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The United States Court of Appeals for the Eighth Circuit accords the word "or" in 18 U.S.C.S. § 1623(d) its ordinary meaning, reading the statute as setting forth two alternative conditions, satisfaction of either of which will allow a declarant to employ the recantation defense to bar prosecution for perjury.
On May 18, 1993, a grand jury indicted Sherry Lynn Smith, charging her with three offenses: conspiracy to structure a cash transaction in violation of 18 U.S.C. § 371 (1988); structuring a cash transaction with a trade or business in violation of 26 U.S.C. § 6050I(f)(1)(C) (1988) and 18 U.S.C. § 2 (1988); and perjury in violation of 18 U.S.C. § 1623(a) (1988). In exchange for her conditional guilty plea to the perjury charge, the other charges were dismissed. The perjury charge arose out of Smith's testimony before a grand jury investigating several individuals, including Smith's boyfriend Craig Keltner, and their involvement in a series of crimes including car theft, kidnapping, mail fraud, burglaries, robberies, and money laundering. The grand jury questioned Smith about the source of funds with which Keltner had purchased a Chevrolet Corvette. Keltner first attempted to make the purchase from a dealership with $12,200 in cash. When the dealership informed him that it would have to file a report with the Internal Revenue Service on any cash transaction in excess of $10,000, Keltner arranged to pay with $9,800 in cash and $2,400 in the form of a check from Smith. The dealership held the $12,200 until Keltner returned with Smith's check, then the dealership returned $2,400 in cash to Keltner. Smith deposited $2,400 in cash into her bank account the same day. Before the grand jury, Smith initially testified that she had invested $3,000 from her savings toward the purchase of the car. She denied that the $2,400 deposited into her bank account after the purchase came from Keltner. After a thirty-eight-minute break in the proceeding, during which Smith reviewed her bank records, she resumed her testimony and recanted her previous statements. Smith admitted that the $2,400 belonged to Keltner and was given to her to deposit as part of the transaction to purchase the Corvette. Prior to Smith’s conditional guilty plea, the district court denied her motion to dismiss the perjury charge against her pursuant to 18 U.S.C.S. § 1623(d). The district court held that § 1623(d) barred prosecution only if the false statement had not substantially affected the proceeding and if its exposure had not become manifest. Smith contended that the district court erred in interpreting § 1623(d) because it construed the two conditions as conjunctive, reading "or" to mean "and."
Did the district court err in interpreting § 1623(d) because it construed the two conditions as conjunctive?
The court held that if Smith was able to satisfy either of the statutory conditions, her prosecution for perjury was barred. Because the wording of § 1623(d) was plain, simple, and straightforward, the word "or" was accorded its normal disjunctive meaning, indicating an alternative. Thus, although the case law of other circuits was to the contrary, the court held that Smith’s prosecution for perjury was barred if she either: 1) recanted before it was manifest that the falsehoods had been or would be disclosed; or, 2) explicitly recanted before the false testimony substantially affected the proceeding. The court also held that the district court misapplied the "manifest" exposure test because it failed to focus on whether the fact that the statements had been or would be exposed as false was objectively manifest to the declarant.