Metropolitan News-Enterprise


Monday, April 21, 2003




Court Upholds Perjury Conviction Based on Auto Accident Testimony

Ninth Circuit Declines to Extend ‘Perjury Trap’ Defense to Trials or Depositions


By KENNETH OFGANG, Staff Writer/Appellate Courts


A woman who sued the federal government for $1 million after a minor collision with a postal truck was properly convicted of perjury, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The judges rejected Joan McKenna’s claim that government lawyers committed misconduct by laying a “perjury trap” during the civil case, asking her questions that they already knew the answers to, solely in order to prosecute her.

U.S. District Judge Charles Breyer of the Northern District of California sentenced McKenna to six months in prison plus three years of supervised release—six months of it under house arrest—plus a $10,000. A jury found McKenna guilty of lying about a prior accident.

The lawsuit stemmed from a December 1994 accident in which McKenna’s car sustained less than $64 worth of damage; the postal vehicle sustained none, according to testimony.

In July 1998, McKenna was deposed by Assistant U.S. Attorney Emily Kingston and was asked whether she had ever suffered a spinal or neck injury. She said the only such injury was a fused spine at the time her son was born and that she recovered fully.

Records Subpoenaed

In September 1998, McKenna told the government’s examining physician that she’d had a slip-and-fall in 1997 and broken her ankle. A month later, the government subpoenaed records from her chiropractor showing that she’d suffered neck and spine injuries in a car accident a month before the collision with the postal truck.

In April 1999, she submitted corrections to the deposition she’d given 10 months earlier. She claimed that she had disclosed the November 1994 accident, but that the court reporter was having equipment problems and had left the room, and thus her disclosure did not appear in the transcript.

She was then re-deposed and reiterated that she had disclosed the prior accident at the first deposition but that the reporter had equipment problems and had omitted the disclosure from the transcript.

At the non-jury trial of her suit before a magistrate judge, McKenna was asked whether she had disclosed the accident during discovery, and she said “I believe I did.” She explained that she considered her release of medical records to be such a disclosure, and that she again disclosed it to the examining physician. She also repeated her claim that she had mentioned it while the court reporter was having equipment problems at the deposition.

Plaintiff Indicted

The suit was dismissed by the magistrate judge in October 1999. Ten months later, McKenna was indicted and charged with three counts of perjury and one count of making a false declaration under oath.

The indictment alleged that she lied at the first deposition by not mentioning the previous accident, that she lied at the second deposition by claiming that she had mentioned the accident at the first deposition and that the court reporter had left the room during that deposition, that she lied at trial by claiming that she had disclosed the prior accident at the first deposition and that she had told the examining physician about it, and that she lied at trial by claiming the court reporter had left the room during the first deposition.

On appeal, McKenna’s attorney, John Jordan of San Francisco, argued that all charges other than lying at the first deposition should have been dismissed because the statements were obtained through a perjury trap.

Judge A. Wallace Tashima, writing for the panel, explained that some courts, but not the Ninth Circuit, have recognized a perjury trap defense in cases where someone is accused of lying before the grand jury. The rationale, the judge explained, is that it is an abuse of the grand jury system for the government to use “its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury.”

No Rationale

But even in those jurisdictions where the defense is recognized, Tashima said, there would be no rationale for applying it depositions or trials, where the witness is represented by counsel who can object to questions and advise the witness not to answer on certain grounds.

Besides, Tashima said, it is not improper for the government, like any other litigant, to take a deposition for the purpose of trying to catch a witness in a lie so as to impeach his or her testimony at trial.

In McKenna’s case, Tashima added, the defense would fail in any event because there was no showing that the questions were not germane to legitimate issues in the civil case.

The case is United States v. McKenna, 01-10357.


Copyright 2003, Metropolitan News Company