Amicus Curiae Brief — Arthur Andersen LLP v. United States

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| FEB 2 2 2005

No. 04-368 | |

ECI PRK |

IN THE

Supreme Court of the United States

Supreme Court, US

FILED

ARTHUR ANDERSEN LLP,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE

WASHINGTON LEGAL FOUNDATION

AND CHAMBER OF COMMERCE

OF THE UNITED STATES

IN SUPPORT OF PETITIONER

DANIEL J. POPEO CARTER G. PHILLIPS

PAUL D. KAMENAR VIRGINIA A. SEITZ*

WASHINGTON LEGAL EAMON P. JOYCE

FOUNDATION SIDLEY AUSTIN BROWN &

2009 Massachusetts WOOD LLP

Avenue, N.W. 1501 K Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20005

(202) 588-0302 (202) 736-8000

Counsel for Amici Curiae

February 22, 2005 * Counsel of Record

LE TEE

WILSON-EPES PRINTING COo., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

TABLE OF CONTENTS

FEUD TS conccseccsscssensesssecsscsninseneessenseneensennenueneqncessess

I. THE DECISION BELOW SUBVERTS THE

PERDUE GEE” EAIEIS © cxvecesserscssccssscssenesensenntesssscsessneces

A. The Rule Of Lenity Is A Vital Tool for

Construction of Ambiguous Criminal Statutes...

B. Because § 1512(b) Is Ambiguous, The Rule Of

SAE GIO cncncstncserssnnsestmepmesmsmenseenenans

C. The Application Of The Rule Of Lenity In

This Case Fully Serves Its Important Purposes

And The Administration Of Justice................+.

II. SECTION 1512(b) SHOULD NOT BE INTER-

- PRETED TO CRIMINALIZE CONDUCT THAT

A REASONABLE PERSON WOULD NOT

UNDERSTAND TO BE CRIMINAL...............00008

A. Ignorance Of The Law Does Excuse Crimes

That Are Mala Prohibitum Where Knowledge

Of The Law Is An Element Of The Crime .........

B. Section 1512(b)’s Mens Rea Elements Should

Be Interpreted To Require The Prosecution To

Prove That A Defendant Knows Its Conduct Is

Tet iiniecnsinnediidaitehianicauiiiiiinmnaaiadeaspiabinimastindmeciainins

Ill. THE DECISION BELOW HAS SUBSTANTIAL

DAMAGING IMPLICATIONS FOR’ THE

ECONOMY AND INDIVIDUALS .............cccecseees

(i)

TABLE OF CONTENTS -— continued

A. The Decision Below Criminalizes Supervision

Of Legal Conduct And Creates Uncertainty

ANd InefFICIONCY ........crccccccccscceesosssscscssosessoossoosse

B. The Conviction Of Andersen And Others

Under Amorphous Standards Inflicts Signifi-

cant Damage On The EcOnomy.........:sseeeeeeeees

CONCLUSION .........ccscccrcoorossesessesccsscssssssossssossssossoseseses

iii

TABLE OF AUTHORITIES

CASES Page

Almendarez-Torres v. United States, 523 U.S.

Ee 8

Bailey v. United States, 516 U.S. 137 (1995).......... 15

Barlow v. United States, 32 U.S. (7 Pet.) 404

ES 18, 19

Bell v. United States, 349 U.S. 81 (1955) ............... 7

Bousley v. United States, 523 U.S. 614 (1998)....... 15

Bryan v. United States, 524 U.S. 184 (1998).. 14, 15, 23

Cheek v. United States, 498 U.S. 192 (1991)........ 19, 22

Clark v. Suarez Martinez, 125 S. Ct. 716 (2005)... 7

Hanousek v. United States, 528 U.S. 1102

EE ee 20

Kolender v. Lawson, 461 U.S. 352 (1983).............. 7

Ladner v. United States, 358 U.S. 169 (1958) ........ 7

Liparota v. United States, 471 U.S. 419 (1985).... 17, 22

McBoyle v. United States, 283 U.S. 25 (1931)........ 8

McNally v. United States, 483 U.S. 350 (1987)...... 6, 12

Morissette v. United States, 342 U.S. 246

EET 16, 20, 21

Moskal v. United States, 498 U.S. 103 (1990)........ )

Ratzlaf v. United States, 510 U.S. 135 (1994) ........ 4, 17,

20, 22

Scheidler v. National Org. for Women, Inc., 537

Ee 8

Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57

EEE 16, 19

Smith v. Wade, 461 U.S. 30 (1983) ..........ccccccceceeeees 23

Staples v. United States, 511 U.S. 600 (1994) ...... 17, 21,

23, 24

United States v. Balint, 258 U.S. 250 (1922)........... 19

United States v. Bass, 404 U.S. 336 (1971) ......... 7, 8,14

United States v. Davis, 183 F.3d 231 (3d Cir.),

amended by 197 F.3d 662 (3d Cir. 1999)............ 11

. Iv

TABLE OF AUTHORITIES — continued

STATUTES

Page

United States v. Farrell, 126 F.3d 484 (3d Cir.

DTU cccrtennenemannsstimteinsniettaicanepeiesiiainaieaiammaiaibimmstiiaiaes 10, 11

United States v. Freed, 401 U.S. 601 (1971)......... 18, 19

United States v. Granderson, 511 U.S. 39

CF i ctccncanerccanemiesemnnsemmensumeeniieimnmnabaiannaieaniiens )

United States v. International Minerals & Cherm.

Corp... 02 U.S. SSB (1971) nccccccccesccsscccsscccssccsssees 19

United States v. Khatami, 280 F.3d 907 (9th Cir.

TTT ccisscsietitencmremidinemmataiaiiainaaasiaiieaiataiasamaniataiaeainalidsitiiaiaiaaaias 5

United States v. Kozminski, 487 U.S. 931

secsinainiianiaidaduniadiagaatie 3,8

United States v. Lacher, 134 U.S. 624 (1890) ........ 7

United States v. Pennington, 168 F.3d 1060 (8th

GR. Fee ccncssesmenssenenemsemenesemenenenneniene 5

United States v. Poindexter, 951 F.2d 369

CURIE ccarresesenenennsnnniessstiaiatieeataaiaimasieiiinialeiiaaients 1]

United States v. R.L.C., 503 U.S. 291 (1992) .........

United States v. Shotts, 145 F.3d 1289 (11th Cir.

Se 12

United States v. Thompson, 76 F.3d 442 (2d Cir.

a 12

United States v. Thompson/Center Arms Co., 504

S, See Ce cnccnmensssmntsncsememmennemeeaen 17

United States v. U.S. Gypsum, Co., 438 U.S. 422

Cri cnccrmeseensinatanamneninatnapentgemiimneniesieiniaiiiata 19, 20

United States v. Wiltberger, 18 U.S. (5 Wheat.)

OO 6,7

United States v. X-Citement Video, Inc., 513 U.S.

ET 21

OSS 25

Te FE nntsensentnnteupenianspensnsmenenmnenasins 11,13

TABLE OF AUTHORITIES — continued

LEGISLATIVE HISTORY

H.R. Rep. No. 100-169 (1987) .............ccccssceseseeseees

134 Cong. Rec. 32701 (1988) .........ccccceeseeeeseeeeees

SCHOLARLY AUTHORITIES

ABI Roundtable Discussion, Remember When —

Recollections of a Time When Aggressive

Accounting, Special Purpose Vehicles, Asset

Light Companies and Executive Stock Options

Were Positive Attributes, 11 Am. Bankr. Inst.

ee GR, © GEIR nnccrsnnenssnnnnssnmcsnmnsneenesmennesnmennes

| William Blackstone, Commentaries...................+.

Vera Bolgar, The Present Function of the Maxim

Ignorantia Juris Neminem Excusa — A Com-

parative Study, 52 lowa L. Rev. 626 (1967)........

Christopher R. Chase, To Shred or Not to Shred:

Document Retention Policies and Federal

Obstruction of Justice Statutes, 8 Fordham J.

Camp. & Fam. L.. 720 (AGED P ccccscesscsssescscsscssscesevees 24, 26

Gary G. Grindler & Jason A. Jones, Please Step

Away from the Shredder and the “Delete” Key

§§ 802 and 1002 of the Sarbanes-Oxley Act, 41

Am. Crim. L. Rev. 67 (2004).........ccccccceeeceeeeeeeeees

Henry M. Hart, Jr., The Aims of the Criminal

Law, 23 Law & Contemp. Probs. 401 (1958)......

Joseph E. Kennedy, Making the Crime Fit the

Punishment, 51 Emory L.J. 753 (2002)...............

Steven Lubet, Document Desiruction After Arthur

Andersen: Is It Still Housekeeping or Is It A

Crime?, 4 J. App. Prac. & Process 323 (2002)....

Sarah Newland, Note, The Mercy of Scalia:

Statutory Construction and the Rule of Lenity,

29 Harv. C.R.-C.L. L. Rev. 197 (1994)...............

Francis B. Sayre, Public Welfare Offenses, 33

CREE, Bn GRID. SS CRD cnsensensscsssensscsseneesmmscsees

TABLE OF AUTHORITIES -— continued

Page

Lawrence M. Solan, Statutory Inflation and

Institutional Choice, 44 Wm. & Mary L. Rev.

ye Le 13

John Shepard Wiley, Jr., Not Guilty By Reason of

Blamelessness: Culpability in Federal Criminal

Interpretation, 85 Va. L. Rev. 1021 (1999)......... 20, 23

OTHER AUTHORITIES

Black's Law Dictionary (8th ed. 2004) ...........00000++ 16

Model Penal Code (Tent. Draft No. 4, 1955).......... 18

Stephen Gillers, The Flaw In The Andersen

Verdict, N.Y. Times, June 18, 2002...........0c00000+ 26

Steven R. Schoenfeld & Rosena P. Rasalingam,

Document Retention Policies Have Long-Term

Benefits, N.Y .L.J., Nov. 18, 2002. .........cccceceeeeees 24, 26

Jeffrey Toobin, End Run at Enron: Why the

Country's Most Notorious Executives May

Never Face Criminal Charges, New Yorker,

ee OEE 28

INTEREST OF AMICI CURIAE

The Washington Legal Foundation (“WLF’”) is a national

non-profit public interest law and policy center. WLF

devotes substantial resources to litigating cases and filing

amicus briefs urging rules of law that promote free enterprise

and limit government to make it more accountable in all

contexts, including criminal law enforcement actions by the

Department of Justice. WLF has participated as amicus in

numerous cases which, like the present one, raise important

issues regarding mens rea requirements in federal criminal

statutes.’

The Chamber of Commerce of the United States (“the

Chamber”) is the world’s largest business federation,

representing an underlying membership of more than three

million companies and professional organizations of all sizes

and in all industries. The Chamber advocates the interests of

its members in matters before the courts, Congress, and the

Executive Branch. To that end, the Chamber regularly files

amicus briefs in cases that raise issues of vital concern to the

nation's business community. The potential criminalization of

corporate compliance with document retention policies and

with the advice of in-house attorneys concerns the Chamber

and many of its members. The broad interpretation of vague,

ambiguous criminal statutes to encompass such conduct does

not provide the business community with the guidance it

needs to comply with the law on the obstruction of justice.

Amici and their members believe that the Court will benefit

from their insight in construing the obstruction of justice

statute at issue in this case.

' Letters of consent have been filed with the Clerk. Pursuant to Rule

37.6, amici state that no counsel for a party authored any part of this brief,

and no person or entity other than amici and their counsel made a

monetary contribution to the preparation or submission of this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT

In this case, the government charged Arthur Andersen &

Co. (“Andersen”) with the willful obstruction of justice

because Andersen employees, including an in-house lawyer,

requested that other employees comply with the Company's

legal document retention policy and because an in-house

lawyer advised an employee to edit a draft of a memorandum.

These events occurred at a time when a formal investigation

by the Securities Exchange Commission (“SEC”) was

possible but far from certain. That charge and ultimate

conviction devastated Andersen. Andersen’s elimination

from the already concentrated field of national accounting

firms resulted in the loss of tens of thousands of jobs and

caused untold anguish to thousands of individuals. adversely

affected by this prosecution. While enforcement of the

criminal law often has overwhelming consequences for

affected persons and industries, its predicate must be a

legislative judgment that specified conduct is plainly

unlawful. This predicate was not satisfied by the

interpretation of the obstruction of justice statute advanced by

the United States and embraced by the Fifth Circuit.

The witness tampering statute was amended in 1990 to add

the criminal prohibition at issue here. Section 1512(b) of

Title 18 criminalizes the knowing, corrupt persuasion of

another person to destroy documents with an intent to impair

the documents’ availability for use in an official proceeding.

Although the Fifth Circuit recognized that its interpretation of

§ 1512(b) cast only a “dim light... upon its meaning, its

circularity aside,” App. 19a, that court nonetheless said that a

conviction under this provision simply for persuading another

to take a legal action with an improper purpose is permissible.

Equating knowing, corrupt persuasion with persuasion for an

improper purpose not only results in a statute that is

impermissibly vague, but also renders the corruption

requirement mere surplusage. Section 1512(b)(2)(B) already

expressly requires that the persuasion be intended for the

improper purpose of impairing an official proceeding.

Section 1512(b)’s element of knowing, corrupt persuasion

should have been interpreted to require that the persuasion

was done using an illicit method or that the persuasion

involved inducing another to engage in unlawful conduct or

that the defendant otherwise knew that the persuasion was

unlawful.

The Fifth Circuit’s decision is not simply wrong in its

particulars. It reflects a fundamental misunderstanding of the

governing rules of statutory interpretation for criminal laws.

Because §1512(b) is a criminal statute, under our

Constitution, it must be interpreted to provide persons with

reasonably clear guidance and notice about what conduct falls

within the statute’s sweep. See United States v. Kozminski,

487 U.S. 931 (1988). Here, the generic problem arising from

enforcement of a vague criminal law is exacerbated by the

fact that § 1512(b) has been interpreted to criminalize a non-

coercive request to an employee to comply with a company’s

lawful document retention policy and an in-house lawyer’s

recommendations with respect to editing a memorandum.

Thus, the federal government purports to criminalize conduct

that is part of numerous businesses’ everyday routine and that

was undertaken without requiring the jury to find any

consciousness of wrongdoing. The high profile of this case

and the destructive consequences of the conviction together

have cast a pall over the administration of routine document

retention policies and the conveyance of appropriate legal

advice.

Petitioner Andersen clearly explains why the Fifth Circuit’s

interpretation of § 1512(b) cannot be sustained based on the

text, legislative history and purposes of § 1512(b). No

purpose would be served by revisiting those points here. In

this brief, accordingly, Amici focus on the rules of

construction governing criminal statutes and their proper role

in this case.

First, the rule of lenity resolves the interpretation of

ambiguous criminal law statutes in favor of their strict

construction. Had that rule been applied to § 1512(b), it

would have prevented the fundamentally unfair consequence

of the imposition of criminal penalties on Andersen without

adequate notice that its conduct was criminal. As this case

reflects, the failure to use the rule of lenity to resolve

ambiguity concerning a criminal law not only leads to the

misinterpretation of criminal statutes and inadequate notice in

the rules governing conduct that results in moral

condemnation and punishment, but also impedes the

administration of justice. Although conflicting interpretations

of federal criminal laws may eventually be resolved by this

Court; that resolution often gives rise to issues of retroactivity

and the applicability of the new rules in habeas proceedings

that significantly burden the already overloaded courts.

Second, Amici show that the Fifth Circuit’s interpretation of

the multiple mens rea requirements of § 1512(b) is utterly

inconsistent with the analytical framework prescribed by the

Court. Where, as here, a federal statute criminalizes conduct

that is “not inevitably nefarious,” Ratzlaf v. United States,

510 U.S. 135, 144 (1994), this Court consistently construes

statutory mens rea elements to require either knowledge of

the law or knowledge of facts sufficient to render that conduct

blameworthy. Instead, the Fifth Circuit adopted a

construction that authorized criminal punishment for conduct

that a reasonable person would not have understood to be

criminal.

Finally, Amici show that this case vividly illustrates the

damaging consequences of the failure properly to understand

and apply the rule of lenity and other interpretive principles

that provide society with notice that specified conduct is

criminal. There is presently risk and uncertainty in the

administration of reuiine document retention policies and in

compliance with legal advice concerning the revision of

internal documents. This uncertainty and risk paralyze and

harm the businesses and individuals affected.

ARGUMENT

I. THE DECISION BELOW SUBVERTS THE RULE

OF LENITY.

Section § 1512(b) is ambiguous. The Fifth Circuit's

interpretation of § 1512(b)’s mens rea requirement broadened

a conflict between the Third and D.C. Circuits on the one

hand, and the Second and Eleventh Circuits on the other. See

Pet. 18-26.’ The existence of a circuit split is not dispositive

proof of ambiguity, but the decisions on both sides of the split

reveal a consensus that § 1512(b) is inherently ambiguous.

See generally Gary G. Grindler & Jason A. Jones, Please Step

Away From the Shredder and the “Delete” Key: §§ 802 and

1002 of the Sarbanes-Oxley Act, 41 Am. Crim. L. Rev. 67, 74

(2004) (“The meaning of ‘corruptly persuades’ under

§ 1512(b) is, unfortunately, perhaps even less certain than the

interpretation of the similar language in §§ 1503 and 1505;

there is much disagreement between the circuits”). As Amici

now show, the Fifth Circuit’s conclusion — that the ambiguous

“knowingly ... corruptly persuades” language criminalizes

the conduct of a defendant who acts with an “improper

purpose” — does serious violence to the rule of lenity.

A. The Rule Of Lenity Is A Vital Tool for

Construction of Ambiguous Criminal Statutes.

Originating in England during the late seventeenth and

early eighteenth centuries to protect individuals from the

expansive imposition of the death penalty, see Sarah

* Without expressly resolving the proper interpretation of § 1512(b), the

Eighth Circuit has recognized the statute’s ambiguity, United States v.

Pennington, 168 F.3d 1060, 1066 (8th Cir. 1999), and the Ninth Circuit

has acknowledged the statute’s competing interpretations, United States v.

Khatami, 280 F.3d 907, 912-13 (9th Cir. 2002).

Newland, Note, The Mercy of Scalia: Statutory Construction

and the Rule of Lenity, 29 Harv. C.R.-C.L. L. Rev. 197, 199-

200 (1994), the rule of lenity remains a substantive canon of

statutory interpretation essential to guarding individual rights.

The rule mandates that courts faced with statutory ambiguity

or more than one plausible reading of a criminal statute take

the narrowest view. See McNally v. United States, 483 U.S.

350, 359-60 (1987) (“when there are two rational readings of

a criminal statute, one harsher than the other, we are to

choose the harsher only when Congress has spoken in clear

and definite language”) (citing cases); cf. 1 William

Blackstone, Commentaries *92 (“[a] man cannot suffer more

punishment than the law assigns, but he may suffer /ess”). As

explained below, the Fifth Circuit’s interpretation of the

ambiguous “knowingly ... corruptly persuades” element of

§ 1512(b) ignored the rule of lenity and interpreted the

provision expansively rather than narrowly.

The foundations of the American rule of lenity were laid in

United States v. Wiltberger, 18 U.S. (S Wheat.) 76 (1820).

Chief Justice Marshall, interpreting the Crimes Act of 1790,

held that this statute, which granted federal jurisdiction over

cases involving manslaughter committed on an American

vessel on the “high seas,” did not apply to cases involving

manslaughter committed on a vessel docked on a river in

China. The Court strictly construed the statute, stating:

The rule that penal laws are to be construed strictly is

perhaps not much less old than construction itself. It is

founded on the tenderness of the law for the rights of

individuals; and on the plain principle that the power of

punishment is vested in the legislative, not in the judicial

department. i: is the legislature, not the Court, which is

to define a crime, and ordain its punishment. [/d. at 95.]

See id. at 105 (in the absence of Congressional action “this

Court cannot enlarge the statute’’).

Following Wiltberger’s teaching, strict construction of

criminal statutes became the governing canon within ‘United

States courts. For example, in United States v. Lacher, 134

U.S. 624, 628 (1890), the Court held that “before a man can

be punished, his case must be plainly and unmistakably

within the statute.” See also Ladner v. United States, 358

U.S. 169, 178 (1958) (“[T]}he Court will not interpret a federal

criminal statute so as to increase the penalty that it places on

an individual when such an interpretation can be based on no

more than a guess as to what Congress intended”); Bell v.

United States, 349 U.S. 81, 83 (1955) (Frankfurter, J.) (it is “a

presupposition of our law to resolve doubts in the

enforcement of a penal code against the imposition of a

higher punishment’’). |

This Court has set forth two primary reasons for the rule of

lenity: ensuring legislative supremacy and providing proper

notice to the public of what conduct is criminal. In

Wiltberger, Chief Justice Marshall emphasized that the rule

was intended to guarantee legislative supremacy in the

establishment of criminal law. See 18 U.S. (5 Wheat.) at 95-

97, 105-06. This Court later explained that “‘because

criminal punishment usually represents the moral

condemnation of the community, legislatures and not courts

should define criminal activity.’” United States v. Bass, 404

U.S. 336, 348 (1971) (quoting H. Friendly, Mr. Justice

Frankfurter and the Reading of Statutes, in Benchmarks 196,

209 (1967)). Cf. Kolender v. Lawson, 461 U.S. 352, 358

(1983) (the most important aspect of the prohibition of vague

criminal statutes is “the requirement that a legislature

establish minimal guidelines to govern law enforcement”)

(internal quotation marks and citation omitted).°

‘In this manner, the rule of lenity serves as a companion to the doctrine

of constitutional doubt in effectuating the intent of the legislature and

avoiding the creation of constitutional peril through broad interpretation of

ambiguous language. Cf. Clark v. Suarez Martinez, 125 S. Ct. 716, 724

(2005) (discussing lenity in the same context as constitutional avoidance);

This Court has also elaborated on the rule’s role in ensuring

that the public is provided with adequate notice of the

standards governing conduct and for imposing criminal

punishments. Justice Holmes, writing for the Court in

McBoyle v. United States, 283 U.S. 25 (1931), stated:

Although it is not likely that a criminal will carefully

consider the text of the law before he murders or steals,

it is reasonable that fair warning should be given to the

world in language that the common world will

understand.... To make the warning fair, so far as

possible the line should be clear. [/d. at 27.]

Accord Bass, 404 U.S. at 347-49. Thus, the rule of lenity is

among the “[s]ound principles of statutory construction

[which] lead [the Court] to reject the amorphous definitions”

that create room for arbitrary and unfair decisions by allowing

judges to develop standards of criminal punishment on a case-

by-case basis. Kozminski, 487 U.S. at 951.

The rule of lenity also plays a critical role in constraining

prosecutorial discretion. Vigorous application of the rule will

deter prosecutors from stretching criminal statutes to fit

conduct the prosecutor finds personally offensive. Sadly, it is

too late to spare Andersen and all of its employees. But

reversal of the conviction will protect future targets of

excessive prosecutorial zeal.

This Court’s jurisprudence continues to make the rule of

lenity the determining principle of construction when the text,

structure and legislative history of a criminal statute are

ambiguous about its meaning and application. Most recently

in Scheidler v. National Organization for Women, Inc., 537

U.S. 393 (2003), the Court again stated that “‘when there are

two rational readings of a criminal statute, one harsher than

the other, we are to choose the harsher only when Congress

has spoken in clear and definite language.” /d. at 409

Almendarez-Torres v. United States, 523 U.S. 224, 270-71 (1998) (Scalia,

J., dissenting).

(alteration omitted) (quoting McNally, 483 U.S. at 359-60).

See also United States v. Granderson, 511 U.S. 39, 54 (1994)

(“where text, structure, and history fail to establish that the

Government’s position is unambiguously correct[{,] we apply

the rule of lenity and resolve the ambiguity in [the

defendant’s] favor’’) (citing Bass, 404 U.S. at 347-49); United

States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion)

(when “ambiguity survives,” the court “choose[s] the

construction yielding the shorter sentence by resting on the

venerable theory of lenity”’); Moskal v. United States, 498

U.S. 103, 108 (1990) (the rule of lenity applies where the text,

structure and history of the statute leave reasonable doubt

about the statute’s intended scope).*

As we show infra, the rule of lenity applies in this case and

should have guided all courts of appeals to a strict

construction of § 1512(b). Indeed, once the Fifth Circuit

acknowledged that defining “‘knowingly... corruptly’ in

terms of improper purpose” is “circular[{]” and casts only

“dim light” upon its meaning and that other tools of statutory

guidance did not resolve § 1512(b)’s ambiguity, App. 19a,

that court should have applied the rule of lenity and

concluded that the statute did not criminalize Andersen’s

actions in this case.

* There is a debate among justices of this Court concerning whether the

rule of lenity applies whenever statutory text is ambiguous or only in

“situations in which a reasonable doubt persists about a statute’s intended

scope even after resort to ‘the language and structure, legislative history,

and motivating policies’ of the statute.” Moskal, 498 U.S. at 108 (quoting

Bifulco v. United States, 447 U.S. 381, 387 (1980)). See id. at 131-32

(Scalia, J., dissenting) (debating the majority’s characterization of the

rule); R.L.C., 563 U.S. at 308 (Scalia, J., concurring in part and in the

judgment) (the Court’s “treatment of ‘the venerable rule of lenity,’ does

not venerate the important values the old rule serves”) (internal citation

omitted). This debate is irrelevant here. The statute is ambiguous before

and after application of all traditional tools of statutory construction so the

rule of lenity applies under all justices’ views.

B. Because § 1512(b) Is Ambiguous, The Rule Of

Lenity Applies.

Section 1512’s text is hopelessly ambiguous. The

legislative history and other aids to construction are as vague

as the text. This is precisely the situation in which a court

should apply the rule of lenity, as the Third and D.C. Circuits

have done. The Fifth Circuit’s failure to apply the rule of

lenity and reverse the conviction was erroneous.

In United States v. Farrell, 126 F.3d 484 (3d Cir. 1997), the

Third Circuit properly applied the rule of lenity in its

construction of § 1512(b). That court reversed a defendant’s

conviction under § 1512(b) for “knowingly... corruptly

persuading” a witness to withhold information from the

Department of Agriculture. The court found “the phrase

‘corruptly persuades’ to be ambiguous,” id. at 487,

concluding that the meaning of “corruptly” was not

discernible “from the face of the statute,” the legislative

history, or other statutes prohibiting obstruction of justice

generally, id. at 487-90.

The government proposed that § 1512’s “knowingly...

corruptly” element should be read to require only an

“improper purpose,” a definition used in some of cases

interpreting the mens rea element of § 1503. The court,

however, flatly rejected the argument that “knowingly ...

corruptly” means “‘motivated by an improper purp@se’”

under § 1512(b). /d. at 489-90. The Third Circuit reasoned

that § 1512(b)’s “knowing” element and specific intent

requirement rendered the government’s proposed construction

of “corruptly” superfluous. /d. at 490 (“because the

‘improper purposes’ that justify the application of § 1512(b)

are already expressly described in the statute, construing

‘corruptly’ to mean merely ‘for an wmproper purpose’...

renders the term surplusage, a result that we have been

admonished to avoid”). The court concluded that even if

other more expansive readings of § 1512 were reasonable, the

rule of lenity demanded a strict construction of the statute. /d.

at 489 (citing cases).°

Similarly, in United States v. Poindexter, 951 F.2d 369

(1991), the D.C. Circuit held that the word “corruptly,” as

used in the former § 1505, “on its face . . . is vague; that is, in

the absence of some narrowing gloss, people must ‘guess at

its meaning and differ as to its application.’"” /d. at 378

(quoting Connally v. General Constr. Co., 269 U.S. 385, 391

(1926)). The court explained that “corruptly” has both a

transitive and intransitive meaning, the former involving the

persuasion of another by means of corruption or bribery while

the latter involves persuading wickedly or immorally, that is,

with a bad motive. /d. The court adopted the transitive

meaning to avoid unconstitutional vagueness and concluded

that even that reading “would still be unconstitutionally

vague” without the additional requirement that the

defendant’s conduct violate a “legal duty.” /d. at 379

(emphasis omitted). Further, the court found that the text

failed to satisfy the notice rationale for the rule of lenity set

forth in Bass, 404 U.S. at 348. See 951 F.2d at 386 (“neither

the legislative history nor the prior judicial interpretation of

§ 1505 supplies the constitutionally required notice that the

statute on its face lacks”).°

In contrast, the Fifth Circuit broadly interpreted § 1512(b)’s

ambiguous text and legislative history, embracing the harsher

of two readings of a criminal statute although neither

*In United States v. Davis, 183 F.3d 231 (3d Cir.), amended by 197

F.3d 662 (3d Cir. 1999), the Third Circuit revisited the meaning of

“corrupt persuasion’” in § 1512, and again expressly recognized that a

jury instruction defining “corruptly” as “‘having improper motive or

purpose’” was erroneous. 183 F.3d at 250 & n.6.

* After Poindexter, Congress amended § 1515 to redefine “corruptly” as

used in § 1505. See Pet. 18 n.19. The amendment provided “the term

‘corruptly’ means acting with an improper purpose.” 18 U.S.C. § 1515(b).

Congress conspicuously applied that new definition only to § 1505,

notwithstanding that §§ 1503 and 1512 also use “corruptly.”

Congress's language nor its legislative history were “clear” or

“definite.” McNally, 483 U.S. at 359-60. With respect to

§ 1512(b)’s text, the court “defin[ed] ‘corruptly’ in terms of

improper purpose,” even though it forthrightly acknowledged

“the dim light [that definition] casts upon its meaning, its

circularity aside.” App. 19a (emphasis supplied). And, the

Fifth Circuit did not conclude that the legislative history

clearly dictated its interpretation of “knowingly . . . corruptly

persuades,” but instead opined that “defining ‘corruptly’ as

‘motivated by an improper purpose’ comports easily with the

legislative history.” /d. at 23a (emphasis supplied). This

analysis reveals the court's erroneous understanding of the

rule of lenity. That rule requires a restrictive interpretation of

a statute whose text and legislative history leave its meaning

unclear. The fact that the legislative history is consistent with

an interpretation of text that itself casts only a “dim light” on

the statute’s meaning cannot justify the court’s failure to

apply the rule of lenity.

Like the Fifth Circuit, the other circuits interpreting

§ 1512(b) expansively have acknowledged that the section’s

“knowingly ... corruptly” language is not clear-cut. In

United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996),

and United States v. Shotts, 145 F.3d 1289, 1300-01 (11th

Cir. 1998), the Second and Eleventh Circuits rejected

arguments that § 1512(b) was vague. In so doing, they relied

on § 1512's legislative history. See, e.g., Shotts, 145 F.3d at

1300-01 (relying on Farrell, 126 F.3d at 492 (Campbell, J.,

dissenting)). The legislative history, however, is wholly

indeterminate. Senator Biden’s remarks relating to “know-

ing[] . . . corrupt persuasion” account for a few paragraphs in

a lengthy section-by-section analysis of the Anti-Drug Abuse

Act of 1988, and reveal only that the “knowingly...

corruptly persuades” language was intended to overrule a

Second Circuit case and ensure that bribing witnesses or

persuading witnesses to commit perjury could be prosecuted

under federal law. See 134 Cong. Rec.- 32701 (1988).

Indeed, the definitional language introduced by the House

Report, and enacted as § 1515(a)(6), merely states the “term

‘corruptly persuades’ does not include conduct that is not

‘misleading conduct’ because a state of mind required for

‘misleading conduct’ is lacking.” H.R. Rep. No. 100-169, at

12-13 (1987); id. at 13 n.27; see also 18 U.S.C. § 1515(a)(6)

(implementing House language and defining “knowingly .. .

corruptly persuades” as used in §§ 1512 and 1513). Nowhere

does the legislative history of § 1512 equate “knowingly .. .

corruptly” with an “improper purpose,” or cite any cases

applying the mens rea element in those terms.”

In the decision below, the Fifth Circuit's “statutory

inflation” of §1512(b) “raise[s] concerns about both

legislative primacy and due process.” Lawrence M. Solan,

Statutory Inflation and Institutional Choice, 44 Wm. & Mary

L. Rev. 2209, 2262 (2003). Congress enacted a mens rea

requirement of “knowing” and “corrupt” persuasion, as well

as the improper purpose of interfering with a proceeding. By

failing to give the requirement of “corrupt” persuasion any

content — let alone content more demanding than knowing

persuasion — the Fifth Circuit authorized a prosecution not

contemplated by the legislature and adopted a statutory

interpretation that contravenes the rule of lenity.

C. The Application Of The Rule Of Lenity In This

Case Fully Serves Its Important Purposes And

The Administration Of Justice.

The application of the rule of lenity here would serve the

administration of justice.

First, the law must give notice of what conduct may be

punished by criminal sanction. As this Court has explained,

"Not a single case cited in Senator Biden’s discussion of “corrupt

persuasion” mentions the phrase “improper purpose.” See 134 Cong. Rec.

at 32701 (citing cases); cf. Pet. 23 n.23 (discussing the cases’ nexus to

wrongful acts).

“*a fair warning should be given to the world in language that

the common world will understand, of what the law intends to

do if a certain line is passed. To make the warning fair, so far

as possible the line should be clear."” Bass, 404 U.S. at 348

(quoting McBoyle, 283 U.S. at 27). If a criminal law is

ambiguous, it does not give fair warning unless it is strictly

construed to resolve the ambiguity in the defendant’s favor.

Only then does the statute provide sufficient notice of the

conduct being criminalized.

Clear notice is particularly important when a statute

criminalizes conduct that is an integral part of numerous

businesses’ daily routine. Here, Andersen was convicted of a

crime based on an instruction to adhere to the Company’s

document retention policy and in-house counsel’s advice to

edit a memorandum at a time when no formal SEC

investigation was pending. Had the rule of lenity been

applied to § 1512(b), and particularly to its mens rea

requirements, the statute’s ambiguities would have been

resolved in favor of a heightened mens rea requirement.

Second, as Justice Scalia has noted, the rule of lenity,

properly understood and applied, should prevent the

fundamental unfairness resulting from circuit splits about the

interpretation of federal criminal statutes. See Bryan v.

United States, 524 U.S. 184, 205 (1998) (Scalia, J.,

dissenting). If the courts of appeals faithfully applied the rule

when ordinary tools of statutory construction resulted in a

conclusion that the statute was ambiguous, there would be far

fewer differing interpretations of criminal statutes.

Moreover, without the rule of lenity as a tie-breaker in

construing ambiguous statutes, the enforcement of such laws

sews trouble, confusion and an increased caseload for courts

in the future. As Justice Scalia has observed:

In our era of multiplying new federal crimes, there is

more reason than ever to give this ancient canon of

construction [the rule of lenity] consistent application:

by fostering uniformity in the interpretation of criminal

statutes, it will reduce the occasions on which this Court

will have to produce judicial havoc by resolving in

defendants’ favor a Circuit conflict regarding the

substantive elements of a federal crime. [Bryan, 524

U.S. at 205 (citing Bousley v. United States, 523 U.S.

614 (1998))].

In Bousley the Court had to sort out the consequences of

Bailey v. United States, 516 U.S. 137 (1995), which resolved

a circuit split about the meaning of the prohibition on the “use

or carry[ing]” of a firearm in the commission of a crime.

Once the Court resolved that issue, substantial additional

litigation ensued concerning retroactivity. This Court

ultimately heard Bousley to resolve a circuit split involving

hundreds of habeas petitions over whether defendants who

pled guilty could raise Bailey challenges on habeas corpus

review. The Court held such challenges were available on

habeas if defendants could show “‘actual innocence.’” 523

U.S. at 623-24. This also happened in McNally where the

Court’s decision altered an element of the criminal offense,

and thus applied retroactively. More than 200 former

government officials had their convictions overturned. Many

lives had already been ruined.

Bousley and McNally effectively illustrate the profound

rippling effect and additional work generated when courts

interpret ambiguous criminal statutes without the presumption

mandated by the rule of lenity. Once the meaning of the

statute is determined, courts, defendants and prosecutors pay

the price for the period of uncertainly caused by the failure to

apply the rule of lenity. Because a defendant convicted by a

jury that has been erroneously instructed on an element of a

criminal offense can often plausibly plead actual innocence,

the resolution of a circuit split may give rise to substantial

issues related to the issuance of a writ of habeas corpus. The

same result would attach to a reversal here, because the

definition of a crime under § 1512(b) would be fundamentally

altered by a heightened mens rea requirement (this case

would not, however, give rise to the thousands of habeas

petitions resulting from Bailey because many fewer

prosecutions occur under § 1512(b)).

In sum, the proper application of the rule of lenity to

ambiguous criminal statutes could prevent the harmful

consequences resulting from conflicting interpretations of a

criminal statute, not only for the defendants swept in by

overbroad and inconsistent interpretations but also for the

judiciary whose caseload is multiplied. Section 1512(b)

should be strictly construed to exclude Andersen’s conduct.

Il. SECTION 1512(b) SHOULD NOT BE INTER-

PRETED TO CRIMINALIZE CONDUCT THAT A

REASONABLE PERSON WOULD NOT UNDER-

STAND TO BE CRIMINAL.

The maxim “ignorance of the law will not excuse,” Shevlin-

Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910), and the

criminal law’s “ancient requirement of a culpable state of

mind,” Morissette v. United States, 342 U.S. 246, 250 (1952),

are often in tension. That tension is heightened when a

defendant is prosecuted under a statute criminalizing acts not

generally understood to be immoral or criminal — viz., crimes

that are mala prohibitum.” In a series of cases, this Court has

resolved that tension by recognizing that ignorance of the law

in fact may be a valid excuse if the law itself makes

knowledge of the law an element of the offense, and by

interpreting the mens rea elements of crimes that are mala

prohibitum to require that the defendant know that his or her

conduct was unlawful.

This interpretive approach to mala prohibitum offenses

reflects a background presumption that culpability should be

* Malum prohibitum refers to “|a)n act that is a crime merely because it

is prohibited by statute, although the act itself is not necessarily immoral.”

Black's Law Dictionary 978 (8th ed. 2004).

required for criminal punishment in that setting. It resembles

the rule of lenity — indeed, it probably is no more than a

particular application of the rule of lenity — because it results

in a more demanding mens rea requirement for criminal laws

addressing conduct not generally understood to be criminal.

See Joseph E. Kennedy, Making the Crime Fit the Punish-

ment, 51 Emory L.J. 753, 864 n.463 (2002) (“[cjonstruing

mens rea terms in the defendant’s favor is a form of leniency,

and it serves conceptual clarity to call it such”).’ As we show

infra, this is the framework that should have been utilized by

the Fifth Circuit in interpreting § 1512(b).

Instead, the Fifth Circuit constructively applied the maxim

“ignorance of the law is no excuse.” The lower court failed to

recognize that, although this maxim continues to hold sway in

interpreting statutes criminalizing conduct that is malum in se

and in interpreting so-called public welfare statutes, the mens

rea requirements of statutes such as § 1512(b), which

criminalize at least some conduct that is not inherently

culpable are generally interpreted to require a defendant to

know that he or she is acting unlawfully.

* This Court has recognized that interpreting statutes involving conduct

that is malum prohibitum to require a heightened mens rea is interrelated

with the rule of lenity. See Ratzlaf, 510 U.S. at 146-49 (requiring showing

of mens rea in tandem with application of rule of lenity); Liparota v.

United States, 471 U.S. 419, 426-28 (1985) (“requiring mens rea is in

keeping with our longstanding recognition of the principle that ‘ambiguity

conceming the ambit of criminal statutes should be resolved in favor of

lenity.””); cf. Staples v. United States, 511 U.S. 600, 619 n.17 (1994)

(finding it unnecessary to apply rule of lenity because common law

requirement of mens rea governed statutory interpretation), United States

v. Thompson/Center Arms Co., 504 U.S. 505, 517-18 (1992) (plurality

opinion) (proper to apply the rule of lenity to a civil statute whose

criminal applications carry no willfulness requirement)

A. Ignorance Of The Law Does Excuse Crimes That

Are Mala Prohibitum Where Knowledge Of The

Law Is An Element Of The Crime.

Seeking to uphold the Fifth Circuit's interpretation of

§ 1512(b)’s mens rea requirements, the government relies

heavily on the axiom that “‘ignorance of the law is no

defense.” See Cert. Opp’n at 11, 22-24. That maxim has no

application here. Section 1512(b) criminalizes conduct that a

reasonable person would not understand to be criminal; thus,

under this Court’s precedent, § 1512(b)’s mens rea

requirements should be interpreted to make a defendant's

knowledge that he or she is engaged in unlawful conduct an

element of the crime.

In Barlow vy. United States, 32 U.S. (7 Pet.) 404, 411

(1833), Justice Story stated, “[i]Jt is a common maxim,

familiar to all minds, that ignorance of the law will not excuse

any person, either civilly or criminally.” But, there have

always been exceptions to this general rule. See Vera Bolgar,

The Present Function of the Maxim Ignorantia Juris

Neminem Excusat — A Comparative Study, 52 lowa L. Rev.

626, 630 (1967). Indeed, “the general principle that

ignorance or mistake of law is no excuse is usually greatly

overstated; it has no application when the circumstances made

material by the definition of the offense include a legal

element.” Model Penal Code § 2.02, cmt. 131 (Tent. Draft

No. 4, 1955), quoted in United States v. Freed, 401 U.S. 601,

615 n.6 (1971) (Brennan, J., concurring).

Thus, ignorance of the law does not excuse crimes that are

mala in se, because the individual’s evil or vicious mind is

inherent in the commission of the crime itself.” For these

10 . , . :

According to Elackstone, mala in se are “crimes and misdemeanors,

that are forbidden by the superior laws, and therefore styled mala in se

[crimes in themselves], such as murder, theft, and perjury; which contract

no additional turpitude from being declared unlawful by the inferior

legislature.” 1 William Blackstone, Commentaries *54. See also Henry

common law crimes, the notion of ignorance would be flatly

contrary to the moral certainty of the wrong. Cf. Cheek v.

United States, 498 U.S. 192, 199 (1991) (“Based on the

notion that the law is definite and knowable, the common law

presumed that every person knew the law”).

In addition, this Court has held that ignorance of the law

does not excuse a subset of crimes that are mala prohibitum —

the so-called public welfare offenses characterized by their

relatively small penalties and regulatory focus. See, ¢.g.,

Barlow, 32 U.S. at 411; Shevlin-Carpenter Co., 218 U.S. at

68-69; United States v. International Minerals & Chem.

Corp., 402 U.S. 558, 565 (1971); Freed, 401 U.S. at 608-09.

The Court explained that ignorance is typically not a defense

“in regulatory measures in the exercise of what is called the

police power where the emphasis of the statute is evidently

upon achievement of some social betterment rather than the

punishment of the crimes as in cases of mala in se.” United

States v. Balint, 258 U.S. 250, 252 (1922).

In United States v. U.S. Gypsum, Co., 438 U.S. 422 (1978)

(plurality opinion), however, the Court strongly indicated that

the category of public welfare offenses in which strict liability

would be inferred was extremely narrow. Citing these cases,

the Court acknowledged that “strict-liability offenses are not

unknown to the criminal law,” but emphasized that “the

limited circumstances in which Congress has created and this

Court has recognized such offenses attest to their generally

disfavored status.” /d. at 437-38 (internal citations omitted).

Significantly, the Court observed that the line between

routine, acceptable business conduct and criminal conduct is

M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs.

401, 413 (1958) (“[A]lmost everyone is aware that murder and forcible

rape and the obvious forms of theft are wrong. But in any event,

knowledge of wrongfulness can fairly be assumed. For any member of

the community who does these things without knowing that they are

criminal is blameworthy, as much for his lack of knowledge as for his

actual conduct”).

difficult to discern under the Sherman Act, rejected strict

liability for criminal violations of the Act (despite the absence

of any mens rea element), and interpreted the Act to impose -

the traditional criminal mens rea of a knowing violation of the

law. Id. at 435-36. See also Hanousek v. United States, 528

U.S. 1102, 1104 (2000) (Thomas, J., dissenting from denial of

certiorari) (“[t]he seriousness of the[] penalties [under the

Clean Water Act] counsel against concluding that the CWA

can accurately be classified as a public welfare statute”’).

In marked contrast and of vital importance here, ignorance

of the law does excuse offenses that are mala prohibitum, that

is, where a statute criminalizes conduct that is “not inevitably

nefarious.” Ratzlaf, 510 U.S. at 144. See generally John

Shepard Wiley, Jr., Not Guilty By Reason of Blamelessness:

Culpability in Federal Criminal Interpretation, 85 Va. L.

Rev. 1021 (1999) (discussing this Court’s cases reflecting

what the author terms “the rule of mandatory culpability”). In

a line of cases commencing with Morissette and culminating

in Bryan, this Court has consistently construed mens rea

elements in such statutes to require knowledge that the

conduct at issue is unlawful. This is done in two ways. If

knowledge of certain historical facts is sufficient to render

conduct blameworthy, the mens rea elements of the statute

are construed to require knowledge of such facts. See infra at

20-21 (discussing Morissette and Staples). But where, as

here, knowledge of historical facts does not put a reasonable

person on notice that his or her behavior is criminal, the mens

rea elements of the statute are interpreted to require

knowledge of the law. See infra at 22-23 (discussing

Liparota, Cheek, Ratzlof, and Bryan).

In Morissette, a defendant who salvaged spent bomb

casings from a vacant plot of land was indicted and convicted

of “*knowingly . . . covert[ing]’ [government] property.” 342

U.S. at 248 (quoting 18 U.S.C. § 641). Believing that the

casings were abandoned, the defendant argued that he had no

criminal intent, but the trial court refused to allow him to

present his claimed innocent intent to the jury. See id. at 248-

49. On review, this Court rejected the government's

argument that Congress intended to criminalize even

unwitting conversions, holding that the “knowing” element of

the crime required the prosecution to prove that the defendant

“had knowledge of the facts, though not necessarily the law,

that made the taking a conversion.” /d. at 271. Describing

the public welfare cases as rare exceptions to the general rule

that crime requires an “evil-meaning mind” and an “evil-

doing hand,” id. at 251-54, 257-63, Justice Jackson’s majority

opinion stated:

The contention that an injury can amount to a crime only

when inflicted by intention is no provincial or transient

notion. It is as universal and persistent in mature

~ systems of law as belief in freedom of the human will

and a consequent ability and duty of the normal

individual to choose between good and evil. [/d. at 250.]

Accordingly, the Court interpreted the explicit statutory mens

rea element of knowing conversion to require knowledge of

the facts making the conversion of property unlawful. /d. at

275.

The Court utilized the same analytical framework in

construing the mens rea element in the National Firearms Act,

which prohibits receipt or possession of an automatic weapon.

Despite the absence of any scienter requirement, the Court

reasoned that because the Act did not govern public welfare

and because severe penalties were attached to its violation,

the government was required to prove that the defendant

knew of the features of the weapon that brought it within the

scope of the Act. Staples v. United States, 511 U.S. 600, 606-

07, 619 (1994). See also United States v. X-Citement Video,

Inc., 513 U.S. 64, 72 (1994) (holding “knowingly” require-

ment applied to each phrase of the Protection of Children

Against Sexual Exploitation Act, and stating, “Morissette,

reinforced by Staples, instructs that the presumption in favor

of a scienter requirement should apply to each of the statutory

elements that criminalize otherwise innocent conduct”).

In Liparota v. United States, 471 U.S. 419, 433-34 (1985),

the Court extended this framework by interpreting the mens

rea element “knowingly” to require knowledge that one’s

conduct violated the law. In Liparota, the federal law

penalized anyone who “knowingly” acquired food stamp

coupons in a manner not authorized by regulations; Liparota

argued that he did not know he had done anything wrong by

accepting food stamps in exchange for a discounted amount

of cash, i.e., that he was not “morally blameworthy.” /d. at

423. This Court construed the mens rea element to require

proof that the defendant “knew that his conduct was

unauthorized or illegal,” id. at 434, thereby accepting

ignorance of the law as an excuse. See also Cheek, 498 U.S.

at 202-04 (interpreting mens rea élement of “willfully”

attempting to evade a tax to require proof of an intentional

violation of a known legal duty).

More recently, in Ratzlaf v. United States, 510 U.S. 135

(1994), the Court construed the mens rea element of

willfulness in the Money Laundering Control Act’s provision

outlawing the “structuring” of cash transactions with banks

into amounts smaller than $10,000 in order to prevent a bank

from reporting the transaction. A defendant attempted to pay

a gambling debt by purchasing cashiet’s checks for less than

$10,000 from several, different banks. Concluding that

structuring is not “so obviously ‘evil’ or inherently ‘bad’ that

the ‘willfulness’ requirement is satisfied irrespective of

defendant's knowledge,” id. at 146 — viz., that structuring is

malum prohibitum — the Court held that a willful violation of

the anti-structuring law occurred only if “the Government . . .

prove(d] that the defendant acted with knowledge that his

conduct was unlawful.” /d. at 137, 149 (by using the term

“willful,” Congress “decree[{d]” that ignorance of the law is a

defense to a criminal charge).

Finally, in Bryan v. United States, 524 U.S. 184, 196-98

(1998), the Court held that in order “willfully” to violate the

federal licensing requirement for firearms dealers, the

government must show that defendant knew his or her

conduct was unlawful. Again, the Court construed the statute

to provide that a person commits a crime only if he or she acts

with consciousness of wrongdoing.

Together Liparota, Cheek, Ratzlaf, and Bryan stand for the

proposition that where, as here, a federal statute criminalizes

acts that are not inherently nefarious, the mens rea element of

the statutes will be interpreted to require the government to

prove that the defendant knew that his conduct was unlawful.

By this process of interpretation, ignorance of the law has

become an excuse in such a setting. Cf. Wiley, supra, at 1045

(discussing the Court’s shift toward a culpability requirement

and stating “the Liparota and Ratzlaf decisions are more

remarkable than the other cases [Staples and X-Citement

Video] because they break with the historic rule that

‘ignorance of the law is no defense’ and then go further by

requiring neither official reliance nor that the defendant bear

the burden of proof’). In this line of cases, the rule that

ignorance of the law does not excuse is secondary to the

equally critical principle that the “existence of a mens rea is

the rule of, rather than the exception to, the principles of

Anglo-American criminal jurisprudence.” Staples, 511 U.S.

at 605 (internal quotation marks omitted). Cf. Smith v. Wade,

461 U.S. 30, 69 (1983) (Rehnquist, J., dissenting) (““There is

only one criterion by which the guilt of men is to be tested. It

is whether the mind is criminal.... It is therefore the

principal of our legal system, as probably it is of every other,

that the essence of an offense is the wrongful intent, without

which it cannot exist’) (omission in original) (quoting | J.

Bishop, Criminal Law §§ 285-287 (Sth ed. 1872)).

B. Section 1512(b)’s Mens Rea Elements Should Be

Interpreted To Require The Prosecution To

Prove That A Defendant Knows Its Conduct Is

Unlawful.

Neither one employee's request to another to observe the

Company's legal document retention policy nor in-house

counsel's advice to an employee to edit a memorandum could

remotely be characterized as either malum in se or a public

welfare offense. The conduct that § 1512(b) is alleged to

criminalize here is not inherently dangerous, nor does it

demonstrate an evil or guilty mind. Indeed, far from being

inherently culpable, document destruction — or advice

regarding destruction — is often socially beneficial. See

Christopher R. Chase, To Shred or Not to Shred: Document

Retention Policies and Federal Obstruction of Justice

Statutes, 8 Fordham J. Corp. & Fin. L. 721, 721, 724-25

(2003) (discussing benefits of document retention policies);

Steven R. Schoenfeld & Rosena P. Rasalingam, Document

Retention Policies Have Long-Term Benefits, N.Y.L.J., Nov.

18, 2002, at SS (stating document retention policies “save

money” and “facilitate the company’s business operations and

preserve the company’s valuable information assets”).

In addition, the penalties for violation of § 1512(b), which

authorizes a ten-year term of imprisonment, are too severe

and substantial to characterize it as a law regulating public

welfare. See Staples, 511 U.S. at 616-18 (public welfare

offenses typically involve small penalties); Francis B. Sayre,

Public Welfare Offenses, 33 Colum. L. Rev. 55, 72 (1933)

(the “cardinal principle{]” of public welfare offenses is that

the penalty may not be severe).

Accordingly, § 1512(b) criminalizes conduct that is malum

prohibitum — unlawful solely by virtue of the statute. As a

result, under this Court’s precedent set forth above,

§ 1512(b)’s ambiguous mens rea elements — that the

defendant “knowingly . . . corruptly persuade” another person

“with intent to... alter, destroy, mutilate, or conceal an

object with intent to impair the object’s integrity or

availability for use in an official proceeding,” 18 U.S.C.

§ 1512(b)(2)(B) (emphasis added) — should be interpreted to

require the defendant to know that his or her conduct was

unlawful. Neither the trial court’s instructions to the jury nor

the Fifth Circuit's interpretation of the statute imposed this

requirement. See Pet. App. 24a-25a, 29a, 41a (Fifth Circuit);

id. at 47a-49a (jury instructions). The Fifth Circuit wrongly

concluded that defendant's ignorance of wrongdoing would

be no excuse for its acts even though, under this Court's

precedents, § 1512(b)’s multiple mens rea elements required

the prosecution to show that that Andersen knew its conduct

was unlawful.

It was only by failing to heed the relevant precedents that

the court below was able to construe § 1512(b) to criminalize

conduct that was not inherently evil and that a reasonable

person would not have understood was unlawful.

Ill. THE DECISION BELOW HAS SUBSTANTIAL

DAMAGING IMPLICATIONS FOR THE ECON-

OMY AND INDIVIDUALS.

A. The Decision Below Criminalizes Supervision Of

Legal Conduct And Creates Uncertainty And

Inefficiency.

This was a high profile prosecution that destroyed a

venerable business and many professional careers. The legal

message that this prosecution sent has not been lost on

businesses and individuals. If a company or executive has

any basis to believe that a formal government investigation

may be commenced at some point in the future, compliance

with a lawful document retention policy or the advice of

counsel with respect to edits to draft documents poses a

serious risk of criminal prosecution. For large institutions this

risk weighs heavily on their day-to-day decisions and

activities. It is difficult enough to compete in a global market

= ——— A ee

place without having ordinary conduct take on a criminal risk

simply because there is an inquiry in the air.

Criminal penalties are reserved for the most egregious

conduct; moreover, unlike civil law penalties, criminal

sanctions typically apply only to that conduct which society

views as unambiguously wrongful. The Fifth Circuit's

reading of § 1512(b) in this case, however, criminalizes

conduct that was believed to be lawful and that consisted of

reminding a subordinate to engage in wholly lawful conduct

and providing legal advice to a client concerning the content

of a memorandum. See Steven Lubet, Document Destruction

After Arthur Andersen: Is It Still Housekeeping or Is It A

Crime?, 4 J. App. Prac. & Process 323 (2002); Stephen

Gillers, The Flaw In The Andersen Verdict, N.Y. Times, June

18, 2002, at A23 (explaining that in-house counsel's

memorandum was “bona fide legal advice to a client who was

writing a standard file memo, the kind of advice lawyers

routinely give”). ;

At the time of Andersen's alleged obstruction of justice, it

was lawful and economically beneficial for Andersen to

maintain a document retention policy and for Andersen

employees to destroy documents in compliance with that

policy. See Chase, supra, at 721, 724-25 (discussing benefits

of document retention policies); Schoenfeld & Rasalingam,

supra, at SS (same). It was also lawful for a supervisor who

discovered that employees were not complying with the

document retention policy to destroy the documents him or

herself. Under the Fifth Circuit's rule, however, it was illegal

for that supervisor to suggest that employees observe the

document retention policy if one object of the suggestion was

to impede some future fact-finding by the government. This

pushes an already severe form of vicarious corporate liability

to an extreme. It is difficult to conceive of another area of the

criminal law in which two individuals have precisely the

same mens rea, and the one who acts commits no crime, but

the one who merely suggests the act is deemed to have

engaged in illegal conduct.’ |

The effects of this anomalous situation are severe for

businesses and individuals. Companies and employees will

be consumed by inefficient caution. If an official

investigation even approaches the horizon, it will become

impossible as a practical matter for a company to advise its

employees to comply with its efficient and legal document

retention policy for fear of running afoul of the law. In a

company with thousands of employees which generates

millions of paper documents and hundreds of millions of

electronic documents, such an approach is at least onerous.

For a small business, where space limitations, storage costs,

and legal advice are relatively more burdensome, such a rule

can be devastating. If Congress wants to impose those

burdens and to criminalize failure to act in accordance with a

federal rule of document retention, then it should do so

expressly and unambiguously. Absent that, prosecutors

should not be invested with a roving commission to stretch

criminal law to fit conduct not clearly prohibited. Only a

faithful and consistent use of the rule of lenity and related

interpretive principles regarding crimes that are not mala in se

can prevent the kind of needless harm that the prosecution in

this case created.

B. The Conviction Of Andersen And Others Under

Amorphous Standards Inflicts Significant Dam-

age On The Economy.

Instead of prosecuting individual actors, the United States

chose to prosecute Andersen, allowing the jury to spread

blame for the actions of a few across a corporate structure.

By holding that Andersen violated § 1512(b), even though its

'' An analogous critique could be offered with respect to criminalizing

the in-house attorney's legal advice to edit a company memorandum, but

Amici incorporate the analysis of the National Association of Criminal

Defense Lawyers to avoid repetition.

document retention policy and its compliance with legal

advice were lawful, the prosecution was able to conflate legal

and illegal acts, ultimately allowing the jury to punish a

faceless corporation.

Multiple commentators opined that in the aftermath of

Enron's collapse, government prosecutors were under intense

pressure to obtain a symbolic conviction or find a scapegoat,

and thus turned to Andersen because of the perceived ease in

prosecuting obstruction of justice. See, e.g., Jeffrey Toobin,

End Run at Enron: Why the Country's Most Notorious

Executives May Never Face Criminal Charges, New Yorker,

Oct. 27, 2003, at 48 (a federal investigator stated that in

Enron's aftermath, “‘[wje made Andersen our first case

because it was easy and it was obvious’”). With a single

stroke, and absent any showing of conduct that a reasonable

person would know to be criminal, the government destroyed

an important actor in a vital sector of the United States

economy. As one commentator observed:

[T)he attitude was Arthur Andersen got what it deserved.

The question is: What is Arthur Andersen and who got

what they deserved? You know, some secretary in Des

Moines that doesn’t have a job now or some junior

auditor in Atlanta? I mean, that's who got punished.

There is no such thing as Arthur Andersen and there is

no such thing as Enron. You can't punish a legal entity."

_ To be sure, enforcement of the obstruction of justice laws

against corporations may serve the overall social good and

benefit the economy by ensuring that shareholders are

protected and markets remain competitive. In this case,

however, an extravagant legal theory, tried and imposed

° ABI Roundtable Discussion, Remember When — Recollections of a

Time When Aggressive Accounting, Special Purpose Vehicles, Asset Light

Companies and Executive Stock Options Were Positive Attributes, 11 Am.

Bankr. Inst. L. Rev. 1, 10-11 (2003) (footnotes omitted) (emphasis

supplied ).

without sufficient mens rea protections, irreparably damaged

individual lives and American business. Andersen disappear-

ed because an incorrect and overbroad legal standard was

Individuals and businesses need to know what they must do

to comply with the law on the obstruction of justice; for that

reason, the courts of appeals must apply the rule of lenity and

related interpretive principles in the application of § 1512(b)

and other ambiguous criminal laws. Unless these principles

are rigorously observed, increasingly aggressive prosecutions

of white-collar crime will inflict incalculable economic and

intangible harm on businesses, their employees and their

shareholders. Only Congress should make fundamental

policy choice and nothing in § 1512(b) reflects that Congress

did so there.

CONCLUSION

For all of these reasons, and those stated by petitioner, the

decision of the court of appeals should be reversed.

Respectfully submitted,