Government's Response to Andersen's Petition for Cert

The November 5th entry talked about the Petition for Certiorari filed by the defense in Arthur Andersen LLP v. United States.  The government has since filed a brief in opposition, breaking down the defense's one issue into five separate issues and claiming that two of the five issues were not raised by the defense in the court below.

The Court, if they accept this case, will have to determine what is the appropriate line between a  valid document retention policy and corrupt behavior that merits obstruction of justice charges, and the instructions of law that should accompany charges of obstruction of justice.

The statute involved in this case is 1512 (b), but the statute has been amended since this decision and section 1519 has been added to the obstruction statutes, allowing document destruction cases to be prosecuted without proof of corrupt persuasion.   Prosecutors in the Andersen case did not have the benefit of the new language in the existing statute and as such were forced to bring this action claiming that individuals "corruptly persuaded" others to destroy documents.  The government in its response to the Petition for Certiorari filed by Andersen argues that because of the addition of section 1519 to the obstruction statutes, the case is one "of little continuing practical importance." Whether this response by the government will be successful considering the high profile nature of the Andersen indictment and trial, remains to be seen.

This is not the first time the term "corruptly" as used in an obstruction statute is a key issue in a case.  In the case of United States v. Poindexter, the D.C. Cir. found the phrase "corruptly influences" to be unconstitutionally vague and reversed the conviction.  Congress responded to this decision by adding a definition section to section 1515, the definitions statute for the obstruction statutes, that defined "corruptly" for purposes of section 1505.  But the Andersen case proceeded under section 1512 and not section 1505.   The government in its response to Anderson's Petition for Certiorari states that "to the extent it is relevant at all, Poindexter and the ensuing events provide further evidence of Congress's intent that, in the context of the obstruction of justice statutes, corruptly should mean acting with an improper purpose."

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Addendum - Thanks to Mike for letting us know that there is a copy of the brief available at this site - http://www.usdoj.gov/osg/briefs/2004/0responses/2004-0368.resp.html