[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
Nos. 07-11976 & 07-13041 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 06-00422-CR-T-30-TBM & 05-00395-CR-24MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM E. BURKE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(March 26, 2008)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
William E. Burke appeals his conviction for making irreconcilably
inconsistent material statements under oath, in violation of 18 U.S.C. § 1623, and
the revocation of his probation on a separate charge due to the conviction. On
appeal, Burke argues that there was insufficient evidence to support his conviction
under § 1623 and that the district court abused its discretion in revoking his
probation because he was not on probation when he committed the § 1623
violation.
I. Sufficiency of the Evidence
Here, where Burke timely moved for a judgment of acquittal (see
Government’s Brief at 9), we review the sufficiency of the evidence de novo.
United States v. Bender, 290 F.3d 1279, 1283-84 (11th Cir. 2002). “We view the
evidence in the light most favorable to the government, with all reasonable
inferences and credibility choices made in the government’s favor.” Id. at 1283
(internal quotation marks omitted).
To sustain a false declaration conviction, the government must prove that
the defendant, while under oath, knowingly made a false material declaration.
Section 1623(c) further provides:
(c) An indictment or information for violation of this section alleging that,
in any proceedings before or ancillary to any court or grand jury of the
United States, the defendant under oath has knowingly made two or more
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declarations, which are inconsistent to the degree that one of them is
necessarily false, need not specify which declaration is false if--
(1) each declaration was material to the point in question, and
(2) each declaration was made within the period of the statute of
limitations for the offense charged under this section.
In any prosecution under this section, the falsity of a declaration set forth
in the indictment or information shall be established sufficient for
conviction by proof that the defendant while under oath made
irreconcilably contradictory declarations material to the point in question
in any proceeding before or ancillary to any court or grand jury. It shall be
a defense to an indictment or information made pursuant to the first
sentence of this subsection that the defendant at the time he made each
declaration believed the declaration was true.
18 U.S.C. § 1623(c).
As § 1623(c) indicates, while the government is required to show that Burke
knowingly made two or more declarations under oath that are irreconcilably
contradictory, the government need not prove which of the declarations was false.
See Dunn v. United States, 442 U.S. 100, 108, 99 S. Ct. 2190, 2195, 60 L. Ed. 2d
743 (1979) (explaining that §1623(c) “was a response to perceived evidentiary
problems in demonstrating perjury” and the statute relieved the government from
“proving which of two or more inconsistent declarations was false”); accord
United States v. Jaramillo, 69 F.3d 388, 390 (9th Cir. 1995); United States v.
McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).
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Generally, the knowledge element of an offense may be proven through
circumstantial evidence. United States v. Macko, 994 F.2d 1526, 1533 (11th Cir.
1993). We have held that, in combination with other evidence, a jury may
consider a defendant’s statements as substantive evidence of his guilt when the
jury disbelieves his testimony. United States v. Brown, 53 F.3d 312, 314 (11th
Cir. 1995). “This rule applies with special force where the elements to be proved
for a conviction include highly subjective elements: for example, the defendant's
intent or knowledge . . . .” Id. at 315.
At trial on the subject § 1623 offense, the government showed, through the
use of a government witness and transcript testimony, Burke’s two inconsistent
statements taken under oath: (1) the October 14, 2005 plea hearing where Burke
pled guilty to “knowingly and corruptly” accepting a $3,000 bribe;1 and (2) the
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Specifically, the following colloquy occurred:
The Court: Let me review with you, Mr. Burke, the elements of the
offense. First, that you, a public official, demanded and sought, received and
accepted, agreed to receive and accept either personally and for another person
and entity, something of value, in this case, $3000. Secondly, that you did so
knowingly and corruptly in return for being influenced in the performance of an
official act and being influenced to allow and to make opportunity for the
commission of a fraud on the United States. Do you understand what you are
charged with and the elements of the crime?
Mr. Burke: Yes, Your Honor.
The Court: How do you plead, Mr. Burke, guilty or not guilty?
Mr. Burke: Guilty, Your Honor.
...
The Court: Did you, Mr. Burke, acting in such a capacity [as a public
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May 2006 trial of Burke’s co-defendant (who allegedly offered Burke the bribe)
where Burke testified that he did not knowingly accept a bribe.2
In his defense to the § 1623 charge, Burke testified that following his guilty
plea, but before his May 2006 testimony, he had done some soul searching and
research, and no longer believed that he had knowingly accepted a bribe. (Doc. 49
at 79, 8:06-422).
Burke contends that the government’s evidence was insufficient because it
only showed that Burke’s declarations were inconsistent—not that Burke made the
declarations knowing that they were false. Burke maintains that he made each
statement believing it to be true at the time when he testified, which negates the
knowledge element of the charge.
We hold that there was sufficient evidence to support Burke’s § 1623
official] accept approximately $3000 from someone else?
Mr. Burke: Yes, Your Honor.
The Court: And did you do this knowingly and corruptly in return for
being influenced in the performance of an official act or to make an opportunity
for the commission of a fraud on the United States?
Mr. Burke: Yes, Your Honor.
(Doc. 12 at 20, 22, 8:05-395).
2
Burke testified that, if he did impermissibly receive money, he did so unwittingly
because he did not intent to accept a bribe. (Exhibits Folder, Government’s Ex. 7 at 159.) More
pointedly, Burke was asked “Did you commit a crime with [the co-defendant]?” (Gov’t Ex. 7 at
161, 8:06-422.) Burke answered: “In my heart of hearts, I do not think I committed a crime.”
(Id.)
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conviction. Despite Burke’s testimony to the contrary, the jury was permitted to
reject Burke’s proffered explanation for his inconsistent statements and infer from
the circumstantial evidence that he knowingly made a materially false declaration
under oath during his plea hearing or at his co-defendant’s trial. See United States
v. Williams, 390 F.3d 1319, 1326 (11th Cir. 2004) (“Where some corroborative
evidence of guilt exists for the charged offense . . . and the defendant takes the
stand in her own defense, the Defendant’s testimony, denying guilt, may establish,
by itself, elements of the offense.”).
II. Probation Revocation
Burke argues that he did not violate his probation on the bribery offense
because he was not on probation when he testified to accepting a bribe at his
October 14, 2005 plea hearing. Burke does not dispute that he was on probation
when he provided contrary testimony at the May 2006 trial of his co-defendant.
We review “a district court’s revocation of probation for an abuse of
discretion.” United States v. Mitsven, 452 F.3d 1264, 1266 (11th Cir.), cert.
denied, — U.S. —, 127 S. Ct. 663, 166 L. Ed. 2d 521 (2006). We review a district
court’s statutory interpretation de novo. United States v. Castro, 455 F.3d 1249,
1251 (11th Cir. 2006) (per curiam).
We have not addressed when a § 1623(c) violation occurs. The Tenth
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Circuit, however, has addressed the issue in the context of whether certain
sentencing enhancements apply. See United States v. Glover, 52 F.3d 283, 287
(10th Cir. 1995). In Glover, Glover was indicted on a charge of Continuing
Criminal Enterprise (CCE), pled guilty, and testified against a codefendant in
exchange for a reduced sentence. Id. at 284. When the codefendant moved for a
new trial, Glover executed an affidavit recanting his trial testimony and declaring
that his trial testimony was false. Id. Glover subsequently was indicted for
making irreconcilably contradictory sworn declarations, in violation of § 1623(c),
and he pled guilty. Id. Because it was undisputed that Glover was serving his
sentence for the CCE conviction when he executed the affidavit, the district court
enhanced his criminal history by three points. Id. at 287. The Tenth Circuit held
that the affidavit completed Glover’s crime; i.e., “[i]f [Glover] had not given the
affidavit, then he would not have violated § 1623(c) by making, under oath,
‘irreconcilably contradictory declarations material to the point in question in any
proceeding before or ancillary to any court.’” Id. (quoting 18 U.S.C. § 1623(c)).
We agree with Tenth Circuit. Under the plain language of § 1623(c), a
violation does not occur until a defendant makes a statement under oath that is
irreconcilable with a prior statement under oath. Here, Burke completed the
§ 1623(c) offense during the May 2006 trial of his co-defendant, at which time he
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was on probation. The district court, therefore, did not abuse its discretion in
revoking Burke’s probation. Accordingly, we affirm.
AFFIRMED.
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