If you think the key to avoiding perjury is simply to be honest, I have a story for you. Leaving one of my early programming jobs and being honest almost landed me in jail.
I have avoided telling this story publicly because of an irrational fear of repercussions. However, more than twenty years have passed since the events in this post, and I have taken care not to name names. So, I think I will be fine.
I Am a Developer!
Back in 1995 I landed my second paid programming gig. It was a great opportunity to join a small programming shop, where I would work on custom software development for external clients. Prior to this, my only other job was building FPGAs using a language called VHDL. I was excited about the prospect of working on “real” software, as opposed to the embedded systems I had been building.
The job took an immediately disappointing turn when I learned I would not be working on Mac desktop software as I had been hired to do. Instead, because my previous job had occasionally had me working in Windows, the owner decided that I would work on a contract he had accepted to build a custom desktop application on the new and shiny Windows 95. From that point on, I was a Windows developer, a fact which did not change for almost two decades. But that is a story for another time.
The owner of this particular company was a bit of a micromanager, and he insisted on being kept apprised of every minor detail. He even insisted on editorial control over my résumé. This is not quite as odd as it might seem at first. When the company would bid on new development contracts, some potential clients would want to know the background of the developers who would be doing the actual work.
This caused little angst for a year or two. In fact, I appreciated the improvements he helped me make. I was happy that someone else was looking out for my future employment prospects, even if that was not the primary motivation. The trouble began when he asked me to falsify information on my résumé.
My Fake Résumé
The client we were currently bidding on indicated that they only wanted college graduates working on their project. I was the only employee without a college degree, but I was also the only Windows developer. The owner feigned ignorance of my lack of degree, even though I had always been upfront about never having graduated. After he calmed down, he suggested that I simply add a fake Computer Science degree to my résumé, figuring that the client would never check. I refused.
As I recall, he added it himself and sent off the paperwork with the bid. I do not remember exactly how I discovered the deception, but I did and was furious that he intentionally misrepresented me to the client. It was then I decided I could no longer work for him or the company in good conscience. This was my integrity and reputation he was compromising. I had to draw the line there.
The owner of the company was a fairly large and gruff individual, and a little intimidating to my younger self. I mustered some courage, walked into his office, tendered my immediate resignation, and handed him my office key. Surprisingly, he was gracious about it, gracious enough that I was a bit suspicious of what was coming next. I did not have long to wait.
The next day I received an email with some “exit paperwork” he wanted me to complete. I read it over, and it all seemed pretty routine. It was an agreement not to solicit any of the company’s employees or clients, along with an affidavit stating that I possessed no company property or source code. Feeling relieved, I signed the documents and sent it all back to him.
About a week went by, and my job search was already showing results. I had an interview with a regional telecom company, and it looked like I would be hired, at more than double what I had been making. I could not believe my good fortune. Not only was I getting away from a toxic situation, but it appeared I would be able to buy the house my wife and I had been considering. All was well, until it was not.
While cleaning up my office area, I found a few CDs. They were some MSDN Subscriber CDs that contained Visual Studio. These were clearly the property of my former employer, and I presumed I had missed them earlier. Not wanting to be accused of theft, and being the nice guy that I am, I immediately emailed my former boss to let him know I found the CDs, and offered to hand-deliver them if he would like. After I sent the email, I set the CDs aside and put them out of my mind. At this point, I still assumed we were on reasonably friendly terms.
Apparently that assumption was wildly incorrect.
Early the next morning, before my wife and 2-year-old son were awake, I received a FedEx Priority Overnight package from an unfamiliar address in downtown Nashua, New Hampshire. Upon opening the envelope, my day got dramatically worse. The letter inside was printed on the letterhead of a Nashua law office. I wish I still had a copy so that I could reproduce it here, but the gist was as follows:
- The letter alleged that I had perjured myself in my affidavit.
- I was being accused of willful theft of company property (said MSDN CDs).
- I was further being accused of maintaining copies of client source code. I do not know where that came from.
- The letter informed me that I was now the subject of both civil and criminal investigations, and advised me to retain counsel immediately.
I was stunned. I had no idea what to do or whom to call. I had never hired an attorney, and had no idea how to do so. There was no Google to turn to, no internet forums to whom I could ask for help. I was utterly frightened and alone.
18 U.S. Code § 1621
The relevant portion of 18 U.S. Code § 1621 defines perjury as…
Whoever … in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true … is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both.
The way I read that is that you need to declare that something is true, while knowing or believing it is not. I found this definition at the Cornell Law School website in about 30 seconds of searching. Had I been able to find that definition back in 1997, I would have felt a little better. As it was, I had no idea what to do or where to turn.
I thought I was going to prison for accidentally keeping some CDs. My wife and child would be left alone, with no financial support, because of a stupid mistake I had made. I was terrified.
A few hours later, after the initial panic had subsided, I opened the Yellow Pages (remember those?) and found some attorneys in the area who offered a free one-hour consultation. I selected one at random. This all happened on a Saturday, so I had to wait until Monday morning to call. It was a stressful weekend.
First thing Monday morning I called the law office I had chosen. The receptionist put me through to one of their lawyers and I explained my situation. He asked me to fax a copy of the letter, which I did immediately. Yes, I owned a fax machine in the 90s.
A short time later, the lawyer called me back and asked for my side of the story, which I gave him. He listened politely, asked a few questions, and then told me he would help me. He informed me that I had nothing to worry about. I did not commit perjury, and that it was not proper to threaten criminal prosecution.
He said his only concern would be if I really did keep copies of the client source code. If it could be established that I had done so, and the code was worth enough money, then it could be considered grand larceny. I assured him I did not, and that I would wipe my hard drives if it came to that.
We arranged to meet in his office that afternoon. While sitting in his office, he made a phone call directly to my former boss. I think my boss was surprised that I had hired an attorney, because he seemed taken aback by the phone call.
My lawyer laid into him. He informed my boss in no uncertain terms that it was highly illegal for a private citizen to threaten criminal prosecution in New Hampshire. If he had evidence of a crime, he should file a formal complaint. His threats could be construed as a form of harassment, and he was lucky that we were not considering a counter-suit. This was probably the first time I smiled in days.
Bottom line, he said, we denied any wrongdoing, though we admitted that I inadvertently and without malice retained possession of the CDs. The response of threatening litigation was an overreaction to my polite and friendly offer to return company property.
By this time, however, the shock had warn off. My boss went on the offensive. He said that I could not be trusted, demanded assurances that the CDs were the only thing I still had, and claimed that I had told one of his other employees that I was taking the source code with me so I could sell it (not true). Finally, he insisted that all further communication should be through his attorney.
This essentially ended the phone call.
My attorney sighed and told me that he did not think this was going away easily. He promised that he would call the other attorney and start negotiating. He said that if it had ended with the phone call, he would have gladly sent me on my way without charging me anything. Instead, I had to give him a $500 retainer, and hopefully it would not cost any more than that.
$500 in 1997 was a lot of money for a 20-something, out of work software developer. But what choice did I have? I wrote the check, thanked him, and went home.
The Resolution and Apology
Fortunately, my attorney did what he had promised he would do. Within a week, the two attorneys and my former boss ended up agreeing to the following:
- My boss would drop all threats of civil litigation and agree not to pursue criminal charges.
- I would physically return the CDs to my boss’ attorney.
- There was to be no further contact between my former employer and myself, verbal, physical, or in writing.
- I would sign another affidavit affirming that I had no other company property. My attorney told me that because my first one was no longer accurate, signing another was reasonble.
- I had to apologize to my boss in writing for putting him through this. Yep, you read that correctly. I had to apologize.
My pride demanded refuse. I had done nothing wrong. Where was the justice in forcing an apology? In the end, calmer heads prevailed. My attorney said it was a small price to pay to make this all go away. I sucked it up, wrote the requested apology, and delivered that with the CDs to my boss’ attorney.
Still trying to take the high road, I remember commenting to his attorney that I thought it was a shame the way everything transpired. I mentioned that it all could have been done in a polite, pleasant, and even friendly manner. That was the wrong thing to say.
His attorney proceeded to lecture me on the seriousness of what I had done. He told me that I lacked professionalism and integrity, and that everything that happened was entirely my fault. He suggested that I be a little more honest in my future business dealings, and that had he not gotten involved, who knows what I would have done with the assets I still retained.
I understood at that point that my former boss probably really thought I had kept some valuable source code, painted me as a common criminal to his attorney, and nothing I could do would convince him otherwise.
I handed everything to the attorney and left without a handshake or a thank you. I felt brutalized and traumatized, suddenly wondering whether perhaps it was somehow my fault after all.
I related the encounter to my attorney, and he told me my mistake was saying anything at all, to anyone, ever. He said I should never have admitted to having anything and would have been better off destroying the CDs.
What Could have Been?
I often wonder what would have happened to me if my boss had really sworn out a criminal complaint against me. Sure, it would have been up to the prosecutor to prove my guilt beyond a reasonable doubt. However, how hard is to imagine an overzealous prosecutor using my admitted possession of the CDs to bully me into a guilty plea? I would have become a convicted felon. Even had I prevailed, my life would have been ruined.
Whenever I see a story in the news about someone being prosecuted for perjury for an unrelated crime, my mind returns to this experience. The political world is full of examples of this: from President Clinton being found guilty of lying to a Grand Jury and losing his license to practice law, to “Scooter” Libby being sentenced to prison for lying to an FBI investigator. I think even one of Martha Stewart’s convictions was for lying.
Even today, we see what appears to be purely political charging of political opponents with the crime of perjury, after making seemingly innocent mistakes during an investigation. When I see these sorts of things, I feel a certain level of empathy for the accused.
No one deserves to have their lives destroyed for an innocent mistake
The Moral of This Story
As I mentioned, this all happened more than twenty years ago. The intervening years have provided me with some context, maturity, experience, and wisdom that I lacked back then.
I have taken away a few lessons from this fiasco. I share them with you in the unlikely event that you ever find yourself in a similar situation.
- At the end of the day, your integrity and reputation are all you have. Protect them without mercy.
- Sign nothing you do not fully understand without paying an attorney to review it, especially if it includes the words, “Under penalty of perjury.”
- When someone shows you who they really are, believe them. My boss showed me he was willing to lie to get a sale. That was a warning I should have heeded more carefully.
- Be cautious when your employer asks you to take work home. Keep an inventory of any assets that end up in your possession, especially if you copy something to a device you own personally.
- If you ever discover company assets belonging to a former employer, destroy them. Do not try to be helpful by returning them.
- People can be unreasonably vindictive.
In the end, the only winners in this encounter were the two attorneys. My boss ended up with his CDs back, and I was out $500. I do not know how much he paid his own attorney, but I am sure it was more than $0.
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