La rivincita di Andersen: salta la condanna Enron

[FaGal]

1 giugno 2005

La rivincita di Andersen: salta la condanna Enron

Scandali / Corte Suprema: processo viziato


NEW YORK • La rivalsa, per Arthur Andersen, è arrivata troppo tardi. Ma è arrivata: la Corte Suprema degli Stati Uniti, la più alta autorità giudiziaria americana, ha cancellato la condanna dell'ex colosso della revisione dei bilanci aziendali, travolto da accuse di ostruzione alla giustizia nello scandalo Enron. Il processo è stato definito gravemente viziato. Anzi, per la precisione, a violare le regole sarebbero state le istruzioni date dal tribunale alla giuria. Troppo vaghe, ha sentenziato la Corte. E colpevoli, loro, d'una grave mancanza: non aver chiesto alla giuria di decidere se Andersen avesse intenzionalmente ostruito le inchieste federali.
La Andersen era stata condannata nel 2002 nonostante i dubbi su una sua generale responsabilità nel crack Enron, di cui controllava i conti. Secondo la pubblica accusa aveva persuaso i propri dipendenti a distruggere una enorme documentazione considerata rilevante per le indagini del Dipartimento della Giustizia e della Securities ad Exchange Commission sul protagonista del trading energetico. Enron era crollata alla fine del 2001 sotto una montagna di debiti nascosti e di conti gonfiati, inaugurando la stagione degli scandali contabili nella Corporate America.
Al termine della disavventura processuale la Andersen, un tempo tra i cinque grandi revisori internazionali con quasi 30.000 dipendenti, era ormai solo l'ombra di se stessa. Ora è ridotta a forse 200 persone, impegnate a sbrigare compiti amministrativi e soprattutti legali, davanti ai ricorsi degli investitori per i servizi offerti a gruppi finiti in crisi quali, con Enron, anche Global Crossing.
« Si tratta del riconoscimento di una fondamentale ingiustizia — hanno detto ieri i portavoce della Andersen — Non crediamo di poter tornare a essere ciò che eravamo, ma sentiamo il dovere di ristabilire la verità » . La decisione, se non può risollevare Andersen, promette tuttavia significative ripercussioni per altre aziende. L'iniziale condanna aveva infatti messo in dubbio molte tradizionali pratiche di eliminazione di documenti. Con la Andersen si era schierata anche l'associazione degli avvocati difensori, spaventata dall'adozione di definizioni eccessivamente ampie del reato di ostruzione.
Il colpo di spugna sulla condanna rappresenta inoltre un ammonimento sul futuro per il governo, che del caso Enron e Andersen ha fatto una bandiera della campagna per la trasparenza e contro le truffe nella Corporate America. Ieri il vicesegretario alla Giusizia John Richter ha indicato che il governo « rimane convinto che anche le più potenti aziende debbano aderire alle leggi » .
E ha indicato che l'amministrazione sta considerando un nuovo processo con corrette istruzioni alla giuria. Ma lo schiaffo della Corte Suprema invita quantomeno a una miglior preparazione dei casi. Alla sbarra devono ancora salire personaggi cruciali dell'era degli scandali, a cominciare dall'ex chairman della Enron Kenneth Lay. Operai smontano l'insegna
http://www.assinews.it/rassegna/arti...010605ba5.html

[FaGal]

1 giugno 2005

Enron, la Corte suprema assolve Arthur Andersen

«Non colpevole». Con questo verdetto la Corte suprema degli Stati Uniti ha cancellato l’accusa mossa ad Arthur Andersen di aver distrutto parte della documentazione relativa a Enron prima del collasso del gigante energetico americano. I 9 giudici americani, all’unanimità, hanno stabilito che l’accusa di «ostruzione della giustizia», che ha fatto chiudere i battenti alla società di revisione, finita a costo zero nelle mani dei suoi concorrenti diretti, non aveva solide basi. «L’imputazione - si legge nelle motivazioni della sentenza preparata dal presidente della corte, William Rehnquist - è troppo vaga per determinare se Andersen abbia davvero intralciato il corso delle indagini». La decisione è un brutto colpo per l’amministrazione Bush che, dopo gli scandali finanziari degli anni scorsi, aveva fatto della caccia ai colletti bianchi artefici dei crack una delle sue priorità. Dopo il crollo di Enron, il Dipartimento di giustizia aveva iniziato le indagini proprio da Arthur Andersen. Il colosso energetico ha dichiarato bancarotta nel dicembre 2001, sei settimane dopo avere ammesso perdite superiori a quelle riportare in bilancio e aver fatto pesanti svalutazioni. A quel punto la Sec aveva iniziato a fare le pulci ai libri contabili, mentre Arthur Andersen aveva iniziato a distruggere tutti i documenti che, a suo dire, non erano importanti per il caso. I dipendenti della società di revisione, all’epoca guidata dall’amministratore delegato Joseph Berardino, secondo la Procura generale erano stati costretti a portare avanti una campagna di distruzione di documenti «senza precedenti». Nelle sue motivazioni, però, il giudice Rehnquist ha sottolineato che, nei vari gradi di giudizio in cui Arthur Andersen era stata ritenuta colpevole, ai giurati era stato chiesto di condannarla per il solo fatto di aver distrutto i documenti, e non per gli effetti che questo atto avrebbe prodotto sulle indagini. Gli avvocati della società di revisione hanno sempre fatto notare che la procedura è comune praticamente a tutte le aziende. Se la società di revisione avesse perso, molte corporate avrebbero rischiato di finire in tribunale per lo stesso motivo. O avrebbero dovuto organizzarsi con costosi sistemi di archiviazione.
http://www.assinews.it/rassegna/arti...010605ba5.html

[FaGal]

ARTHUR ANDERSEN LLP v. UNITED STATES

certiorari to the united states court of appeals for the fifth circuit

No. 04-368.Argued April 27, 2005--Decided May 31, 2005

As Enron Corporation's financial difficulties became public, petitioner, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. Petitioner was indicted under 18 U. S. C. §§1512(b)(2)(A) and (B), which make 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 affirmed, holding that the District Court's jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding" in §1512(b); that the jury need not find any consciousness of wrongdoing in order to convict; and that there was no reversible error.

Held: The jury instructions failed to convey properly the elements of a "corrup[t] persuas[ion]" conviction under §1512(b). Pp. 6-12.

(a) This Court's traditional restraint in assessing federal criminal statutes' reach, see, e.g., United States v. Aguilar, 515 U. S. 593, 600, is particularly appropriate here, where the act underlying the conviction--"persua[sion]"--is by itself innocuous. Even "persuad[ing]" a person "with intent to ... cause" that person to "withhold" testimony or documents from the Government is not inherently malign. Under ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the Government. Thus, §1512(b)'s "knowingly ... corruptly persuades" phrase is key to what may or may not lawfully be done in the situation presented here. The Government suggests that "knowingly" does not modify "corruptly persuades," but that is not how the statute most naturally reads. "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness, and "corrupt" and "corruptly" with wrongful, immoral, depraved, or evil. Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly ... corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability. See Aguilar, supra, at 602. Pp. 6-9.

(b) 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. The District Court based its instruction on the Fifth Circuit Pattern Jury Instruction for §1503, which defined "corruptly" as "knowingly and dishonestly, with the specific intent to subvert or undermine the integrity" of a proceeding. However, the court agreed with the Government's insistence on excluding "dishonestly" and adding the term "impede" to the phrase "subvert or undermine," so the jury was told to convict if it found petitioner intended to "subvert, undermine, or impede" governmental factfinding by suggesting to its employees that they enforce the document retention policy. These changes were significant. "[D]ishonest[y]" was no longer necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's factfinding ability. "Impede" has broader connotations than "subvert" or even "undermine," and many of these connotations do not incorporate any "corrupt[ness]" at all. Under the dictionary definition of "impede," anyone who innocently persuades another to withhold information from the Government "get[s] in the way of the progress of" the Government. With regard to such innocent conduct, the "corruptly" instructions did no limiting work whatsoever. The instructions also led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding. In resisting any nexus element, the Government relies on §1512(e)(1), which states that an official proceeding "need not be pending or about to be instituted at the time of the offense." It is, however, quite another thing to say a proceeding need not even be foreseen. A "knowingly ... corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. Cf. Aguilar, supra, at 599-600. Pp. 9-12.

374 F. 3d 281, reversed and remanded.

Rehnquist, C. J., delivered the opinion for a unanimous Court.


ARTHUR ANDERSEN LLP, PETITIONER v. UNITED
STATES

on writ of certiorari to the united states court of appeals for the fifth circuit

[May 31, 2005]

Chief Justice Rehnquist delivered the opinion of the Court.

As Enron Corporation's financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U. S. C. §§1512(b)(2)(A) and (B). These sections make it a crime to "knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person ... with intent to ... cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding."1 The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a "corrup[t] persuas[ion]" conviction under §1512(b), and therefore reverse.

Enron Corporation, during the 1990's, switched its business from operation of natural gas pipelines to an energy conglomerate, a move that was accompanied by aggressive accounting practices and rapid growth. Petitioner audited Enron's publicly filed financial statements and provided internal audit and consulting services to it. Petitioner's "engagement team" for Enron was headed by David Duncan. Beginning in 2000, Enron's financial performance began to suffer, and, as 2001 wore on, worsened.2 On August 14, 2001, Jeffrey Skilling, Enron's Chief Executive Officer (CEO), unexpectedly resigned. Within days, Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron's newly reappointed CEO, that Enron could "implode in a wave of accounting scandals." Brief for United States 2. She likewise informed Duncan and Michael Odom, one of petitioner's partners who had supervisory responsibility over Duncan, of the looming problems.

On August 28, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, petitioner had formed an Enron "crisis-response" team, which included Nancy Temple, an in-house counsel.3 On October 8, petitioner retained outside counsel to represent it in any litigation that might arise from the Enron matter. The next day, Temple discussed Enron with other in-house counsel. Her notes from that meeting reflect that "some SEC investigation" is "highly probable." Id., at 3.

On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement team. Odom urged everyone to comply with the firm's document retention policy.4 He added: " '[I]f it's destroyed in the course of [the] normal policy and litigation is filed the next day, that's great... . [W]e've followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.' " 374 F. 3d 281, 286 (CA5 2004). On October 12, Temple entered the Enron matter into her computer, designating the "Type of Potential Claim" as "Professional Practice--Government/Regulatory Inv[estigation]." App. JA-127. Temple also e-mailed Odom, suggesting that he " 'remin[d] the engagement team of our documentation and retention policy.' " Brief for United States 6.

On October 16, Enron announced its third quarter results. That release disclosed a $1.01 billion charge to earnings.5 The following day, the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to petitioner.

On the same day, Temple also sent an e-mail to a member of petitioner's internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron crisis-response team held a conference call, during which Temple instructed everyone to "[m]ake sure to follow the [document] policy." Brief for United States 7 (brackets in original). On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of "potential lawsuits, as well as the SEC inquiry." Ibid. After the call, Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents.

On October 26, one of petitioner's senior partners circulated a New York Times article discussing the SEC's response to Enron. His e-mail commented that "the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough." Id., at 8. On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents.

Throughout this time period, the document destruction continued, despite reservations by some of petitioner's managers.6 On November 8, Enron announced that it would issue a comprehensive restatement of its earnings and assets. Also on November 8, the SEC served Enron and petitioner with subpoenas for records. On November 9, Duncan's secretary sent an e-mail that stated: "Per Dave--No more shredding... . We have been officially served for our documents." Id., at 10. Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering.

In March 2002, petitioner was indicted in the Southern District of Texas on one count of violating §§1512(b)(2)(A) and (B). The indictment alleged that, between October 10 and November 9, 2001, petitioner "did knowingly, intentionally and corruptly persuade . . . other persons, to wit: [petitioner's] employees, with intent to cause" them to withhold documents from, and alter documents for use in, "official proceedings, namely: regulatory and criminal proceedings and investigations." App. JA-139. A jury trial followed. When the case went to the jury, that body deliberated for seven days and then declared that it was deadlocked. The District Court delivered an "Allen charge," Allen v. United States, 164 U. S. 492 (1896), and, after three more days of deliberation, the jury returned a guilty verdict. The District Court denied petitioner's motion for a judgment of acquittal.

The Court of Appeals for the Fifth Circuit affirmed. 374 F. 3d, at 284. It held that the jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding"; that the jury need not find any consciousness of wrongdoing; and that there was no reversible error. Because of a split of authority regarding the meaning of §1512(b), we granted certiorari.7 543 U. S. -- (2005).

Chapter 73 of Title 18 of the United States Code provides criminal sanctions for those who obstruct justice. Sections 1512(b)(2)(A) and (B), part of the witness tampering provisions, provide in relevant part:

"Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... cause or induce any person to ... withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding ... shall be fined under this title or imprisoned not more than ten years, or both."

In this case, our attention is focused on what it means
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."

"We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U. S. 207 (1985), and out of concern that '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,' McBoyle v. United States, 283 U. S. 25, 27 (1931)." United States v. Aguilar, 515 U. S. 593, 600 (1995).

Such restraint is particularly appropriate here, where the act underlying the conviction--"persua[sion]"--is by itself innocuous. Indeed, "persuad[ing]" a person "with intent to ... cause" that person to "withhold" testimony or documents from a Government proceeding or Government official is not inherently malign.8 Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U. S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences, see Trammel v. United States, 445 U. S. 40 (1980).

Nor is it necessarily corrupt for an attorney to "persuad[e]" a client "with intent to ... cause" that client to "withhold" documents from the Government. In Upjohn Co. v. United States, 449 U. S. 383 (1981), for example, we held that Upjohn was justified in withholding documents that were covered by the attorney-client privilege from the Internal Revenue Service (IRS). See id., at 395. No one would suggest that an attorney who "persuade[d]" Upjohn to take that step acted wrongfully, even though he surely intended that his client keep those documents out of the IRS' hands.

"Document retention policies," which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.

Acknowledging this point, the parties have largely focused their attention on the word "corruptly" as the key to what may or may not lawfully be done in the situation presented here. Section 1512(b) punishes not just "corruptly persuad[ing]" another, but "knowingly ... corruptly persuad[ing]" another. (Emphasis added.) The Government suggests that "knowingly" does not modify "corruptly persuades," but that is not how the statute most naturally reads. It provides the mens rea--"knowingly"--and then a list of acts--"uses intimidation or physical force, threatens, or corruptly persuades." We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. See United States v. X-Citement Video, Inc., 513 U. S. 64, 68 (1994) (recognizing that the "most natural grammatical reading" of 18 U. S. C. §§2252(a)(1) and (2) "suggests that the term 'knowingly' modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces"); see also Liparota v. United States, 471 U. S. 419 (1985). The Government suggests that it is "questionable whether Congress would employ such an inelegant formulation as 'knowingly ... corruptly persuades.' " Brief for United States 35, n. 18. Long experience has not taught us to share the Government's doubts on this score, and we must simply interpret the statute as written.

The parties have not pointed us to another interpretation of "knowingly ... corruptly" to guide us here.9 In any event, the natural meaning of these terms provides a clear answer. See Bailey v. United States, 516 U. S. 137, 144-145 (1995). "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness. See Black's Law Dictionary 888 (8th ed. 2004) (hereinafter Black's); Webster's Third New International Dictionary 1252-1253 (1993) (hereinafter Webster's 3d); American Heritage Dictionary of the English Language 725 (1981) (hereinafter Am. Hert.). "Corrupt" and "corruptly" are normally associated with wrongful, immoral, depraved, or evil. See Black's 371; Webster's 3d 512; Am. Hert. 299-300. Joining these meanings together here makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly ... corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of "culpability ... we usually require in order to impose criminal liability." United States v. Aguilar, 515 U. S., at 602; see also Liparota v. United States, supra, at 426.

The outer limits of this element need not be explored here because the jury instructions at issue simply 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 that its conduct was lawful, you may find [petitioner] guilty." App. JA-213. The instructions also diluted the meaning of "corruptly" so that it covered innocent conduct. Id., at JA-212.

The parties vigorously disputed how the jury would be instructed on "corruptly." The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for §1503. This pattern instruction defined "corruptly" as " 'knowingly and dishonestly, with the specific intent to subvert or undermine the integrity' " of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding "dishonestly" and adding the term "impede" to the phrase "subvert or undermine." Ibid. (internal quotation marks omitted). The District Court agreed over petitioner's objections, and the jury was told to convict if it found petitioner intended to "subvert, undermine, or impede" governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA-212.

These changes were significant. No longer was any type of "dishonest[y]" necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's factfinding ability. As the Government conceded at oral argument, " 'impede' " has broader connotations than " 'subvert' " or even " 'undermine,' " see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any "corrupt[ness]" at all. The dictionary defines "impede" as "to interfere with or get in the way of the progress of" or "hold up" or "detract from." Webster's 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government "get[s] in the way of the progress of" the Government. With regard to such innocent conduct, the "corruptly" instructions did no limiting work whatsoever.

The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding.10 In resisting any type of nexus element, the Government relies heavily on §1512(e)(1), which states that an official proceeding "need not be pending or about to be instituted at the time of the offense." It is, however, one thing to say that a proceeding "need not be pending or about to be instituted at the time of the offense," and quite another to say a proceeding need not even be foreseen. A "knowingly ... corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

We faced a similar situation in Aguilar, supra. Respondent Aguilar lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of " 'corruptly endeavor[ing] to influence, obstruct, and impede [a] ... grand jury investigation' " under §1503. 515 U. S., at 599. All the Government had shown was that Aguilar had uttered false statements to an investigating agent "who might or might not testify before a grand jury." Id., at 600. We held that §1503 required something more--specifically, a "nexus" between the obstructive act and the proceeding. Id., at 599-600. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding," we explained, "he lacks the requisite intent to obstruct." Id., at 599.

For these reasons, the jury instructions here were flawed in important respects. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[FaGal]

FOOTNOTES

Footnote 1

We refer to the 2000 version of the statute, which has since been amended by Congress.

Footnote 2

During this time, petitioner faced problems of its own. In June 2001, petitioner entered into a settlement agreement with the Securities and Exchange Commission (SEC) related to its audit work of Waste Management, Inc. As part of the settlement, petitioner paid a massive fine. It also was censured and enjoined from committing further violations of the securities laws. In July 2001, the SEC filed an amended complaint alleging improprieties by Sunbeam Corporation, and petitioner's lead partner on the Sunbeam audit was named.

Footnote 3

A key accounting problem involved Enron's use of "Raptors," which were special purpose entities used to engage in "off-balance-sheet" activities. Petitioner's engagement team had allowed Enron to "aggregate" the Raptors for accounting purposes so that they reflected a positive return. This was, in the words of petitioner's experts, a "black-and-white" violation of Generally Accepted Accounting Principles. Brief for United States 2.

Footnote 4

The firm's policy called for a single central engagement file, which "should contain only that information which is relevant to supporting our work." App. JA-45. The policy stated that, "in cases of threatened litigation, ... no related information will be destroyed." Id., at JA-44. It also separately provided that, if petitioner is "advised of litigation or subpoenas regarding a particular engagement, the related information should not be destroyed. See Policy Statement No. 780--Notification of Litigation." Id., at JA-65 (emphasis deleted). Policy Statement No. 780 set forth "notification" procedures for whenever "professional practice litigation against [petitioner] or any of its personnel has been commenced, has been threatened or is judged likely to occur, or when governmental or professional investigations that may involve [petitioner] or any of its personnel have been commenced or are judged likely." Id., at JA-29 to JA-30.

Footnote 5

The release characterized the charge to earnings as "non-recurring." Brief for United States 6, n. 4. Petitioner had expressed doubts about this characterization to Enron, but Enron refused to alter the release. Temple wrote an e-mail to Duncan that "suggested deleting some language that might suggest we have concluded the release is misleading." App. JA-95.

Footnote 6

For example, on October 26, John Riley, another partner with petitioner, saw Duncan shredding documents and told him "this wouldn't be the best time in the world for you guys to be shredding a bunch of stuff." Brief for United States 9. On October 31, David Stulb, a forensics investigator for petitioner, met with Duncan. During the meeting, Duncan picked up a document with the words "smoking gun" written on it and began to destroy it, adding "we don't need this." Ibid. Stulb cautioned Duncan on the need to maintain documents and later informed Temple that Duncan needed advice on the document retention policy.

Footnote 7

Compare, e.g., United States v. Shotts, 145 F. 3d 1289, 1301 (CA11 1998), with United States v. Farrell, 126 F. 3d 484, 489-490 (CA3 1997).

Footnote 8

Section 1512(b)(2) addresses testimony, as well as documents. Section 1512(b)(1) also addresses testimony. Section 1512(b)(3) addresses "persuade[rs]" who intend to prevent "the communication to a law enforcement officer or judge of the United States of information" relating to a federal crime.

Footnote 9

The parties have pointed us to two other obstruction provisions, 18 U. S. C. §§1503 and 1505, which contain the word "corruptly." But these provisions lack the modifier "knowingly," making any analogy inexact.

Footnote 10

We disagree with the Government's suggestion that petitioner's "nexus" argument is not preserved or that it is only subject to plain-error review for failure to comply with Federal Rule of Criminal Procedure 30(d). Petitioner plainly argued for, and objected to the instructions' lack of, a nexus requirement. See, e.g., Record 425 (arguing for a "nexus" and explaining that "it is insufficient for the government to show the defendant intended to affect some hypothetical future federal proceeding"); Record 931-932, 938; Tr. 4339-4345 (May 25, 2002). In so doing, it reasonably relied on language in United States v. Shively, 927 F. 2d 804, 812-813 (CA5 1991). Although the instruction petitioner proposed, based on Shively, does not mirror the nexus requirement it now proposes, its actions were sufficient to satisfy Rule 30(d). This argument also was preserved in the Court of Appeals, which recognized that petitioner was challenging "the concreteness of the defendant's expectations of a proceeding." 374 F. 3d 281, 298 (CA5 2004); see United States v. Williams, 504 U. S. 36, 41-42 (1992). However, the Court of Appeals did not address, and petitioner did not preserve, its argument that informal inquiries are not covered by the statute. See ibid.

[FaGal]

June 1, 2005
Reversal of Andersen Conviction Not a Declaration of Innocence
By KURT EICHENWALD

After yesterday's Supreme Court reversal of Arthur Andersen's conviction for obstruction of justice in the Enron case, there were rumblings among former Andersen partners and some legal analysts that this was the proof that the accounting firm should never have been indicted, much less found guilty.

Not so fast. While the reversal makes a retrial legally feasible, though unlikely, in truth the Supreme Court's judgment simply underscores the significance of a rule in white-collar cases: a jury cannot properly convict without first being required to conclude that a defendant had intended to engage in wrongdoing.

In its reversal, the Supreme Court focused on one issue: the jury charge given by Judge Melinda Harmon of Federal District Court in Houston that defined the standards and hurdles the jury had to clear to reach a guilty verdict. In her instructions to the jury, Judge Harmon "failed to convey the requisite consciousness of wrongdoing," Chief Justice William Rehnquist wrote in the unanimous opinion. "Indeed, it is striking how little culpability the instructions required."

The reason this is important is simple. White-collar cases are not akin to - and are, in fact, often the opposite of - trials involving murder or bank robbery, where everyone usually acknowledges that a crime took place and merely debate the culpability of a particular defendant. Instead, in white-collar cases, defense lawyers often admit their client's involvement in particular acts, while arguing that no crime ever occurred.

That is because a potential fraud or obstruction of justice is only illegal if the defendant acted with the knowledge and intent to commit a crime. Of course, this does not mean that a potential defendant must know the particulars of a 10b-5 securities law violation or the dictates of the obstruction laws; the government merely has to prove that actions were undertaken with the intent to deceive or with knowledge they were dishonest acts. In truth, it is hard to argue with the law's logic: no one should be locked away in prison as punishment for making a business misjudgment.

"Criminal intent is the heart of the white-collar case," said Stephen Ryan, a former federal prosecutor who is now a partner in Washington at Manatt, Phelps & Phillips. "A prosecutor has to lead a jury to believe that the defendants intended to commit a criminal act, with a criminal intent in mind."

Because the decision pertains solely to the jury instruction, the reversal yesterday says nothing about the quality of evidence marshaled by the Justice Department's Enron Task Force, which presented a range of proof about potential motive and intent. But the potential for reversal was set in motion once Judge Harmon agreed to the government's wording for the jury instructions. The instructions, the Supreme Court found, resulted in a jury being able to convict simply by making a finding that Andersen impeded the government's ability to find facts in the Enron case, without any requirement of concluding that there was dishonest motive.

In other words, even though the prosecution provided evidence of intent, and even though that evidence could have allowed a reasonable juror to conclude that Andersen acted dishonestly and with consciousness of wrongdoing, the instructions issued by Judge Harmon did not require the jurors to reach such a finding. As a result, the Supreme Court is essentially arguing, there is no way the appellate courts could know if the Andersen jury cleared the analytical hurdles necessary to conclude that the firm was guilty.

None of that, legal experts said, means that the Supreme Court ruling has cleared Arthur Andersen or demonstrated anything about whether it should have been indicted.

"The correctness of the jury instructions says very little about actual guilt of Arthur Andersen," said Stephen L. Meagher, a former prosecutor who now runs his own law firm in San Francisco. "What it does say is that the government may have a little bit harder time in proving guilt" if the case is retried.

Indeed, this is far from an unusual outcome. Many high-profile white-collar convictions - particularly those that emerged from the Wall Street insider trading and market manipulation scandals of the 1980's - fell apart on appeal on the very issue of lack of proof of criminal intent or poor jury charges on knowledge of wrongdoing.

Legal experts said that the reversal in the Andersen case might well result in more careful wording of jury instructions in future white-collar cases involving Enron and other high-profile defendants. But while that may raise the hurdle a bit for the government, these experts said, it is far from a crippling blow.

"It is certainly less likely that there will be a permissive jury instruction in Enron cases because of this ruling," Mr. Meagher said. "But the likelihood of conviction depends on the quality of the evidence, not the instruction. And the evidence of intent in the Enron cases looks a lot stronger than Andersen's ever did."

NYTIMES

[FaGal]

June 1, 2005
Justices Reject Auditor Verdict in Enron Scandal
By LINDA GREENHOUSE

WASHINGTON, May 31 - With a brief, pointed and unanimous opinion, the Supreme Court on Tuesday overturned Arthur Andersen's conviction for shredding Enron accounting documents as that company was collapsing in one of the nation's biggest corporate scandals.

The court held that the trial judge's instructions to the jury failed to require the necessary proof that Andersen knew its actions were wrong.

But the decision represents little more than a Pyrrhic victory for Andersen, which lost its clients after being indicted on obstruction of justice charges and has no chance of returning as a viable enterprise. The accounting firm has shrunk from 28,000 employees in the United States to a skeleton crew of 200, who are attending to the final details of closing down the partnership.

In its ruling, legal experts said, the Supreme Court did not ultimately settle the question of whether Andersen acted with criminal intent when it allowed many of Enron's accounting papers to be destroyed. But it made clear that prosecutors went too far by pressing District Judge Melinda Harmon in Houston to set such a low hurdle for the jury to reach a guilty verdict in the case in 2002.

"Indeed, it is striking how little culpability the instructions required," Chief Justice William H. Rehnquist said in his opinion for the court, issued just over a month after an argument in which justices across the ideological spectrum expressed great skepticism about the prosecution of Andersen. During the April 27 argument, Justice Antonin Scalia characterized the government's theory of the case as "weird."

The decision, Arthur Andersen v. United States, No. 04-368, was welcomed by both the criminal defense and corporate bars, which had joined together in friend of the court briefs to warn the justices that the government's position could imperil lawyers' efforts to provide a zealous defense for their clients.

The decision was "truly a slap in the face of the government for overreaching," Robin Conrad, a lawyer with the United States Chamber of Commerce, said in an interview.

Tuesday's ruling, despite coming long after Andersen has effectively gone out of business, does provide some sense of vindication for the firm's accountants.

A spokesman for Andersen, Patrick Dorton, said, "This decision represents an important step in removing an unjustified cloud over the professionalism and integrity of the people of Arthur Andersen."

Maureen E. Mahoney, who argued Andersen's case, said in an interview that the removal of criminal liability could help the firm in its defense against civil lawsuits and in seeking reimbursement from its insurers.

However those lawsuits end up, the demise of Andersen as a result of the Enron scandal clearly paved the way for broad changes in the accounting world: the creation of regulatory agencies, greater willingness of auditors to stand up to clients and, paradoxically, a lot more business for accountants and lawyers.

The Sarbanes-Oxley Act, approved by Congress months after Andersen's trial and intended to address a wave of corporate fraud, has led to considerable additional work for accounting and consulting firms, many of them well populated with Andersen alumni.

Technically, the decision sends the case back to the United States Court of Appeals for the Fifth Circuit, in New Orleans, which upheld the conviction last year, and leaves the Justice Department free to seek a retrial under new jury instructions requiring proof that Andersen officials were "conscious of wrongdoing" when they ordered documents destroyed.

An acting assistant attorney general, John C. Richter, said in a statement Tuesday that "we will carefully examine today's decision and determine whether to retry the case."

But a number of defense lawyers suggested that a retrial was unlikely because it would be meaningless in practical terms.

"The government gave the corporation a death sentence and the corporation died," Prof. Ellen Podgor, a white-collar criminal law specialist at Georgia State University School of Law, said in a telephone interview.

Andersen was prosecuted for destroying paper and electronic records of its auditing work for its major client, Enron, as the energy company was imploding in October 2001, shortly before the Securities and Exchange Commission opened a formal investigation.

The government based its case on a 1982 law, the Victim and Witness Protection Act, which makes it a crime for one party "knowingly" to "corruptly persuade" another to destroy documents "with intent" to make them unavailable "for use in an official proceeding."

In its defense, Andersen argued that it did nothing wrong, simply instructing employees to follow the firm's own rules for disposing of unnecessary documents.

In parsing the statute, Chief Justice Rehnquist observed that the act of persuasion, standing alone, "is by itself innocuous" and that withholding documents from the government is not "necessarily corrupt." And he added, citing three dictionaries, " 'Corrupt' and 'corruptly' are normally associated with wrongful, immoral, depraved, or evil."

Consequently, the chief justice said, "Only persons conscious of wrongdoing can be said to 'knowingly corruptly persuade.' "

Given its analysis of the statute, the court identified two flaws in how the case was sent to the jury. First, Justice Rehnquist said, the instructions "simply failed to convey the requisite consciousness of wrongdoing." Not only did the instructions fail to define "corruptly" as "dishonestly," he said, but they also permitted a conviction if prosecutors could show simply that Andersen had sought to "impede" a government proceeding. The trial judge granted the prosecutors' request to add "impede," a neutral term in the Supreme Court's view, to the phrase "subvert or undermine."

The other flaw in the instructions, according to the court, was the omission of a requirement for the jury to find a link between the document destruction and any particular official proceeding in which the documents would have been required to be produced. The S.E.C. served Enron and Andersen with subpoenas on Nov. 8, 2001, a month after the shredding had begun.

Beyond Andersen itself, the impact of the decision was uncertain. The Sarbanes-Oxley Act clarifies the obligation of companies to retain documents even in the absence of an imminent government proceeding and makes it unlikely that prosecutors will rely in the future on the statute the court interpreted in this decision.

And for all the costs associated with complying with the new law, accounting experts said, it has helped provide investors with far more reliable information than before the wave of corporate scandals that broke into the open with Enron's collapse.

"The firms stood like a brick wall against any meaningful reforms," said Lynn E. Turner, former chief accountant at the S.E.C. and now managing director of research at Glass, Lewis, an analytical research firm in San Francisco. "It was going to take some kind of cataclysmic, Titanic-type event to overcome their obstruction to what was needed to protect investors.

"It certainly didn't work out well for the people at Andersen and I feel for them," Mr. Turner added. "On the other hand, for investors it probably did work out better."

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[FaGal]

June 1, 2005
Decision Rekindles Debate Over Andersen Indictment
By JONATHAN D. GLATER and ALEXEI BARRIONUEVO

For Randy D. Robason, a former tax partner at Arthur Andersen, news that the Supreme Court had thrown out the accounting firm's nearly three-year-old conviction was too little and too late.

"You feel better for a second, then you realize what was lost as a result of the government's action," Mr. Robason said. "There's really not much else you can say."

Most Andersen partners, who scrambled to find work in the wake of the firm's conviction on a single obstruction of justice charge in 2002, thought the firm should never have been charged with a crime. The indictment led clients to flee the firm, which might have doomed it. But the conviction sealed the outcome.

The Supreme Court decision rekindled the debate over whether the firm should have been indicted. Prosecuting Andersen was viewed as controversial, but it was not unjustified either then or in hindsight, several lawyers said. After all, well before Enron's fraud was disclosed, Andersen had entered a settlement with securities regulators as a result of its role in fraud at Waste Management. And barely months after Andersen was convicted, another audit client, WorldCom, filed for bankruptcy protection. The reason was an $11 billion accounting fraud.

Nonetheless, the firm's collapse caused a lot of pain for its employees, most of whom had nothing to do with any of those audits.

"For the history of Andersen, this erases some of the sorrow that the longtime owners and employees felt," said Mr. Robason, now a partner at Grant Thornton, another accounting firm. "But it's not even a poor substitute for justice."

At its peak, Andersen employed almost 28,000 people in the United States and nearly 90,000 worldwide. The people whose names became so closely associated with Andersen's fate - Joseph Berardino, the chief executive initially reluctant to step down; Nancy Temple, the staff lawyer worried about compliance with the firm's document retention policy; and David Duncan, the angst-ridden former partner who, fired by Andersen, became a crucial government witness - have tried to move on. Others have long since scattered, some to other accounting firms, some to consulting firms, and some to new careers as nurses, consultants and restaurant owners.

Mr. Berardino, who declined to comment yesterday, now works for a private equity firm in New York.

Ms. Temple practices law in Chicago, no longer at a big firm.

Mr. Duncan, the partner who headed Andersen's Enron account, awaits sentencing, which has been postponed half a dozen times as the Justice Department pursues former Enron executives. He probably will remain free but in limbo until Jeffrey Skilling, the former Enron chief executive, and Kenneth Lay, the former chairman and founder, have their cases resolved.

Some Andersen alumni keep in close contact, using Internet chat rooms , e-mail lists and other tools.

"Not a week goes by where I don't get a, 'Hi Dan, what are you up to' sort of message from someone" at Andersen, said Dan Nottke, a former partner in Andersen's technology group who now is the chief information officer at Navigant Consulting in Chicago. He said that a group of former Andersen employees would be gathering on Saturday to relax at a restaurant in Chicago - perhaps one of the restaurants that a former colleague opened, he added.

Some of the roughly 200 Andersen employees who remain maintain the company's corporate conference center in St. Charles, Ill., known informally as Andersen U. The rest are administrative employees and lawyers handling the continuing civil suits.

Paradoxically, the push to reform corporate governance practices that grew out of the accounting debacles at Enron and WorldCom helped provide jobs for thousands of former Andersen auditors and consultants. With the help of a former Andersen client, a group of 13 Andersen investment consultants formed a firm called Altair Advisers, in Chicago.

"We knew our clients would be more inclined to follow us if we stayed together as a team," said Richard Black, a former Andersen principal and a founder and managing director at Altair. He said that 77 clients with $550 million in assets came to Altair, which now has 145 clients with $1.8 billion total assets.

"They were nuanced enough to know that we weren't all a bunch of crooks," he said.

Former Andersen business consultants also started the Huron Consulting Group, which last week was named the fastest-growing company in America by Entrepreneur magazine. One reason was the passage of the Sarbanes-Oxley Act in the wake of WorldCom's bankruptcy in 2002.

The law also benefited Protiviti, a subsidiary of Robert Half International created in 2002 by 760 Andersen internal auditors and risk managers. Now, the firm employs about 1,500 people worldwide.

But three years after Andersen's conviction, many people are still out of work or have found new work but not much satisfaction, said Jonathan Goldsmith, a former Andersen associate who runs a Web site, Andersenalumni.net, for former workers.

Yesterday, a torrent of e-mail from former Andersen workers flooded into the Web site, with writers criticizing the Department of Justice for bringing the case and clamoring to understand the Supreme Court decision, Mr. Goldsmith said. One former employee wrote, "Does this mean we can bring a class-action suit against the DOJ for ruining our lives?"

Several partners said they did not expect the Supreme Court decision to affect them directly. "Unfortunately, while this is a wonderful result, I don't think it lessens the severity," said Lisa T. Fair, formerly a tax partner in the Atlanta office of Andersen and now a tax partner for a unit of Deloitte Touche Tohmatsu.

Any potential liability from civil lawsuits filed by shareholders of companies Andersen audited will not be affected; those civil cases are based on Andersen's audit work, not on obstruction of justice. Andersen was charged after the firm disclosed that documents in its Houston office, which was most involved in the Enron audits, had been destroyed. Several jurors said after the verdict that they based their decision not on the shredding, but on an Andersen lawyer's alteration of a document.

Retired Andersen partners also stand to gain little from the Supreme Court decision yesterday, said Blair Fensterstock, a lawyer representing 130 retired partners who did not receive their portion of $190 million in retirement benefits.

Richard Corgel, a former Andersen partner based in Los Angeles who joined the firm's internal investigation of the Houston shredding and who now also works at Navigant, said that while many younger partners found work, the 2002 verdict was devastating to retired partners.

Andersen's settlement with WorldCom shareholders last month for $65 million, a relatively small amount of money compared with the size of the fraud, suggests that the firm does not have many assets left. Plaintiffs' lawyers reviewed the firm's own books before agreeing to that sum. Andersen still faces civil lawsuits for its audit work for other clients, including Enron.

Eric Dash contributed reporting for this article.

NY TIMES

[FaGal]

June 1, 2005
Andersen Ruling Could Aid Appeal of Former Banker
By ANDREW ROSS SORKIN

The Supreme Court's decision yesterday to overturn the conviction of Arthur Andersen may be a significant development for a different defendant: Frank P. Quattrone, the former investment banker who was convicted of obstruction of justice and witness tampering last year.

Mr. Quattrone, who is appealing the verdict, was convicted after sending an e-mail message to Credit Suisse First Boston's technology bankers in December 2000 endorsing a colleague's instructions that urged them to "clean up those files" and reaffirmed the company's document retention policy.

Prosecutors contended that Mr. Quattrone had just learned of a grand jury investigation into how the bank was allocating hot stock offerings and that he sent the message to try to keep crucial documents from being unearthed.

No essential documents were ever destroyed and the investigation never resulted in criminal charges against the bank or its employees except for the case against Mr. Quattrone.

The Supreme Court's reversal of the Anderson verdict may strengthen Mr. Quattrone's appeal because justices struck down language used in the jury instructions in the Andersen case that allowed for a conviction even if the defendant did not know it was doing anything illegal.

The judge in Mr. Quattrone's case used some similar language.

At one point, in regard to a witness tampering count against Mr. Quattrone, the judge told jurors "you do not have to find, and there is no requirement that you find, that the defendant knew a proceeding was in fact pending or was even about to be initiated at the time of the corrupt persuasion or misleading conduct."

In the Supreme Court's opinion yesterday, the court reiterated its position from an earlier ruling on a similar matter.

The court said also that document-shredding is routine, and so is legal advice that a person or company resist turning over documents, saying that such resistance "is not inherently malign."

Mr. Quattrone's rebuttal appeal brief was due yesterday, but he and his lawyers, with the consent of prosecutors, asked for an extension as a result of the Supreme Court ruling.

"The Supreme Court's decision in Andersen has important bearing on several arguments Quattrone made on appeal," wrote Christopher Hyde-Giampapa in a filing to the United States Court of Appeals for the Second Circuit.

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[FaGal]

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[FaGal]

High Court Blesses Document Policies in Andersen Case
Tony Mauro
Legal Times
06-01-2005


It may be cold comfort for decimated Arthur Andersen, but the Supreme Court ruled unanimously Tuesday that the accounting firm had been wrongly convicted for advising employees to abide by its document-retention policies in the face of impending investigations into its role in the Enron scandal.

In so doing, the Court gave a surprisingly strong blessing to document policies that are common throughout corporate America, and to the advice that lawyers give to clients every day about how helpful they need to be to government investigators.

"This is a very important decision for any lawyer who advises clients," said Georgia State University School of Law professor Ellen Podgor, a white-collar crime specialist. "It's a very strong message to the government that document-retention policies deserve respect."

She and others said the Court's disapproval of the jury instructions at issue in Tuesday's decision in Arthur Andersen v. United States may even undermine parts of the Sarbanes-Oxley law that largely replaced the law involved in the Andersen case.

Nonetheless, the Justice Department reacted to the decision by defending its case against Andersen and suggesting it might try to prosecute the firm again.

"The Justice Department's decision to charge Arthur Andersen was based at the time on the determination that the substantial destruction of documents in anticipation of an investigation by the Securities and Exchange Commission violated the law," said acting Assistant Attorney General John Richter in a statement issued Tuesday. "We will carefully examine today's decision and determine whether to re-try the case."

Because Andersen's in-house lawyers advised employees to abide by its document policies just days before an SEC investigation began -- and massive document shredding ensued -- the firm was convicted in 2002 of corruptly persuading its employees to withhold documents. The conviction carried a $500,000 fine, but led to the collapse of the firm's business, shrinking it from 85,000 employees to about 200 caretaker staffers at its Chicago offices.

Overturning that conviction is symbolically important, some legal experts said Tuesday, but may not change real-world practices.

"The world has changed forever since Enron. Nobody is going to send out a memo like that anymore, no matter what the Supreme Court ruled today," said Brian Cogan, a litigation partner at New York's Stroock & Stroock & Lavan who advises accounting firms. "But this does give comfort to in-house counsel that if they act in good faith in the advice that they give, they are not likely to be prosecuted."

Chief Justice William Rehnquist, writing for a unanimous Court, said the jury in Andersen's case had been improperly instructed about the meaning of the law under which it was prosecuted: 18 U.S.C. §1512, which makes it a crime to "knowingly . . . corruptly persuade" others to withhold documents from an official proceeding.

That wording, Rehnquist insisted, covers "only persons conscious of wrongdoing," not company lawyers who merely advise employees to withhold documents. That kind of advice is "not inherently malign," he said, using as an example a mother who advises her son to invoke his Fifth Amendment right against compelled self-incrimination.

"Nor is it necessarily corrupt for an attorney to persuade a client 'with intent to ... cause' that client to withhold documents from the government," Rehnquist continued. He cited the 1981 case Upjohn v. United States, in which the Court said Upjohn was justified in withholding attorney-client documents from the Internal Revenue Service. "No one would suggest that an attorney who persuaded Upjohn to take that step acted wrongfully."

Rehnquist also said, "It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document-retention policy under ordinary circumstances."

Rehnquist attacked the jury instructions, which said Andersen could be found guilty even if it "honestly and sincerely believed that its conduct was lawful." The chief justice said, "It is striking how little culpability the instructions required."

Another element of the crime, in the government's view, was that Andersen knew investigations were looming when it advised employees of the document policies. Rehnquist said no one can be guilty of the law "when he does not have in contemplation any particular official proceeding in which those documents might be material."

Paul Kamenar, senior executive counsel at the Washington Legal Foundation, said this aspect of the ruling could have an impact on future cases involving Sarbanes-Oxley, because that law covers corporate activities that occur in advance of any proceeding, whether or not the employees had the proceeding in mind. "Out of due process concerns, the Court might limit that scope," said Kamenar, who participated in a brief in the case for the foundation and the U.S. Chamber of Commerce.

Andersen issued a statement that combined a tone of satisfaction with resignation: "We are very pleased with the Supreme Court's decision, which acknowledges the fundamental injustice that has been done to Arthur Andersen and its former personnel and retirees. We pursued an appeal of this case not because we believed Arthur Andersen could be restored to its previous position, but because we had an obligation to set the record straight."

The statement also suggested the ruling could aid former Andersen officials who face civil lawsuits stemming from their Enron-related activities.

The ruling Tuesday was also a sign of Rehnquist's continued active role in the work of the Court despite his battle with thyroid cancer. The Andersen case was argued April 27, the last day of arguments in the current term. Rehnquist wrote a 12-page opinion that won unanimous support, and he summarized it with a strong voice from the bench.

"The swiftness and unanimity of the ruling not only underscores the symbolic importance of the Andersen decision, but that the chief justice remains the model of judicial efficiency," said Gregory Garre, head of Hogan & Hartson's appellate practice and a former Rehnquist law clerk.

The ruling also displayed Rehnquist's dry wit. The government had argued that in the sentence of the statute at issue, the word "knowingly" could not possibly modify the phrase "corruptly persuades" that appears later in the sentence, because the resulting combination of adverbs is an "inelegant formulation."

"Our experience has not taught us to share the government's doubts on this score," Rehnquist wrote, "and we must simply interpret the statute as written."

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