## Facts

- Robert J. Sherman, an obstetrician/gynecologist, testified as a medical expert for plaintiffs in a Pennsylvania medical-malpractice trial.
- On cross-examination in that trial, Sherman testified he held medical licenses in multiple jurisdictions and that none had been revoked, suspended, or restricted; he also denied having been subject to disciplinary proceedings.
- Sherman’s testimony about his licensing and disciplinary history was false; he knew his licenses had been revoked, and defense counsel ultimately elicited admissions regarding the revocations.
- A federal grand jury later investigated Sherman’s prior testimony and his statements concerning his medical licensure and discipline.
- During his grand jury appearance, Sherman allegedly made additional false, material statements about his licensure and disciplinary history.
- A federal grand jury in the Middle District of Pennsylvania indicted Sherman on five counts of perjury under 18 U.S.C. § 1621 based on the grand jury testimony.
- The district court dismissed the indictment, reasoning the government was required to charge under 18 U.S.C. § 1623 (which contains a statutory recantation defense in § 1623(d)) rather than § 1621.
- The United States appealed the dismissal.

## Issues

1. Whether alleged false testimony before a federal grand jury that fits both 18 U.S.C. § 1621 and 18 U.S.C. § 1623 must be prosecuted under § 1623, rather than § 1621, because § 1623 provides a recantation defense.
2. Whether § 1623 impliedly repeals or displaces § 1621 for false statements made in proceedings before or ancillary to a federal court or grand jury.
3. Whether prosecuting under § 1621, thereby foreclosing the § 1623(d) recantation defense, is improper or unconstitutional absent discriminatory enforcement.

## Decision

- The Third Circuit reversed the district court’s order dismissing the indictment and remanded for further proceedings.
- The court held that conduct satisfying both statutes may be prosecuted under either § 1621 or § 1623.
- The court held that § 1623 does not impliedly repeal or supersede § 1621 in the grand jury context.
- The court held that the government’s choice to charge under § 1621 is permissible even though § 1623 would have offered a recantation defense.
- The court noted the district court had not reached other potential challenges to the indictment, which could be addressed on remand.

## Legal Principles

- Implied repeals are strongly disfavored, particularly in criminal law; overlapping criminal statutes may coexist absent a clear congressional command to displace the earlier statute.
- When a single act violates more than one criminal statute, the government may elect which statute to charge, so long as it does not discriminate against a protected class.
- A statutory defense confined by Congress to a particular offense (such as § 1623(d)’s recantation provision) is not available when the government prosecutes under a different statute lacking that defense (such as § 1621).
- Differences in available defenses or penalties between overlapping statutes do not, without discriminatory enforcement, establish a due process or equal protection violation.

## Conclusion

The Third Circuit held that alleged false statements to a federal grand jury may be prosecuted under either the general perjury statute (§ 1621) or the false declarations statute (§ 1623), that § 1623 does not displace § 1621, and that a defendant charged under § 1621 is not entitled to § 1623(d)’s recantation defense; the dismissal was reversed and the case remanded.


United States v. Sherman, 150 F.3d 306 (3d Cir. 1998)