May 31, 2005
The Andersen Opinion
Posted by Gordon Smith

The Supreme Court's reversal of Andersen was unanimous, and the opinion is here. Although this was the result that everyone expected after the oral argument, I find the court's reasoning unpersuasive. It is a relatively short opinion, and here is a quick critique.

Remember that this case is about the interpretation of 18 U.S.C. 1512(b)(2), which provides in relevant part:

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 ... cause or induce any person to (A) ... withhold a record, document, or other object, from an official proceeding; [or] (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 Court observed the distinction between persuading someone to withhold testimony or documents and corruptly persuading someone to do the same. Simply persuading someone is entirely legal, but corruptly persuading someone appears to be a violation of the statute. The parties certainly thought so, and focused on the word "corruptly." According to the lower court opinion, "The word 'corruptly' means having an improper purpose. An improper purpose, for this case, is an intent to subvert, undermine, or impede the fact-finding ability of an official proceeding."

The Supreme Court sort of brushes all of this to the side, reasoning that the key word is not "corruptly," but "knowingly." According to the Court,

Section 1512(b) punishes not just "“corruptly persuad[ing]"” another, but "“knowingly . . . corruptly persuad[ing]"” another. (Emphasis added.) The Government suggests that “knowingly” does not modify “corruptly persuades,” but that is not how the statute most naturally reads.

I don't know about you, but that does not seem the "natural" reading of that statute. According to the Court, the natural reading of this statute has an adverb ("knowingly") modifying several verbs -- "uses," "threatens," and "engages" -- and one adverb ("corruptly"). So the question isn't whether the defendant knowingly persuades and corruptly persuades, but whether the defendant knowingly corruptly persuades. Sort of like very corruptly persuades, I suppose. This is silly, and even the Court seems to recognize it, but we can always blame silliness on Congress:

The Government suggests that it is “questionable whether Congress would employ such an inelegant formulation as ‘knowingly . . . corruptly persuades.’ ” Brief for United States 35, n. 18. Long experience has not taught us to share the Government’s doubts on this score, and we must simply interpret the statute as written.

The implication of the Court's strained reading is that corruptly persuading someone is not enough. The defendant much knowingly corruptly persuade. And what does unknowingly corrupt persuasion look like? According to the Court,

"“[K]nowledge”" and "“knowingly”" are normally associated with awareness, understanding, or consciousness. See Black’s Law Dictionary 888 (8th ed. 2004) (hereinafter
Black’s); Webster’s Third New International Dictionary 1252–-1253 (1993) (hereinafter Webster’s 3d); American Heritage Dictionary of the English Language 725 (1981)
(hereinafter Am. Hert.). "“Corrupt”" and "“corruptly”" are normally associated with wrongful, immoral, depraved, or evil. See Black’s 371; Webster’s 3d 512; Am. Hert. 299–-300. Joining these meanings together here makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to "“knowingly . . . corruptly persuad[e].”"

The strangest thing about this case is that this bizarre reading of the statute was completely unnecessary. Everyone else was focused on the meaning of "corruptly," and the Court was mainly concerned that the jury instruction did not require a dishonest act.("No longer was any type
of '“dishonest[y]'” necessary to a finding of guilt, and it was enough for petitioner to have simply '“impede[d]'” the Government'’s factfinding ability.") It seems to me that the Court easily could have reached that result without pulling in the word "knowingly."

Finally, the Court objected to the lack of required nexus between the "persuasion" and any particular proceeding. The trouble was not that an SEC investigation is not an "official proceeding," but that the jury instructions did not seem to require that any particular prodeeding be foreseen at the time of the persuasion. It is not clear what the Court was reading (i.e., they don't quote the jury instructions), but the jury instructions quoted at the Fifth Circuit included this:

"The government need prove only that Andersen acted corruptly and with the intent to withhold an object or impair an object's availability for use in an official proceeding, that is, a regulatory proceeding or investigation whether or not that proceeding had begun or whether or not a subpoena had been served."

This instruction is influenced by the statute, which specifically provides that the official proceeding "“need not be pending or about to be instituted at the time of the offense." Andersen wanted an instruction that the proceeding was "ongoing or ... scheduled to be commenced in the future," but that seems more than the statute requires. The Supreme Court states:

A "“knowingly . . . corrup[t] persaude[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.

The bottom line is that the defendant cannot be convicted for "knowingly corruptly persuading" someone to destroy documents, unless they are imagining a "particular official proceeding" in which those documents might be used. Of course, there was substantial evidence in this case that Andersen imagined exactly the official proceeding that ultimately occurred, but the jury instruction apparently was not clear enough on the required nexus.

UPDATE: Larry Ribstein responds to my post: "If you’re going to get a criminal conviction, you need to prove that the act was done knowingly.  If the problem with the act is that it was 'corrupt,' that has to be knowing too.  Of course that’s awkward, but the Court can’t do anything about the way the statute was written."

If the point is that crimes must have mens rea, I agree. But, as I wrote, I believe that the Court could have come to that result through the word "corruptly," without using the word "knowingly." Courts do exactly that when interpreting U.S.C. §§1503 and 1505, both of which use the word "corruptly" without "knowingly" anywhere in the vicinity.

If the point is that the plain language of the statute requires the Court's reading ("the Court can’t do anything about the way the statute was written"), I strongly disagree. Indeed, my post was inspired partly by my disgust at the Court's attempt to suggest that the plain language of the statute demands the use of "knowingly ... corruptly persuades." The Court should have done more than asserting that such a reading is obvious from the text. A good start would have been to deal with the lower court's more careful parsing of the statute.

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