In re Davenport
Decision Date | 22 November 2002 |
Citation | 335 Or. 67,57 P.3d 897 |
Parties | In re Complaint as to the CONDUCT OF John P. DAVENPORT, Accused. |
Court | Oregon Supreme Court |
Marc D. Blackman, of Ransom Blackman LLP, Portland, filed the petition for reconsideration for the accused.
No appearance contra.
Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.2
In In re Davenport, 334 Or. 298, 49 P.3d 91 (2002), this court held that, in addition to three other disciplinary rules, the accused had violated Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(2) ( ). As the basis for that violation, this court concluded that the accused had violated 18 USC section 1623, which provides that it is a crime for any person knowingly to make a false, material declaration, under oath, in any proceeding before or ancillary to any court of the United States. In accordance with its conclusions respecting the accused's violations, this court suspended the accused from the practice of law for two years.
The accused timely petitioned this court for reconsideration. We allow his petition for reconsideration to correct the court's discussion of materiality as it relates to 18 USC section 1623. In all other respects, we adhere to the former opinion, including the conclusions respecting the accused's violations and the sanction.
In defining the term "material" for purposes of 18 USC section 1623, this court stated:
334 Or. at 316, 49 P.3d 91. In his petition for reconsideration, the accused disputes the first part of that statement, that is, that an answer must be "relevant to any subsidiary issue under consideration" to be material. Id. (internal citations omitted). In disputing that statement, the accused criticizes this court's citation to Rahman, which is an unpublished decision, because Ninth Circuit Local Rule 36-3 does not permit courts within that circuit to cite unpublished dispositions. In addition, the accused argues that only the latter part of the court's statement sets out the correct test for whether a false statement is "material" under 18 USC section 1623: A false statement is "material" if it has "a natural tendency to influence, or was capable of influencing, the decision-making body to which it was addressed." Id. (internal citations omitted); see United States v. Gaudin, 515 U.S. 506, 509, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)
(so stating).
Although Ninth Circuit Local Rule 36-3 is not binding upon this court, we agree, as a matter of comity, to withdraw the citation to Rahman. We also agree that, to determine if a false statement is "material" for purposes of 18 USC section 1623, the proper inquiry focuses upon whether the false statement has "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." Gaudin, 515 U.S. at 509, 115 S.Ct. 2310 (...
To continue reading
Request your trial-
In re Paulson
...had prevented forming the requisite mental state). 27. See, e.g., In re Davenport, 334 Or. 298, 49 P.3d 91, modified on recons., 335 Or. 67, 57 P.3d 897 (2002) (two-year suspension based on several sworn misrepresentations made in connection with a single matter); In re Staar, 324 Or. 283, ......
-
Johnson v. Saif
... ... What defendants did not disclose or discuss, however, is the fact that the brief opinion was unpublished. Under the rules of the Ninth Circuit, such opinions should not be cited except in circumstances not pertinent to this case. Ninth Circuit Rule 36-3. See In re Davenport ... ...
-
In Re Complaint As To The Conduct Of D. Rahn Hostetter
...that the lawyer knows is false and material. In re Davenport, 334 Or. 298, 308, 49 P.3d 91, adh'd to as modified on recons., 335 Or. 67, 57 P.3d 897 (2002). “A lawyer acts knowingly by being consciously aware of the nature or attendant circumstances of the conduct, but not having a consciou......
-
In re Conry
...the wrongful nature of his conduct. See In re Davenport , 334 Or. 298, 321, 49 P.3d 91, modified and adh'd to on recons. , 335 Or. 67, 57 P.3d 897 (2002) ("Every lawyer should have the opportunity to defend against accusations respecting his or her personal character and professional respon......