Jury Instructions: Arthur Andersen LLP v. United States
CRS Report for Congress
Jury Instructions: Arthur Andersen LLP v.
United States
Michael V. Seitzinger
Legislative Attorney
American Law Division
Summary
On May 31, 2005, the United States Supreme Court issued its decision in Arthur
Andersen LLP v. United States, a case concerning disputed jury instructions as to the
meaning of a “corrupt persuasion” conviction under 18 U.S.C. section 1512(b). The
case was appealed from the Fifth Circuit, which had held that jury instructions issued
by the District Court accurately conveyed the meaning of the statutory terms “corruptly
persuades” and “official proceeding” and that the jury did not need to find any
consciousness of wrongdoing. The Supreme Court reversed, holding that the term at
issue could apply only to persons conscious of wrongdoing and that there must be a
nexus between the action and the particular proceeding.
On May 31, 2005, the United States Supreme Court issued its decision in Arthur
Andersen LLP v. United States,1 a case concerning disputed jury instructions as to the
meaning of a “corrupt persuasion” conviction under 18 U.S.C. section 1512(b).
In 2001, when Enron’s financial difficulties were made known, Arthur Andersen
LLP, Enron’s auditor, instructed its employees to destroy documents according to its
document retention policy. Significant destruction of paper and electronic documents
occurred. When the Securities and Exchange Commission opened a formal investigation
of Enron, it requested accounting documents.
In March 2002 Arthur Andersen LLP was indicted in the Southern District of Texas
on one count of violating 18 U.S.C. sections 1512(b)(2)(A) and (B), which state:
Whoever knowingly uses intimidation, threatens, or corruptly persuades another
person, or attempts to do so, or engages in misleading conduct toward another person,
with intent to —
(2) cause or induce any person to —
1 No. 04-368.
Congressional Research Service ˜ The Library of Congress
(A) withhold testimony, or withhold a record, document, or
other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to
impair the object’s integrity or availability for use in an official
proceeding
shall be fined under this title or imprisoned not more than ten years, or both.
The jury deliberated for seven days and declared that it was deadlocked. The District
Court then delivered an Allen charge;2 the jury deliberated for three more days and then
returned a guilty verdict.
The Court of Appeals for the Fifth Circuit affirmed,3 holding that the jury
instructions accurately conveyed the meaning of the statutory terms “corruptly persuades”
and “official proceeding”; that the jury did not need to find any consciousness of
wrongdoing; and that there was no reversible error. The Supreme Court granted certiorari4
because of a split of authority concerning the meaning of section 1512(b).
The Supreme Court unanimously reversed the Fifth Circuit decision. The Court
looked at the plain meaning of “knowingly...corruptly persuades” in the context of the
statute and found that the term could apply only to persons conscious of wrongdoing.
And limiting criminality to persuaders conscious of their wrongdoing sensibly allows
§ 1512(b) to reach only those with the level of “culpability...we usually require in5
order to impose criminal liability” [citations omitted].
The Court went on to criticize the lack of guidance given by the jury instructions.
Indeed, it is striking how little culpability the instructions required. For example, the
jury was told that, “even if [petitioner] honestly and sincerely believed that its conduct
was lawful, you may find [petitioner] guilty.... The instructions also diluted the6
meaning of “corruptly” so that it covered innocent conduct.
The Court stated that the jury instructions were inappropriate for a second reason.
The instructions led the jury to believe that it did not have to find any nexus between the
persuasion to destroy documents and any particular proceeding. Instead, according to the
Court, it had held in earlier cases that there must be a nexus between the obstructive act
and the proceeding. Otherwise, if the defendant does not have knowledge that his actions
are likely to affect the judicial proceeding, the defendant will lack the required intent to
obstruct.
2 Allen v. United States, 164 U.S. 492 (1896).
3 United States v. Arthur Andersen LLP, 374 F.3d 281(5th Cir. 2004).
4 125 S.Ct. 823 (Jan. 7, 2005).
5 No. 04-368 2005 USSC LEXIS, at 5.
6 Id.