## Facts

- A federal grand jury investigated suspected corruption and bribery within the Washington, D.C. Metropolitan Police Department.
- Internal Affairs surveilled an establishment (“Bosco’s Carryout”); after the operation was compromised, officers circulated a false cover story.
- Officer David H. Moore became a focus after a fellow officer reported Moore might be passing surveillance information to the proprietor.
- Moore testified before the grand jury and made statements later alleged to be false, including denying recollection of a key conversation, minimizing the purpose of a later meeting, and denying calls about the surveillance.
- Prosecutors later confronted Moore with a secret recording of a conversation relevant to his testimony and indicated he could avoid perjury charges by returning to the grand jury to admit his testimony was false.
- During a pre-grand-jury “rehearsal” with prosecutors, Moore admitted one conversation occurred but maintained an innocent explanation for another; the rehearsal ended.
- Moore was indicted on four counts of making false declarations to a grand jury under 18 U.S.C. § 1623.
- Moore sought to return to the grand jury to recant under § 1623(d); the government refused to recall him.
- The district court dismissed the indictment on the theory that § 1623(d) effectively entitled Moore to an opportunity to recant.
- The government appealed the pretrial dismissal.

## Issues

1. Whether the Double Jeopardy Clause barred the government’s appeal from the pretrial dismissal of the indictment.
2. Whether 18 U.S.C. § 1623(d) grants a witness an enforceable right to be recalled to the grand jury to recant, such that denial requires dismissal.
3. Whether Moore could satisfy § 1623(d)’s conditions, including recantation in the “same continuous” proceeding and recantation before it became manifest the falsity would be exposed and before any substantial effect on the proceeding.

## Decision

- The court held Double Jeopardy did not bar the appeal because jeopardy had not attached when the indictment was dismissed pretrial.
- The court reversed the dismissal and remanded.
- The court held § 1623(d) does not require prosecutors to return a witness to the grand jury to recant and does not mandate dismissal merely because the government declined to facilitate recantation.
- The court concluded Moore had not actually recanted within the grand jury proceeding and, after being confronted with the recording, it was manifest to him that any falsity had been or would be exposed.

## Legal Principles

- Jeopardy does not attach, and a government appeal is not barred, when an indictment is dismissed before trial begins.
- 18 U.S.C. § 1623(d) operates as a limited bar to prosecution only if the witness actually admits falsity in the same continuous court or grand jury proceeding and only if the admission occurs before the false declaration substantially affects the proceeding and before it becomes manifest the falsity has been or will be exposed.
- Section 1623(d) is not a general “recantation defense” and does not create a procedural entitlement to be recalled to the grand jury.
- Discussions with prosecutors outside the grand jury do not constitute recantation “in” the grand jury proceeding for purposes of § 1623(d).
- Once the witness knows the falsehood has been or will be exposed, later attempted recantation cannot satisfy § 1623(d).

## Conclusion

The D.C. Circuit reinstated the indictment, holding that § 1623(d) bars prosecution only when a witness timely and unambiguously recants within the same continuous grand jury proceeding before the falsehood affects the proceeding and before exposure is manifest; the government has no duty to provide an additional grand jury appearance to create that bar.


United States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979)