The New York Times

January 8, 2005

Supreme Court Will Review Conviction of Arthur Andersen

By LINDA GREENHOUSE
 

 

WASHINGTON, Jan. 7 - The Supreme Court announced on Friday that it would review the criminal conviction that drove Arthur Andersen, the once-prominent accounting firm, out of business.

Over the objections of the Justice Department, the court will consider whether Andersen's prosecution for obstruction of justice - growing out of its extensive shredding of documents related to its major client, Enron - was a proper application of the federal witness-tampering statute, which the firm was charged with violating.

Andersen, which lost its case before a jury in Houston in 2002 and again last year before the federal appeals court in New Orleans, was supported in its Supreme Court appeal by an unusually broad coalition.

Both the United States Chamber of Commerce and the National Association of Criminal Defense Lawyers urged the justices to overturn the conviction, arguing that the government had used a vaguely worded statute in a way that threatened to criminalize the ordinary behavior of executives and defense lawyers.

When Anderson filed the appeal in September, the Justice Department waived its right to respond, an action that usually indicates the government considers an appeal to be frivolous or inconsequential.

The court obviously took a different view, first directing the solicitor general's office to file a brief and then granting Andersen's appeal at the earliest opportunity.

The case will be argued in April and decided before the current term ends in early summer.

Andersen was convicted of violating a 1988 federal law, a part of the Victim and Witness Protection Act that makes it a crime if a person "corruptly persuades" someone else to "alter, destroy, mutilate, or conceal" a document or other object, with the intent to make it unavailable "for use in an official proceeding." The focus of the appeal is on the meaning of the word "corruptly."

At the trial, the judge instructed the jury that "corruptly" meant "having an improper purpose," namely "an intent to subvert, undermine or impede the fact-finding ability of an official proceeding." The jury was told that the government did not have to prove that the defendant knew its conduct was illegal.

Andersen's lawyers objected to the instruction, and on appeal argued that "corruptly" had to mean "at least conscious wrongdoing." The instruction the jury received was "circular," the firm's brief told the Supreme Court, because defining "corruptly" as having an "improper purpose" adds nothing to the statute's prohibition of an intent to make a document unavailable.

The definitional issue has divided the federal appeals courts.

The jury struggled with the case, deliberating for seven days and pronouncing itself deadlocked. The judge then sent the jurors back for further deliberations, and they returned with the guilty verdict after another three days.

The events that led to the prosecution and conviction took place over four weeks in the fall of 2001, as Enron was collapsing under the revelation of huge accounting shortfalls and as the Securities and Exchange Commission was closing in on both the energy company and its accountant.

An Andersen lawyer, Nancy Temple, advised employees to follow the firm's "documentation and retention policy," which called for the regular destruction of drafts, notes and other material not necessary to document a final audit opinion. The S.E.C. had not yet opened a formal proceeding or requested any material from Andersen.

Extensive shredding of documents and deletion of e-mail messages followed, lasting until Nov. 9, the day after the S.E.C. served Andersen with a subpoena for documents relating to Enron.

The firm argued unsuccessfully that shredding during this presubpoena period was lawful. Ms. Temple was never indicted. An Andersen partner, David B. Duncan, who was the lead accountant on the Enron team, pleaded guilty to obstruction of justice, and the firm itself was put on trial.

After its conviction, in June 2002, it shut down its public accounting business. It now has about 200 employees, down from 28,000, many of them lawyers dealing with the fallout from Enron and other legal issues.

An Andersen spokesman, Patrick Dorton, said on Friday that the firm was "pleased that the Supreme Court has agreed to consider its case, given the importance of the legal issues and the potential impact on businesses and individuals in the United States."