1. What are the words from the statute that establish the act requirement and the mental requirement?

2. Why did the Court hold that the jury instructions were improper?

3. By the time the Court reversed Andersen’s conviction, the firm had collapsed from the weight of bad publicity. The government decided not to retry the case. Was it good public policy to destroy the world’s largest professional service firm for the actions of a handful of employees? Why do you suppose the government chose not to retry the case?

As Enron Corporation’s finan-cial difficulties became public, Arthur Andersen, Enron’s auditor, instructed its employees to destroy documents pursuant to its established document retention policy. Andersen was indicted under a fed-eral statute that makes it a crime to “knowingly . . . corruptly persuad[e] another person . . . with intent to . . . cause” that person to “withhold” documents from, or “alter” documents for use in an “official proceeding.” The jury returned a guilty verdict, and the Fifth Circuit Court of Appeals affirmed, holding that the district court’s jury instructions properly conveyed the meaning of “corruptly persuades” and that the jury need not find any consciousness of wrongdoing in order to convict. 

In a unanimous decision by the U.S. Supreme Court, Andersen’s conviction was overturned. The Court reasoned that the instructions allowed the jury to convict Andersen without proving that the firm knew it had broken the law or that there had been a link to any official proceeding that prohibited the destruction of documents. The Court specifically held that the jury’s instructions—which stated that even if Andersen honestly and sincerely believed its conduct was lawful, the jury could still convict the firm—were improper. The statute under which Andersen was charged used the language “knowingly .  .  . corruptly persuade.” Andersen managers did instruct their employees to delete Enron-related files, but those actions were within the firm’s document retention policy. If the document retention policy was constructed to keep certain information private, even from the government, Andersen was not corruptly persuading its employees to keep the information private. 

“The jury instructions failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction.  .  .  . The jury instructions failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict. The instructions also diluted the meaning of ‘corruptly’ such that it covered innocent conduct.”