts were done knowingly and corruptly.(61)
Each of these elements must be addressed in the indictment.