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Prosecuting Civil Perjury Is Unusual, but It Can Mean Prison

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By Ruth Marcus
Washington Post Staff Writer
Tuesday, March 3, 1998; Page A4

    "I challenge you or any of the pundits on the air to find me a case of civil perjury that has been pursued criminally at the federal level in the last 100 years. I dare say they cannot."

    – William H. Ginsburg, NBC's "Today," Feb. 24, 1998

Tell that to Jeffrey Goltz.

Goltz, an orthopedic surgeon in the District who regularly testified as an expert witness in personal injury cases, is serving 18 months in a federal penitentiary for repeatedly inflating his credentials, saying, among other things, that he was educated at the University of Michigan and New York University Medical School rather than Michigan State and New York Medical College.

"The lesson of the Goltz case is that perjury in civil cases is prosecuted and it's prosecuted right here in the nation's capital, not too far from the White House, by the president's own Justice Department," said Goltz's lawyer, Joseph E. diGenova.

DiGenova said he tried unsuccessfully to dissuade prosecutors from bringing the case on the very grounds Ginsburg is asserting – that perjury in civil cases is rarely, if ever prosecuted. "I was told that sometimes perjury in civil cases is important and we have to send a signal," diGenova said.

Said Mark H. Dubester, the assistant U.S. attorney who prosecuted Goltz: "Perjury is really a crime against the courts. You're vindicating the process. You have to have the oath mean something. Otherwise, it means nothing."

Goltz is an unusual case, but by no means the only time federal prosecutors have brought perjury charges arising from a civil lawsuit. In Wisconsin last week, a former partner in a prestigious Wall Street law firm went on trial for lying under oath in a bankruptcy proceeding by failing to disclose that his firm also represented some of the bankrupt company's creditors.

And the federal appeals court in Richmond, in a case decided the day after Ginsburg's comments, upheld the perjury conviction of a Virginia businessman who was prosecuted in a larger financial fraud scheme and had lied during a deposition in a civil lawsuit brought by one of his company's creditors.

A cursory computer search of federal court records turned up more than 25 cases of federal prosecutions for perjury in civil cases – and that does not include prosecutions that went forward but did not result in a written opinion by the court.

Indeed, the Justice Department's manual for federal prosecutors states that "because false declarations affect the integrity of the judicial fact-finding process, all offenders should be vigorously prosecuted."

That mandate, the manual states, extends even to civil cases in which the government is not a party, such as the Paula Jones lawsuit in which the questions arose about whether former White House intern Monica S. Lewinsky and President Clinton may have lied in their sworn statements about whether they had a sexual relationship.

"It's unusual, but it happens," New York University law professor Stephen Gillers said of prosecutions for perjury in civil cases. Gillers, too, initially said he had never heard of such a case but concluded after doing research that he was wrong. "We were conveying the message that perjury is tolerated as part of the game [of civil litigation] and it's not. It's dangerous and it's wrong."

For the most part, prosecutors seem to pursue such cases in situations where the perjury occurred in a civil case brought by the government, such as a forfeiture action; the perjury charge is one element of a broader prosecution; or there is some other factor that made it particularly egregious. For example, prosecutors have brought cases where witnesses lied in order to defraud insurance companies, obtain disability benefits or declare bankruptcy.

In a 1994 case, Ku Klux Klan grand dragon David Wayne Holland was prosecuted for perjury for trying to hide his assets in a private civil rights lawsuit to prevent the plaintiffs from collecting a $450,000 judgment against him. A federal appeals court ruled that the judge who sentenced him erred by reducing Holland's sentence on the basis that his perjury was in a civil proceeding, not a criminal matter. "We categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding," federal appeals court Judge Gerald Tjoflat wrote. "Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals."

Similarly, in a 1993 case, Millard McAfee, a Texas man indicted for lying in a deposition in a civil lawsuit over stolen cattle hides, argued unsuccessfully that the perjury statute did not apply to such depositions because they are "less formal" than proceedings in criminal cases.

McAfee's deposition was replete with taunting of the lawyer questioning him. "So you just lied to me?" the lawyer said at one point.

"That's right," McAfee responded. "I'm not going to help you."

Said the lawyer, "How are we going to know when to believe what you say?"

"You don't," McAfee said.

Other recent examples:

  • United States v. Sassanelli, 1997, in which a car rental manager who submitted phony invoices was convicted of perjury for a false affidavit he filed in the civil case brought by the rental company to recover the money.

  • United States v. Bissell, 1996, in which a New Jersey county prosecutor accused of a number of crimes was prosecuted for lying at a civil forfeiture hearing about when he had obtained an appraisal for the property being seized.

  • United States v. Kross, 1994, in which the government sought to seize the "Earth People's Park" in northeastern Vermont because of drug activity there. Asked whether she had ever seen anyone smoking marijuana there, a onetime resident, Laura Kross, answered, "Not to the best of my recollection," and "No, uh-uh," and was convicted of perjury and sentenced to three years probation.

    Federal prosecutors also have brought charges like obstruction of justice that grow out of civil cases. For example, two Texaco executives were indicted last year for conspiracy and obstruction of justice for withholding evidence in a race discrimination suit.

    Many lawyers say lying in civil cases is an everyday occurrence that the legal system deals with by getting at the truth through the process of discovery and trial – "essentially a self-correcting procedure," as Iran-contra independent counsel Lawrence E. Walsh put it in a recent article in the New York Review of Books. "Truth in the courts is less pristine than truth in the confessional," he wrote. "Ordinarily, prosecutors do not, as Starr is now doing, investigate perjury in a civil action while that action is pending. In sixty years of practice, I have never known this to happen."

    Some have suggested that bringing perjury charges may be particularly questionable when the alleged lying concerned private sexual matters, arguing that an agreement to commit adultery almost of necessity implies an agreement not to tell. But a 1995 Illinois state perjury prosecution touched on similarly private issues. It involved a clergyman who sued a newspaper for libel when it reported he had engaged in homosexual acts with members of his congregation. In the civil case, the clergyman denied those activities – statements that became the basis for later criminal perjury charges.

    © Copyright 1998 The Washington Post Company

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