# Amicus Curiae Brief — Arthur Andersen LLP v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0038%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 696

## Text

| 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)

il
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

Vv

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

vi
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.

2
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

3

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.

4

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

5

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).

6

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’’).

7

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);

8

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).

9

(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.

10

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.”

12

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).

13

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).

~

14

“*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:

15

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

16

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).

17

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

19

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”).

20

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

21

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

22

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).

23

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)).

24

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

25

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

26

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

27

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.

28

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 ).

29

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,
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0038%3A14. Public record. Not legal advice.