U.S. v. Sherman, 97-7073
| Citation | 150 F.3d 306 |
| Decision Date | 30 July 1998 |
| Docket Number | No. 97-7073,97-7073 |
| Parties | UNITED STATES of America, Appellant v. Robert J. SHERMAN |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Theodore B. Smith, III (Argued), Office of United States Attorney, Harrisburg, PA, for Appellant.
Benjamin S. Waxman (Argued), Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami, FL, for Appellee
Before: ALITO, LEWIS * & McKEE, Circuit Judges.
The government appeals the order of the District Court for the Middle District of Pennsylvania dismissing a fivecount indictment against Robert Sherman in which he was charged with committing perjury before a federal grand jury in violation of 18 U.S.C. § 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. § 1623, thereby denying him the ability to assert the recantation defense available under 18 U.S.C. § 1623(d). For the reasons that follow, we will reverse and remand for further proceedings consistent with this opinion.
On October 23, 1996, Robert J. Sherman was indicted on five counts of perjury under 18 U.S.C. § 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. Shermana 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to practice medicine in the District of Columbia, Virginia and Massachusetts and that none of his licenses had ever been revoked, suspended or restricted.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 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 When Sherman provided that testimony, he knew that all of his licenses had been revoked, and defense counsel ultimately elicited this admission from Sherman.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:
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(Objection and objection overruled).
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Sherman was subsequently indicted for perjury under 18 U.S.C. § 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. § 1623, but not under 18 U.S.C. § 1621. See 18 U.S.C. § 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. § 1291. Our standard of review is plenary.
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. § 1621, rather than the false swearing statute, 18 U.S.C. § 1623, as the latter statute more specifically applied to his conduct, and not prosecuting under that statute improperly deprived Sherman...
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