1. When a Federal District Court dismisses an indictment on the ground that it does not allege a violation of the statute upon which it was founded, not merely because of some deficiency in pleading but with respect to the substance of the charge, that is necessarily a construction of the statute, and a direct appeal to this Court lies under 18 U.S.C. 3731. Pp. 573-574.
2. A willfully false statement of a material fact, made by an attorney under oath during a Federal District Court's examination into his fitness to practice before it, constitutes perjury within the meaning of 18 U.S.C. 1621, when the examination was made under a local rule of the District Court specifically authorizing such examination under oath; since such an examination is a "case in which a law of the United States authorizes an oath to be administered," within the meaning of the statute. Pp. 574-577.
Ralph S. Spritzer argued the cause for the United States. On the brief were Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, and Beatrice Rosenberg.
Warren B. King argued the cause for appellee. With him on the brief was Charles Alan Wright. [355 U.S. 570, 571]
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
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. 1
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:
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 [355 U.S. 570, 573] at the hearing of October 12, 1955, "unlawfully, wilfully, and knowingly, and contrary to [his] oath, [stated] material matters which he did not believe to be true" (in particulars set forth in each count), "in violation of Section 1621, Title 18, United States Code." Appellee moved to dismiss the indictment for failure of any of the counts to state an offense against the United States. The court, 3 after full hearing upon the motion, concluded "that Rule 3, under which the defendant took his oath, is not such a law of the United States as was intended by Congress to support an indictment for perjury," and, on that ground, dismissed the indictment. 147 F. Supp. 594. The Government brought the case here by direct appeal under the Criminal Appeals Act, 18 U.S.C. 3731. We postponed further consideration of the question of jurisdiction to the hearing on the merits, 353 U.S. 980 .
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 [355 U.S. 570, 574] perjury statute. In these circumstances, the question of our jurisdiction is settled by United States v. Borden Co., 308 U.S. 188, 193 :
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.
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 [355 U.S. 570, 576] local rules and that they have a clear legislative base. Whether or not its Rule 3 is invalid for any reason - which, as stated, is a question not before us - it was prescribed pursuant to statutory authority, and expressly provides that, under the conditions specified, the court may require the "attorney to appear and be examined under oath."
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 judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
[ Footnote 2 ] Rule 8 is a substantial adoption of the Canons of Professional Ethics of the American Bar Association.
[ Footnote 3 ] The court was then being presided over by a district judge from another district, sitting by designation.
[ Footnote 4 ] The author there shows that the requirement that a witness must take an oath before giving testimony goes back to early civilizations and has a long history at common law ( 1815), and that for centuries Anglo-American law has remained faithful to the precept that "for all testimonial statements made in court the oath is a requisite." 1824.
[ Footnote 5 ] These cases, as well as United States v. Morehead, 243 U.S. 607 , show that the perjury statute covers ex parte proceedings or investigations as well as ordinary adversary suits and proceedings. [355 U.S. 570, 579]