Sunday, June 5, 2005
The reversal by the Supreme Court of the conviction against Arthur Andersen should have those with recent section 1512 convictions checking the jury instructions to see if they match the instructions given in the Andersen case. (see more here and here) Not surprisingly, Frank Quattrone appears to be the first in line. (Bloomberg News reports here)
If the instruction in Quattrone's case, with regard to the section 1512 count, matches the Andersen instruction, relief would seem to be warranted as the matter is pending on appeal and the issue is being raised now. Frank Quattrone's indictment here also has two other counts, one for a section 1503 violation and one for a 1505 violation (both obstruction of justice statutes). These may not be affected by this decision, as the Court in Andersen stated in footnote nine of the decision that:
"The parties have pointed us to two other obstruction provisions, 18 U.S.C. ss 1503 and 1505, which contain the word 'corruptly.' But these provisions lack the modifier 'knowingly' making any analogy inexact."
Does Quattrone get a new trial based upon this one count perhaps being improper? Not to pre-judge the judicial ruling here, it raises some interesting questions. Clearly that particular count is in jeopardy. And the question may be whether this tainted the rest of the trial? Was there a spillover effect that caused evidence to be admitted that would not have been admitted, but for this count?
The Court in Andersen did not use a harmless error analysis which also strengthens the position taken in the Quattrone case. But I will leave it for the judiciary to make this decision -- but you can bet we will probably comment on whatever that decision turns out to be.
With everyone reexamining obstruction cases premised on 1512, the government should be asking whether it is worth it to take a shortcut (charge obstruction) as opposed to investigating a case fully before indicting.