Replies

Your equating of **materiality** with a need to have all elements of crime in place is flat wrong.

Materiality is more like "germaneness." There would be no perjury in this case if the witness lies about what he had for lunch, or what he watched on teevee, etc., because those inquiries have absolutely no bearing on the investigation at hand.

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding). The testimony need not have actually influenced, misled or impeded the proceeding. For example, potential interference with the grand jury's line of inquiry suffices to establish materiality, because of the grand jury's broad investigative function. United States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993); United States v. Gribben, 984 F.2d 47, 52 (2d Cir. 1993). The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997). A similarly broad construction of materiality is appropriate in the context of false declarations made in connection with civil depositions. United States v. Kross, 14 F.3d 751, 754 (2d Cir.), cert. denied, 115 S.Ct. 99 (1994); United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), cert. denied, 510 U.S. 821 (1993). But see United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir. 1989)(false statement must tend to affect the outcome of the underlying civil suit for which the deposition was taken). The statement may be material to any proper matter of inquiry, including collateral matters that might influence the outcome of decisions before the tribunal, such as determining credibility issues. United States v. Kross, 14 F.3d at 755. Materiality is not negated merely because the tribunal did not believe the testimony or sought cumulative information. United States v. Reilly, 33 F.3d 1396, 1419 n.20 (3d Cir. 1994). Furthermore, testimony may be material even if it relates to events as to which the statute of limitations has run, since the grand jury may have legitimate reasons to inquire about such events aside from an expectation of returning an indictment charging those events as crimes. United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991); United States v. Nazzaro, 889 F.2d 1158, 1165-66 (1st Cir. 1989).
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm

If there is no crime and no possibilty of uncovering a crime, than the testimony is immaterial.

You are trying to make this more complicated that it is.

I think I am wasting my time with you, but others may find the citations useful and edifying.

And, lest we forget, prosecution in cases like this is up to the discretion of the prosecutor. It is selective prosecution to indict for something like this.

I agree with that.

Even you cannot come up with a similar instance. There are none.

I cited one where perjury stood where the underlying offense was impossible because the statute was void due to constitutional infirmity. I don't know the US v. Regan case, so won't comment on it except to say that it appears to stand for the proposition that one does not escape perjury charges just because the investigation is bogus.