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Tuesday, May 31, 2005

Arthur Andersen's Corrupt Instruction

In Arthur Andersen LLP v. U.S., No. 04-368 (May 31, 2005), the Supreme Court reversed Andersen’s conviction for violating 18 U.S.C. § 1512(b)(2)(A), which criminalizes "knowingly" persuading another person "corruptly" to withhold or alter documents for use in an official proceeding. Andersen employees destroyed documents pursuant to a document retention policy while an SEC investigation was getting under way.
The Court held that the jury instruction failed to convey the "corrupt persuasion" element of the offense. The Court noted the need to give this element a narrow meaning, noting that the mere persuasion of someone to withhold a document from a government proceeding is not inherently malign. The Court noted that the term "knowingly" applied to the phrase "corruptly persuades," and that accordingly only persons conscious of wrongdoing could be said to "knowingly . . corruptly persuade."
The words of the jury instruction failed to convey this meaning. The district court instructed the jury, at the government’s insistence and over the defendant’s objection, that the "knowingly" element of the offense would be satisfied if the evidence showed an intent to "impede" an investigation. But to "impede" encompasses conduct which is not "corrupt." The use of the word "impede" meant that the word "corruptly" word in the statute provided no limit on convicting a person merely because he withheld information from the government.
Further, citing U.S. v. Aguilar, the government noted that the impeded proceeding had to be foreseen. "A ‘knowingly corrupt persuader’ cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material."