Friday, November 5, 2004
On September 14, 2004, a Petition for Certiorari (2004 WL 2070872) was filed by Arthur Andersen, LLP requesting the Supreme Court grant review of its case and conviction. The sole issue before the Court is:
"Whether Arthur Andersen LLP's conviction for witness tampering under 18 U.S.C. § 1512(b) must be reversed because the jury instructions upheld by the Fifth Circuit misinterpreted the elements of the offense, in conflict with decisions of this Court and the Courts of Appeals for the First, Third, and D.C. Circuits."
The Petition raises a fascinating question as the Indictment in Andersen charged the company with "knowingly, intentionally and corruptly persuade and attempt to persuade other persons." The Petitioners argue two deficiencies in the instructions:
1. First they contest the court’s instructing the jury on what the term "corruptly persuades" means. “Andersen repeatedly objected to the court's determination that ‘corrupt’ persuasion could be equated with an ‘improper purpose,’ and argued that the term requires proof of improper means of persuasion or inducement to unlawful acts, or at least conscious wrongdoing.”
2. Second they contest the court’s denial of an instruction that would have “ensure[d] that the jury would be required to find a close nexus between an employee's reminder to follow the document retention policy and any future SEC proceeding. . . . The district court instead instructed the jury that the Government did not have to prove that the "corrupt persuader" had any particular proceeding in mind or knew that a future subpoena was likely.”
This case raises serious questions of the line between valid document retention policies and corrupt behavior that merits obstruction of justice charges.