Legal Memorandum on Flawed Jury Instructions

This memorandum has been prepared by Christopher Amelung to provide support for the importance of accurate jury instruction based upon the findings of the case of Arthur Andersen LLP v. United States.

Statement of Facts

The petitioner, Arthur Andersen, was found guilty of violating Sections 1512(b)(2)(A) and (B) from Chapter 73 of Title 18 of the United States Code which states “Whoever knowingly uses intimidation… or corruptly persuades another… to do so… with intent to… cause or induce any person to… withhold testimony… from an official proceeding… shall be fined.” Employees were given frequent reminders to follow the company’s document policy which stressed that documents be shredded within a day. Emphasis was given to follow policy as evidence began pointing towards a likely investigation by the Securities and Exchange Commission.

Questions

Was the jury fully informed to make an accurate assessment of the violation? Should the petitioner have been found guilty? What implicit expansion of power would a confirmed guilty verdict grant the federal government? Could other legal business practices be viewed as criminal simply because of the possibility of future investigation?

Short Answer

The jury was not fully informed and was given a skewed representation of the law. The petitioner should therefore not have been found guilty. Should the court’s decision stand as precedent, the federal government’s power would greatly increase by granting the power to more loosely interpret legal practices as criminal. This practice of altering the law at the bench, however slightly, and influencing the jury could be justification for a multitude of legal practices and exercising of personal rights to be criminal in the light of potential future litigation.

Discussion and Analysis

The jury initially delivered an Allen charge (Allen v. United States, 164 U.S. 492 (1896)) because it was unable to come to a unanimous conclusion. The conflicted jury was likely a cause of the conflicting instructions handed to the jury. The instructions handed to the jury “diluted the meaning of ‘corruptly’ such that it covered innocent conduct” and informed that jury that “even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict.” These instructions clearly do far more than explain the law, they change the law. While the law itself clearly states that one must “knowingly” and “corruptly” attempt to persuade others, the instructions given essentially rewrite the law to say that any action which could later be interpreted to have been a hindrance to an official proceeding, even in good faith and if legal, is criminal.

Persuading someone with the intent to have them withhold testimony is not inherently criminal. The example is given of “a wife who persuades her husband not to disclose marital confidences (Trammel v. United States, 445 U. S. 40 (1980).” There, the wife was persuading the husband with the intent to withhold testimony, yet she was within her rights. “A ‘knowingly … corrup[t] persuade[r]’ 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.” These instructions were “flawed in important respects” and the jury’s decision was based not upon the law, but upon a flawed instruction of the law, and its decision should be nullified.

This makes the flaw within the instructions grave indeed, for the false interpretation of the instructions effectively gives the judicial powers the authority to legislate from the bench and extends the power of the federal government to easily deem personal freedoms and rights such as a citizen’s “right against compelled self-incrimination” in the 5^th Amendment to be criminal. An attorney is also justified in advising his client “in withholding documents that were covered by the attorney-client privilege (Upjohn Co. v. United States, 449 U. S. 383 (1981).” The findings of this court would imply that the attorney acted criminally in rightfully advising his client.

The courts “have traditionally exercised restraint in assessing the reach of a federal criminal statute (Dowling v. United States, 473 U. S. 207 (1985)” and with good reason. By here expanding the reach of this statute (as well as falsely interpreting it), the reach of the federal government itself impedes upon the guaranteed rights of the Constitution.

Conclusion

The instructions given to the jury were clearly flawed. They were deliberately altered and instructed the jury to declare a guilty verdict without all requirements of the law being fulfilled. This decision, if not reversed, would grant a limited power to legislate to the judicial branch and would potentially place the personal freedoms and rights guaranteed in the Constitution under fire while simultaneously increasing the power of the federal government.