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.
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:
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
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
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 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, 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
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.
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. A. § 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
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 land 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:
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 judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
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.