ON APPEAL FROM THE FINAL ORDER OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: Alito, Lewis* & McKee, Circuit Judges
The opinion of the court was delivered by: McKEE, Circuit Judge.
Criminal No. 4: CR-96-269
The government appeals the order of the District Court for the Middle District of Pennsylvania dismissing a five-count indictment against Robert Sherman in which he was charged with committing perjury before a federal grand jury in violation of 18 U.S.C. § 1621. The district court held that the prosecution improperly charged Sherman under that general perjury statute rather than the more specific false declarations statute, 18 U.S.C. § 1623, thereby denying him the ability to assert the recantation defense available under 18 U.S.C. § 1623(d). For the reasons that follow, we will reverse and remand for further proceedings consistent with this opinion.
On October 23, 1996, Robert J. Sherman was indicted on five counts of perjury under 18 U.S.C. § 1621. The indictment stemmed from Sherman's testimony in the medical malpractice trial of Samuel and Gail Gassert v. Latif Awad, M.D. and Geisinger Medical Center. Sherman- a longtime obstetrician/gynecologist - had testified as the plaintiffs' medical expert in that trial. When cross examined about his qualifications as an expert, Sherman had testified that he was licensed to practice medicine in the District of Columbia, Virginia and Massachusetts and that none of his licenses had ever been revoked, suspended or restricted. App. at 63. He further testified that he had never been subject to any disciplinary proceedings by any hospital or medical society. App. at 62. He did, however, acknowledge
that he had once been named in a medical malpractice case fifteen years earlier, involving a problem with a"D & C",*fn1 but he described it as "routine." App. at 63. When Sherman provided that testimony, he knew that all of his licenses had been revoked, and defense counsel ultimately elicited this admission from Sherman. Because that testimony is at the heart of this appeal, we will quote the relevant exchange at length:
Q: At the present time you are licensed to practice medicine in Virginia.
Q: Over the course of your practice, which has been about how many years now?
Q: Okay, over the course of your practice, how many states have you ever been licensed to practice in?
A: I was licensed in Massachusetts, Virginia, Maryland, and D.C.
Q: And you've continued to keep your license current in Virginia.
Q: Do you remember at the time of your retirement in 1985, do you remember what states you had licenses in?
A: I don't have that handy at the moment.
Q: Well, were you licensed to practice medicine in Virginia in 1985?
Q: How about Massachusetts?
A: I moved away from Massachusetts so I didn't bother with that. . . . .
Q: Did you ever have your privileges at any of those hospitals either revoked, suspended or restricted?
Q: Did you ever have any of your hospital privileges in Boston or in the Boston area revoked, suspended or restricted?
Q: Have you ever been subject to any disciplinary proceedings by any--
(Objection and objection overruled)
Q: Dr. Sherman, have you ever been subject to any disciplinary proceedings by a hospital or medical society?
Q: Have you ever been named as a defendant in a medical malpractice suit?
(Objection and objection overruled)
A: I had a malpractice case about 15 years ago myself, yes.
Q: Could you tell us what that was about?
A: It was settled somehow or other, but there was a routine case.
Q: Was that an OB/GYN case?
A: Well, there was a D & C problem.
Q: You mentioned that over the course of your practice you were licensed in four states that you told us about. Have any of those licenses ever been revoked, suspended or restricted in any fashion?
A: No, I let them--I let them go because I had no intention of going back to active OB.
Q: So you let your license in Massachusetts lapse?
Q: And you let your license in Maryland lapse?
Q: And you let your license in the District of Columbia lapse?
Q: Go back to your licensures, Doctor. Isn't it true that you had your license to practice medicine in the District of Columbia revoked in 1977?
A: Yes, it was. Yes, but--
Q: Isn't it true that you had your license to practice medicine in Massachusetts revoked in 1983?
(Objection and objection overruled).
Q: Isn't it true that you had your license to practice medicine in Virginia revoked in 1979?
A: But it was reinstated.
Q: The question to you, Doctor, is isn't' it true that your license to practice medicine in ...