Dunn v. United States

Robert Dunn (defendant) provided testimony to a grand jury regarding Phillip Musgrave and illicit drug activity at a prison. A grand jury indicted Musgrave for a drug-related felony. Later, on September 30, 1976, Dunn recanted his testimony in a sworn statement while meeting with Musgrave’s attorney, Michael Canges. As a result, the government (plaintiff) reduced Musgrave’s charges to a misdemeanor. Subsequently, Dunn was indicted for making false statements under 18 U.S.C. § 1623. The indictment indicated that the government intended to establish that Dunn’s statements made to Canges on September 30 were inconsistent with his original grand-jury testimony. Dunn moved for acquittal, arguing that his September 30 statement was not made in a proceeding ancillary to a federal court or grand jury. The district court denied the motion. A jury convicted Dunn on several counts of making false declarations. Dunn appealed to the court of appeals, which affirmed his convictions. However, the court found that the September 30 statement was not sufficient for a false-declarations violation but still affirmed the reasoning that Dunn adopted his September statement in an evidentiary hearing during trial on October 21. The court found a permissible variance between the charges of the indictment, which centered on Dunn’s September statement and Dunn’s testimony during the October evidentiary hearing, which was actually an ancillary proceeding covered by § 1623. Dunn appealed.