Law School Case Brief
Arthur Andersen LLP v. United States - 544 U.S. 696, 125 S. Ct. 2129 (2005)
18 U.S.C.S. § 1512(b) punishes not just "corruptly persuading" another, but "knowingly corruptly persuading" another. The statute provides the mens rea -- "knowingly" -- and then a list of acts -- uses intimidation or physical force, threatens, or corruptly persuades. The mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. The court must simply interpret the statute as written.
As Enron Corporation's financial difficulties became public, petitioner Arthur Andersen LLP, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. Petitioner was indicted under 18 U.S.C. §§ 1512(b)(2)(A) and (B), which make it a crime to "knowingly . . . corruptly persuade another person . . . with intent to . . . cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding." The jury returned a guilty verdict, and the United States Court of Appeals for the Fifth Circuit affirmed the judgment of the district court, holding that the jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding" in § 1512(b); that the jury need not find any consciousness of wrongdoing in order to convict; and that there was no reversible error. Petitioner sought review.
Did the jury instructions fail to convey properly the elements of "knowingly" and "corrupt persuasion" under 18 U.S.C.S. § 1512(b)(2)(A), (B)?
The Supreme Court of the United States reversed the judgment of the court of appeals. The jury instructions failed to properly convey the elements of a "corrup[t] persua[sion]" conviction under 18 U.S.C.S. § 1512(b). Only one conscious of wrongdoing could "knowingly corruptly persuade" under 18 U.S.C.S. § 1512(b)(2)(A), (B) (amended), and where a jury was told to convict even if petitioner Arthur Andersen honestly believed its conduct under a document retention policy was lawful, it failed to convey a required consciousness of wrongdoing. The instructions also diluted the meaning of "corruptly" by telling the jury to convict if it found the firm intended, by suggesting that employees enforce a document retention policy, to "subvert, undermine, or impede" governmental factfinding. Excluding "dishonestly" and adding "impede" to "subvert or undermine" was significant. As to such innocent conduct, the "corruptly" instructions did no limiting work at all. The instructions also eliminated the required nexus between a "persuasion" to destroy documents and any particular proceeding. A "knowingly corrupt persuader" could not be one who persuaded others to shred documents under a document retention policy when he did not contemplate any particular official proceeding in which the documents could be material.
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