1. When a Federal District Court dismisses an indictment on the
ground that it does not allege a violation of the statute upon
which it was founded, not merely because of some deficiency in
pleading, but with respect to the substance of the charge, that is
necessarily a construction of the statute, and a direct appeal to
this Court lies under 18 U.S.C. § 3731. Pp.
355 U. S.
573-574.
2. A willfully false statement of a material fact, made by an
attorney under oath during a Federal District Court's examination
into his fitness to practice before it, constitutes perjury within
the meaning of 18 U.S.C. § 1621 when the examination was made under
a local rule of the District Court specifically authorizing such
examination under oath, since such an examination is a "case in
which a law of the United States authorizes an oath to be
administered" within the meaning of the statute. Pp.
355 U. S.
574-577.
(a) The phrase "a law of the United States," as used in the
perjury statute, is not limited to statutes, but includes as well
rules and regulations which have been lawfully authorized and have
a clear legislative base, and also decisional law. P.
355 U. S.
575.
(b) There can be no doubt that the District Court was lawfully
authorized to prescribe its local rules and that they have a clear
legislative base. Pp.
355 U. S.
575-577.
147 F. Supp. 594 reversed and remanded.
Page 355 U. S. 571
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
The question for decision is whether a willfully false statement
of a material fact, made by an attorney under oath during the
District Court's examination, under its local rule, into his
fitness to practice before it, constitutes perjury within the
meaning of 18 U.S.C. § 1621. [
Footnote 1]
Acting under 28 U.S.C. §§ 1654, 2071, and Rule 83 of Federal
Rules of Civil Procedure, authorizing federal courts to prescribe
rules for the conduct of their business, the District Courts for
the Northern and Southern Districts of Iowa promulgated local rules
governing practice in those courts. Their Rule 3, in pertinent
part, provides:
"All attorneys residing outside of the State of Iowa and having
civil matters in the court shall associate with them a resident
attorney on whom notice may be served and who shall have the
authority to act for and on behalf of the client in all matters. .
. . Nonresident attorneys who have so associated with them a
resident attorney shall be permitted to participate in a particular
case upon satisfactory showing of good moral character."
"Provided further that, where the action is one to recover
damages for personal injuries sustained in Iowa by one who at the
time was a resident of Iowa . . . , the Court may, on its own
motion or on motion of a member of the bar of either District,
Page 355 U. S. 572
before permitting a nonresident attorney to participate in the
case, require a satisfactory showing that the connection of the
said attorney [with the case] was not occasioned or brought about
in violation of the standards of conduct specified in Rule 8
hereof. [
Footnote 2] The court,
as a part of said showing, may require the plaintiff and the said
attorney to appear and be examined under oath."
Appellee, an attorney residing and maintaining his office in
Minneapolis, Minnesota, had instituted two actions in the District
Court for the Northern District of Iowa, as counsel for citizens of
Iowa, seeking damages for bodily injuries which they had sustained
in that State. On October 3, 1955, the court, acting under its Rule
3, entered an order scheduling a hearing to be held by the court on
October 12, 1955, for the purpose of affording an opportunity to
appellee to show that his connection with the two damage suits was
not brought about in violation of the standards of conduct
specified in its Rule 8, and directing appellee to appear at that
time and to submit to an examination under oath if he wished
further to participate as counsel in those actions. Appellee
appeared at the hearing and, after being sworn by the Clerk, was
examined by the District Attorney on matters deemed relevant to the
hearing. On November 1, 1955, the court entered an order finding
that "the applicant [had] not made satisfactory showing of the
matters which must be satisfactorily shown under said Local Rule
3," and it struck his appearance as counsel in the two damage
actions from the record.
On March 20, 1956, a four-count indictment was returned against
appellee in the same District Court. Each count charged that
appellee, while under oath as a witness
Page 355 U. S. 573
at the hearing of October 12, 1955, "unlawfully, wilfully, and
knowingly, and contrary to [his] oath, [stated] material matters
which he did not believe to be true" (in particulars set forth in
each count), "in violation of Section 1621, Title 18 United States
Code." Appellee moved to dismiss the indictment for failure of any
of the counts to state an offense against the United States. The
court, [
Footnote 3] after full
hearing upon the motion, concluded
"that Rule 3, under which the defendant took his oath, is not
such a law of the United States as was intended by Congress to
support an indictment for perjury,"
and, on that ground, dismissed the indictment. 147 F. Supp.
594,
597.
The Government brought the case here by direct appeal under the
Criminal Appeals Act, 18 U.S.C. § 3731. We postponed further
consideration of the question of jurisdiction to the hearing on the
merits, 353 U.S. 980.
At the threshold, we are met with appellee's contention that we
do not have jurisdiction of this appeal. We think the contention is
unsound. 18 U.S.C. § 3731, in pertinent part, provides that:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States . . . [f]rom a decision or judgment . . . dismissing any
indictment . . . where such decision or judgment is based upon the
invalidity or construction of the statute upon which the indictment
. . . is founded."
This indictment was founded on the federal perjury statute, 18
U.S.C. § 1621. The District Court dismissed the indictment not
because of any deficiency in pleading or procedure, but solely
because it held that Rule 3 "is not such a law of the United States
as was intended by Congress to support an indictment for perjury."
It thus dismissed the indictment upon its construction of the
federal
Page 355 U. S. 574
perjury statute. In these circumstances, the question of our
jurisdiction is settled by
United States v. Borden Co.,
308 U. S. 188,
308 U. S.
193:
"When the District Court holds that the indictment, not merely
because of some deficiency in pleading, but with respect to the
substance of the charge, does not allege a violation of the statute
upon which the indictment is founded, that is necessarily a
construction of that statute."
Such is the case here, and the result is that we have
jurisdiction of this appeal.
This brings us to the merits. The scope of this appeal is very
limited. No question concerning the validity of the District
Court's Rule 3 is properly before us. Nor are we at liberty to
consider any question other than the single one decided by the
District Court, for when, as here,
"the District Court has rested its decision upon the
construction of the underlying statute, this Court is not at
liberty to go beyond the question of the correctness of that
construction and consider other objections to the indictment. The
Government's appeal does not open the whole case."
United States v. Borden Co., supra, at
308 U. S.
193.
"The essential elements of the crime of perjury as defined in 18
U.S.C. § 1621 are (1) an oath authorized by a law of the United
States, (2) taken before a competent tribunal, officer or person,
and (3) a false statement wilfully made as to facts material to the
hearing."
United States v. Debrow, 346 U.
S. 374,
346 U. S. 376.
Only the first element of perjury is involved here, because the
District Court's dismissal of the indictment was upon the sole
ground that "Rule 3 . . . is not such a law of the United States as
was intended by Congress to support an indictment for perjury."
Therefore, the only question open here is whether the admission
hearing, held under the District Court's Rule 3, and at which
appellee testified under
Page 355 U. S. 575
oath, was a "case in which a law of the United States authorizes
an oath to be administered" within the meaning of that clause as
used in the perjury statute. We think it was.
The phrase "a law of the United States," as used in the perjury
statute, is not limited to statutes, but includes as well Rules and
Regulations which have been lawfully authorized and have a clear
legislative base (
United States v. Smull, 236 U.
S. 405;
Caha v. United States, 152 U.
S. 211;
Viereck v. United States, 318 U.
S. 236;
Lilly v. Grand Trunk R. Co.,
317 U. S. 481),
and also decisional law.
Glickstein v. United States,
222 U. S. 139.
And see Wigmore, Evidence (3d ed.) §§ 1815, 1816, 1824.
[
Footnote 4]
28 U.S.C. § 2071 provides:
"The Supreme Court and all courts established by Act of Congress
may from time to time prescribe rules for the conduct of their
business. Such rules shall be consistent with Acts of Congress and
rules of practice and procedure prescribed by the Supreme
Court."
And 28 U.S.C. § 1654, provides:
"In all courts of the United States, the parties may plead and
conduct their own cases personally or by counsel, as,
by the
rules of such courts, respectively, are permitted to manage
and conduct causes therein."
(Emphasis supplied.) Consistently, Rule 83 of Federal Rules of
Civil Procedure, in pertinent part, provides:
"Each district court, by action of a majority of the judges
thereof, may from time to time make and amend rules governing its
practice not inconsistent with these rules. . . ."
These statutes and Rule 83 leave no room to doubt that the
District Court was lawfully authorized to prescribe its
Page 355 U. S. 576
local rules and that they have a clear legislative base. Whether
or not its Rule 3 is invalid for any reason -- which, as stated, is
a question not before us -- it was prescribed pursuant to statutory
authority, and expressly provides that, under the conditions
specified, the court may require the "attorney to appear and be
examined under oath."
Rule 3 had at least as clear a legislative base as did the
Regulations involved in
Caha v. United States, supra, and
United States v. Smull, supra. In the
Caha case,
defendant was indicted under the federal perjury statute -- then in
precisely the same terms as it is now -- and charged with perjury
through the making of a false affidavit to officials of the Land
Office of the Department of the Interior in respect of a contest,
then pending in the Land Office, over the validity of a homestead
entry. The defendant was convicted, and, on appeal, contended that
no statute authorized such a contest, and that therefore it could
not "be said that the oath was taken in a
case in which a law
of the United States authorizes an oath to be administered.'" By
statute, Congress had authorized the Commissioner of the General
Land Office, under the direction of the Secretary of the Interior,
"to enforce and carry into execution, by appropriate regulations,
every part of the [laws relating to public lands]." Pursuant to
that authority, the Commissioner adopted rules of practice
including an express provision
"for a contest before the local and officers in respect to
homestead as well as preemption entries, and for the taking of
testimony before such officers. . . ."
This Court, in denying defendant's contention and in sustaining
the conviction, said:
"We have, therefore, a general grant of authority to the land
department to prescribe appropriate regulations for the disposition
of the public land. . . . Clearly, then . . . , the local land
officers in hearing and deciding upon a contest with respect
Page 355 U. S. 577
to a homestead entry, constituted a competent tribunal,
and
the contest so pending before them was a case in which the laws of
the United States authorized an oath to be administered."
Id. at
152 U. S. 218.
(Emphasis supplied.)
The
Smull case involved very similar facts. The
District Court sustained a demurrer to the indictment, "ruling that
the affidavit was not within the statute defining perjury." The
Government brought the case here under the Criminal Appeals Act.
This Court reversed, saying:
"The charge of crime must have clear legislative basis. . . .
This statute [the perjury statute, in precisely the same terms as
the present one] takes the place of the similar provision of § 5392
of the Revised Statutes, which, in turn, was a substitute for a
number of statutes in regard to perjury, and was phrased so as to
embrace all cases of false swearing, whether in a court of justice
or before administrative officers acting within their powers. . . .
It cannot be doubted that a charge of perjury may be based upon
[the perjury statute] where the affidavit is required either
expressly by an act of Congress, or by an authorized regulation of
the General Land Office, and is known by the affiant to be false in
a material statement. . . . [W]hen, by a valid regulation, the
Department requires that an affidavit shall be made before an
officer otherwise competent, that officer is authorized to
administer the oath within the meaning of [the perjury statute].
The false swearing is made a crime, not by the Department, but by
Congress; the statute, not the Department, fixes the penalty.
[
Footnote 5]"
Id. at
236 U. S.
408-409.
Page 355 U. S. 578
It follows that the admission hearing, held under the District
Court's Rule 3, and at which appellee testified under oath, was a
"case in which a law of the United States authorizes an oath to be
administered," within the meaning of that clause as used in the
perjury statute.
The judgment of the District Court is reversed, and the case is
remanded to that court for further proceedings not inconsistent
with this opinion.
Reversed.
MR. JUSTICE DOUGLAS agrees that the Court has jurisdiction of
the appeal, but he dissents on the merits. In his view, this
judge-made rule is not "a law of the United States" within the
meaning of the perjury statute, 18 U.S.C. § 1621.
[
Footnote 1]
That section, in pertinent part, provides:
"Whoever, having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify,
declare, depose, or certify truly, . . . willfully and contrary to
such oath states . . . any material matter which he does not
believe to be true, is guilty of perjury. . . ."
[
Footnote 2]
Rule 8 is a substantial adoption of the Canons of Professional
Ethics of the American Bar Association.
[
Footnote 3]
Which was then being presided over by a district judge from
another district, sitting by designation.
[
Footnote 4]
The author there shows that the requirement that a witness must
take an oath before giving testimony goes back to early
civilizations and has a long history at common law (§ 1815), and
that for centuries Anglo-American law has remained faithful to the
precept that, "for
all testimonial statements made in
court, the oath is a requisite." § 1824.
[
Footnote 5]
These cases, as well as
United States v. Morehead,
243 U. S. 607,
show that the perjury statute covers
ex parte proceedings
or investigations, as well as ordinary adversary suits and
proceedings.