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February 24, 2005

Andersen's opening brief in Supreme Court appeal

Here is Arthur Andersen's opening brief in its appeal to the U.S. Supreme Court of the firm's 2002 criminal conviction in connection with the Enron scandal. The following is an excerpt from the brief's Statement of the Case:

This case arises out of the conviction of Arthur Andersen, LLP ("Andersen") for witness tampering. . .

For more than a century, it had been settled law that destruction of documents prior to the initiation of judicial or agency proceedings is not obstruction of justice. The Government accordingly sought to circumvent the limits on the crime of obstruction by indicting Anderson for "witness tampering" under 18 U.S.C. 1512, which prohibits attempts to "kill," "threaten," or "corruptly persuade" potential witnesses. In the Government's view, it was perfectly lawful for Anderson's employees to comply with the document retention policy themselves, whatever their motive might be, prior to the start of a proceeding. But it was criminal "corrupt persua[sion]" to urge others to comply with the policy if the request was even partially motivated by an intent to "impede the fact-finding ability" of some possible future investigation. . .

That expansive and illogical interpretation of the statutory language criminalizes common conduct undertaken without any consciousness of wrongdoing. . .

Posted by Tom at February 24, 2005 7:05 AM

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