The Denver-based federal appeals court reversed a defendant’s perjury conviction last week, warning prosecutors that it is better to follow up on imprecise or unclear answers than to criminally charge a witness for their response.

A jury convicted Lori Milliron on two counts of perjury, obstruction of justice, and being an accessory after the fact to the murder committed by her romantic partner, Lawrence “Larry” Rudolph. Rudolph was separately convicted for murdering his wife while on an African safari, and Milliron’s charges arose from her statements to the grand jury that was deciding whether to indict Rudolph.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit largely upheld her convictions and 17-year prison sentence. However, it concluded that one of Milliron’s perjury convictions could not stand because the government failed to show that she lied when she said she did not know why Rudolph gave her money on specific occasions.

“Stated plainly, a witness generally can’t be convicted of perjury for saying she didn’t know what went on inside another person’s head,” wrote Judge Gregory A. Phillips in the June 23 opinion. “Our analysis would differ if there were evidence that Rudolph had told Milliron why he gave her money in 2015 and 2016. But as we explain, there isn’t.”

Judge Joel M. Carson III would have gone further and reversed Milliron’s other perjury conviction. While the majority upheld the jury’s finding that Milliron committed perjury by testifying that Rudolph “probably” said he was innocent when she knew he had killed his wife, Carson pointed to 45 instances since the murder where Rudolph denied his involvement to law enforcement, to relatives, and to others.

“A literal reading of the transcript shows that the prosecutor simply asked whether Rudolph had proclaimed his innocence. The record demonstrates that he had,” wrote Carson. “Perhaps the better question to ask Defendant was whether she believed him. Maybe if she answered that question yes, the government could catch her in a lie. But here, we have a bad question with a vague answer that is not clearly a lie.”

There were no witnesses to what happened on Oct. 11, 2016, when Rudolph and his wife, Bianca, were preparing to leave the Zambian camp where the couple had traveled to hunt animals. Bianca sustained a fatal shotgun wound in their cabin and the question became whether her death was accidental or homicide.

Rudolph was a wealthy Pittsburgh dentist. At the time of Bianca’s death, he was having an affair with Milliron, who was an administrator at Rudolph’s dental practice.

The prosecution presented circumstantial evidence that Rudolph was unbothered by, and even benefited from, his wife’s death. He received $4.8 million from her life insurance policies, he spent millions of dollars on properties and cars, and he appeared fixated on quickly cremating her remains in Africa.

Then, in early 2020, a bartender at a steakhouse in Arizona overheard Rudolph allegedly tell Milliron, “I killed my f—ing wife for you.”

A grand jury in Colorado indicted Rudolph in early 2022 for foreign murder and mail fraud. The latter charge related to Rudolph defrauding Bianca’s insurance companies by representing her death as an accident. Milliron was also indicted for knowingly making false statements to the grand jury that explored Rudolph’s charges.

Last fall, the 10th Circuit upheld Rudolph’s convictions. Milliron separately challenged her perjury convictions based on a pair of exchanges before the grand jury with prosecutor Bryan Fields.

Fields asked Milliron why Rudolph was “so generous to you” in giving Milliron tens of thousands of dollars. She responded, “I don’t know why.” After Fields clarified whether Milliron did not know “exactly why he gave you $60,000 in 2015,” Milliron confirmed that she did not “know exactly why.”

Later, Fields asked Milliron whether Rudolph had proclaimed his innocence. She responded that he “probably did.” After Fields asked her for “generalities,” Milliron said Rudolph was “irritated that there was an FBI investigation because he felt he was innocent.”

“What is the government’s answer — the truthful answer — to, ‘Why did he give you this money?’” Phillips asked during oral arguments.

“That she was in a relationship with Mr. Rudolph,” responded Assistant U.S. Attorney Marissa R. Miller.

“And there are all kinds of reasons why someone in a relationship might give money to the other person. It might be, ‘I love you dearly.’ It could be, ‘Please don’t tell on me,’” said Phillips. “She doesn’t know if he’s scared of her, if he’s in love with her. She just can’t know that.”

“Was she being evasive?” added Carson.

Yes, replied Miller.

“Is being evasive sufficient to get you a perjury conviction?” continued Carson.

“Not by itself,” said Miller.

Ultimately, the panel agreed with Milliron that she could not have known precisely why Rudolph gave her money. In the absence of any proof that Rudolph explained his reasoning, Milliron’s answer was not knowingly false.

“We conclude with an important reminder. To address imprecise and evasive testimony, prosecutors should ask better questions rather than pitch perjury charges,” wrote Phillips. “At bottom, the prosecutor’s purpose is ‘to obtain the truth,’ not ‘to obtain perjury.’”

However, the panel’s majority upheld Milliron’s perjury conviction for her statement that Rudolph “probably” proclaimed his innocence. Based on her intimacy with Rudolph and his statement at the steakhouse about killing his wife, the jury could find that Milliron knew Rudolph was not innocent.

“Milliron states that ‘guilty people proclaim their actual innocence all the time.’ Fair enough,” wrote Phillips for himself and Chief Judge Jerome A. Holmes. “But guilty people don’t typically proclaim their innocence to people who know of their guilt. It makes no sense that Rudolph would proclaim his innocence to Milliron after reminding her that he murdered Bianca for her.”

Carson disagreed. He noted the prosecutor never asked whether Rudolph proclaimed his innocence to Milliron, and evidence showed Rudolph made numerous statements denying his involvement in Bianca’s killing. Carson wrote that he was uncomfortable with the prosecutor having asked Bianca to speak in “generalities,” then charging her criminally for her answer.

“Put simply, the jury convicted Defendant for perjury because she gave a vague answer to a poor question that specifically asked only for generalities,” he concluded, adding that he would have overturned both perjury convictions as a result.

The case is United States v. Milliron.