Monday, August 8, 2011
Posted by D. Daniel Sokol
In short, the appeal centers on the circuit split -- recognized seven years ago as cert-worthy -- in Arthur Andersen over the meaning of "corrupt persuasion" in 18 USC 1512(b). (The Court granted cert. in 2004 and rendered judgment in 2005). Unfortunately, the US Supreme Court did not resolve the circuit split over the meaning of "corrupt persuasion" -- did it mean merely to have an "improper purpose" -- as the Second Circuit and Eleventh Circuit have held -- which renders the statutory language superfluous, or is an improper means, such as bribery what is meant by "corrupt"? In Arthur Andersen, the Court did not resolve the circuit split.
As a result, the circuits are still badly split, and the Ninth Circuit joined the split in March 2011 in the Doss case. In Doss, the Ninth Circuit recognized the deep split and sided with the Third Circuit's Farrell decision.
At stake in Norris, is whether there is an ability to remain silent and not provide incriminating information to prosecutors. The case suffered from proof problems at trial. The Antitrust Division never called any witnesses before the grand jury -- so the first problem was that there was no grand jury witness involved. No witnesses were subpoenaed to appear before the grand jury. Further, the Division's witnesses all testified that there was in fact no US price-fixing agreement, so no motive to tamper with grand jury witnesses. The jury acquitted Mr. Norris of the two substantive counts of obstruction of justice via grand jury witness tampering.
However, they convicted Mr. Norris of the inchoate offense of a "conspiracy" to violate 18 USC 1512(b) -- a conspiracy to tamper with grand jury witnesses. This conspiracy allegedly involved meeting notes which were prepared to provide background information to the defense lawyer handling the case. That lawyer independently elected to supply the notes to the Antitrust Division. The Division maintained that the notes were false because no price-fixing was mentioned in the meeting summaries (which also bore a clear attorney client privilege legend). Thus, a key issue is whether the failure of Norris and others to provide incriminating information or to withhold it could possibly violate Section 1512(b), given the Fifth Amendment privilege against self-incrimination. Thus, Norris, a foreign national, was convicted of a thoughtcrime, for being the victim of a misunderstanding of defense materials.
The case -- the Division's first-ever extradition of a foreign national -- is also unusual for the degree of invasion of the attorney-client privilege. The Division chatted up the outside lawyer at an ABA conference, wrote a memo to the file (attached in our Petition) and indicted Mr. Norris. The Division then called that lawyer to the witness stand as its star witness, and later defended the verdict on the basis that a lie to the defense lawyer is tantamount to lying to the grand jury -- its bizarre and dangerous "defense-counsel-as-conduit" theory of liability under the statute. Nothing could be more destructive of the adversary process. The Supreme Court has not handled a serious attorney-client privilege case in many years.