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Crime www. NYLJ.com Monday, July 11, 2011 How Strong a Nexus Required for Witness Tampering? Third Circuit ‘Norris’ ruling suggests a looser standard.

endeavor must have the ‘natural and in Aguilar is really foreclosed under the By Jonathan S. Sack probable effect’ of interfering with the law as it has developed. and Curtis B. Leitner 2 due administration of justice.” Background NDER THE DISSENT’S theory, Since Aguilar, the nexus requirement a man could be found guilty has proved to be an important check From 1998 through 2002, Ian Norris ‘U[of obstruction of justice] on prosecutions brought under the was the CEO of the Morgan Crucible under §1503 if he knew of a pending federal obstruction statutes. In a Company (Morgan), headquartered in investigation and lied to his wife number of high-profile cases before the United Kingdom. about his whereabouts at the time of the Second Circuit, such as the sexual In April 1999, the Antitrust Division the crime, thinking that an FBI agent assault of Abner Louima,3 the murder of the Department of Justice (Division) might decide to interview her and of Sabatino Lombardi of the Genovese was conducting a federal grand jury that she might in turn be influenced crime family,4 and the prosecution investigation into antitrust violations in her statement to the agent by of Frank Quattrone,5 obstruction involving Morgan’s sale of carbon her husband’s false account of his convictions have run afoul of the products in the United States. whereabouts.”1 nexus requirement. The Division served on Morganite In United States v. Aguilar, the In general, obstruction prosecutions Industries, a U.S. subsidiary of Morgan, U.S. Supreme Court foreclosed this have attracted a great deal of attention a document subpoena requiring scenario under the omnibus clause of recently, as seen in the high-profile Morganite and its affiliates to produce 18 U.S.C. §1503, which makes it a crime criminal charges filed, and dismissed documents related to the carbon 8 to “endeavor[] to influence, obstruct, after the government’s case, against products industry. or impede, the due administration a former senior in-house attorney at After a lengthy and high-profile of justice.” The Court held that the GlaxoSmithKline.6 extradition battle, Norris was extradited law requires a “nexus” between A recent prosecution in the Third from the United Kingdom on charges an obstructive act and an official Circuit, United States v. Norris,7 raises of witness-tampering in violation of proceeding. “In other words, the serious questions about the strictness 18 U.S.C. §1512(b) and conspiracy to of Aguilar’s nexus test under the witness violate §1512(b). At trial, Norris was tampering statute, 18 U.S.C. §1512(b). acquitted on the substantive witness- Jonathan S. Sack, a partner at Morvillo, Abramowitz, This article explores the implications tampering charges, but convicted of Grand, Iason, Anello & Bohrer, was formerly chief of the conspiracy. Criminal Division, U.S. Attorney’s Office for the Eastern of Norris and explains why defense District of New York. Mr. Sack was retained as an expert counsel should reconsider whether the Beyond the most basic facts, the witness in the ‘Norris’ case discussed in this article. Curtis scenario contemplated by the majority prosecution and the defense sharply B. Leitner is an associate with the firm. disputed what occurred in response to Monday, July 11, 2011 the grand jury subpoena to Morganite agents questioned Aguilar, he lied that “an official proceeding need not and what various Morgan officers about his involvement in the habeas be pending or about to be instituted at intended. In its denial of Norris’s post- petition and his disclosure of the the time of the offense.”16 Nonetheless, trial motion for acquittal, the district wiretap. Moreover, Aguilar lied the Supreme Court held that §1512 court held that the government had with the knowledge that a grand imposes a nexus requirement: adduced sufficient evidence to prove jury was investigating the issues A “knowingly…corrup[t] the following version of events. he lied about.11 persaude[r]” cannot be someone After Norris was given a copy of the The Supreme Court held that the who persuades others to shred subpoena, he became concerned about evidence was insufficient to establish documents under a document a number of meetings at which Morgan the requisite nexus between Aguilar’s retention policy when he does had discussed price-fixing with its conduct and the grand jury proceeding. not have in contemplation any competitors in Europe. Norris met with The Court explained that “uttering false particular official proceeding in various Morgan employees, showed statements to an investigating agent… which those documents might be them the subpoena, and directed them who might or might not testify before a material.17 to create a series of false meeting grand jury” does not have the “natural Although the Court’s analysis summaries stating that the meetings and probable” effect of interfering makes clear that contemplation of a between Morgan and its competitors with a grand jury proceeding.12 Thus, particular proceeding is necessary were devoted to discussion of joint- Aguilar stands for the proposition that for a §1512(b) violation, the Court did venture plans and acquisitions, rather “if the defendant lacks knowledge not say whether mere contemplation than price-fixing. that his actions are likely to affect is sufficient. The Court just stated Norris and his co-conspirators agreed that some nexus is required.18 Thus, to repeat the cover story contained in In ‘United States v. Aguilar,’ Arthur Andersen left open whether the summaries if questioned about the §1512(b) requires that the defendant meetings. Morgan employees parroted the U.S. Supreme Court acted “in contemplation” of an official the summaries in interviews with required a ‘nexus’ between proceeding, or as required by Aguilar, Morgan’s outside counsel, and with an obstructive act and an that the defendant had “knowledge Norris’s consent, Morgan’s counsel that his actions [were] likely to affect” provided the meeting summaries to official proceeding under the an official proceeding. the Division.9 omnibus clause of 18 U.S.C. After ‘Arthur Anderson’ In his post-trial motion for acquittal, §1503. ‘Norris’ now raises Norris argued, among other things, In the wake of Arthur Andersen, three that the evidence showed at most serious questions about the circuit courts, including the Second a conspiracy to influence Morgan’s strictness of this nexus test Circuit, have strongly suggested that outside counsel and Division attorneys, under the witness tampering Aguilar’s “likely to affect” standard 10 19 not testimony before a grand jury. statute, 18 U.S.C. §1512(b). applies to §1512(b). Indeed, the Therefore, Norris argued, the Division Second Circuit vacated Frank did not prove a nexus between Norris’s Quattrone’s conviction under §1512(b) corrupt agreement and the object of the judicial proceeding, he lacks the because the district court instructed the charged conspiracy. requisite intent to obstruct.”13 the jury that the nexus requirement, In Arthur Andersen v. United States, that Quattrone was “aware[] that High Court’s Key Obstruction the Supreme Court addressed the Rulings [his] conduct was likely to affect the nexus requirement in the context of proceeding,” did not apply.20 Norris’s nexus argument turns on the 18 U.S.C. §1512(b), which punishes In addition, several circuit courts interpretation of two key U.S. Supreme anyone who “knowingly…corruptly have also extended Aguilar’s nexus Court decisions on the breadth of persuades another person…with requirement to the omnibus obstruction the obstruction statutes, Aguilar and intent to (1) influence…the testimony provision of §1512(c),21 which punishes United States v. Arthur Andersen. of any person in an official proceeding,” anyone who “corruptly…obstructs, In Aguilar, the defendant, a district or “(2) cause…any person to…impair influences or impedes any official judge, was under investigation for [an] object’s integrity or availability proceeding.”22 In a recent case in attempting to influence the outcome for use in an official proceeding.”14 the Eleventh Circuit, United States v. of a habeas petition before another Unlike §1503, which requires an Friske,23 the court strictly applied the judge in his district, and improperly ongoing judicial proceeding at the nexus requirement to §1512(c). disclosing a wiretap. When two FBI time of the offense,15 §1512 provides A friend of Friske, who was in jail Monday, July 11, 2011 pending drug charges for a marijuana- that Aguilar’s nexus standard applies establish the requisite connection growing operation, asked Friske to do to §1512(b).28 The Division contended between Norris’s false meeting a “little repair job” under the pool deck that it had to prove only that Norris summaries and testimony before at the friend’s house. After hearing a “contemplated a particular proceeding, the grand jury. Jack Kroef, a Morgan recording of the conversation, law even if it was not yet instituted.”29 executive, testified as to the scope of enforcement agents went to the friend’s The district court held that Arthur the conspiracy: house and recovered $375,000 from Andersen “did not adopt precisely Q: [Y]ou memorized the notes for under the pool deck. the same nexus requirement [as what purpose? Friske was later found at the Aguilar]—it merely stated that one A: To be used later, if you would house attempting to recover the is required and that the defendant be questioned. money. He was convicted under must have some contemplation of Q: Questioned by who? §1512(c) for attempting to obstruct the official proceeding he or she is A: By—it could be anybody.35 a forfeiture proceeding against his charged with obstructing.”30 Although Relying on Kroef’s testimony, the friend. Notwithstanding the seemingly the district court did not specify the Third Circuit found sufficient evidence common sense inference that the applicable nexus test under §1512(b), that the false meeting summaries “were government would likely seek to the court analyzed the sufficiency of to be used by Morgan’s employees recover his friend’s ill-gotten profits, the evidence under the Division’s if ‘questioned…by anybody,’” and the court reversed Friske’s conviction proposed “contemplation” standard. therefore, “a rational trier of fact because there was “no evidence that The court found sufficient evidence could certainly conclude that Norris Friske knew his actions were likely to to conclude that Norris and his corruptly persuaded others with affect a forfeiture proceeding.”24 co-conspirators agreed to misrepresent the intent to influence their grand In contrast, the Third Circuit has Morgan’s price-fixing meetings “via jury testimony.”36 The ease with suggested that a more permissive false non-contemporaneous scripts which the Third Circuit dispatched nexus standard applies to §1512(b). In they and others were to parrot when Norris’s nexus argument is troubling; United States v. Vampire Nation,25 the questioned.”31 This evidence satisfied it certainly suggests that the court was defendant was charged with corruptly §1512(b), according to the court, not concerned with the district court’s persuading his fraud victim to withhold because the jury could reasonably infer apparent relaxation of the important a forged check from the grand jury. that Norris and his co-conspirators nexus requirement.37 The district court did not specifically acted with “the purpose of influencing instruct the jury on the nexus testimony they believed might be given A Different Standard? requirement. The court’s instructions to the grand jury—i.e., the knowledge It is difficult to square the district provided that the defendant must have required to effectuate a violation of court’s and the Third Circuit’s “acted knowingly and with the specific Section 1512(b)(1).”32 reasoning in Norris with Aguilar’s intent to cause or induce any person The court cited evidence that nexus requirement. to withhold a record document…from Norris wanted various employees of Aguilar held that lying to a an official proceeding.”26 Morgan to tell a cover story when government investigator who “may or On plain error review, the Third Circuit questioned.33 But the evidence was at may not testify before the grand jury” held that this instruction adequately best ambiguous as to whether these does not establish the requisite nexus conveyed the nexus requirement: “We employees believed they might be to obstruct grand jury proceedings. read this instruction as requiring the interviewed by the government or Yet Kroef’s “it could be anybody” jury to find some connection—i.e., a actually testify in the grand jury, and testimony suggests, at most, that nexus—between [the defendant’s] the court did not cite evidence that Norris intended to influence a wide actions and an official proceeding.”27 Norris thought these witnesses were variety of persons, e.g., outside Of course, “some connection” is not “likely” to testify before the grand counsel, Division investigators, and necessarily the same as “contemplation jury. The closest the court came to witnesses to Morgan’s price-fixing of” an official proceeding, must less connecting Norris’s conduct to grand meetings, who “may or may not” testify conduct that is “likely to affect” an jury testimony was its assertion before the grand jury. The testimony official proceeding. that, based on Norris’s review of the says nothing about whether Norris and The ‘Norris’ Rulings subpoena for documents, he was his co-conspirators had knowledge that “aware people could be called to testify the persons they influenced were likely Norris’s post-trial motion for acquittal in the grand jury proceedings.”34 to testify before the grand jury. squarely raised the issue left open by The Third Circuit affirmed in a brief, By citing to Kroef’s “it could be Arthur Andersen: what kind of nexus is non-precedential opinion. The court anybody” testimony without further required by §1512(b)? Norris argued cited a single piece of evidence to explanation, the Third Circuit Monday, July 11, 2011 suggested that the district court’s Bruno, between the intention to lie to 20. United States v. Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (emphasis added). use of a looser nexus standard under government investigators or potential 21. See United States v. Friske, —F.3d—, 2011 WL 1878776, §1512(b) was appropriate. witnesses on the one hand, and the at *3 (11th Cir. 2011); Phillips, 583 F.3d at 1264; United States v. Reich, 479 F.3d 179, 186 (2d Cir. 2007). The Third Circuit’s affirmance may intention to pass one’s lies to a grand 22. 18 U.S.C. §1512(c). also reflect acceptance of a relaxed jury on the other. 23. United States v. Friske, —F.3d—, 2011 WL 1878776 (11th Cir. 2011). specific intent standard. Proof of a Conclusion 24. Id. at *4. The “likely to affect” standard is given further conspiracy requires that the defendant support by the U.S. Supreme Court’s recent interpretation of enter into an agreement for the The Norris conviction is a wake up the “federal nexus” required by 18 U.S.C. §1512(a)(1). Section 1512(a)(1) punishes “[w]hoever kills or attempts to kill specific unlawful purpose required call to defense counsel. The defense another person, with intent to…prevent the communication for the substantive offense that is bar cannot take for granted that the by any person to a law enforcement officer or judge of the 38 strictures of Aguilar will be applied to United States of information relating to the commission or the object of the conspiracy. This possible commission of a Federal offense” (emphasis added). specific intent element has been an the witness tampering statute, or other In Fowler v. United States, 131 S. Ct. 2045 (2011), the Court obstruction provisions. It remains held that when the murderer has no identifiable federal important limitation in obstruction of officer in mind, it is insufficient for the government to show justice prosecutions. an open question how far courts that it was “reasonably possible” that the communication might be willing to stretch the nexus the murder was intended to prevent would have been with For example, in United States v. a federal officer. Instead, the Court required a tighter link Schwarz, arising from the assault requirement in §1512(b) cases. between the obstructive conduct and the federal officer: “… on Abner Louima, the Second Adoption of a weak nexus test, the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement Circuit reversed the defendants’ such as mere “contemplation,” would officers, at least one relevant communication would have conspiracy conviction under §1503 vastly expand the reach of §1512. If been made to a federal officer.” Id. at 2052. (emphasis in a husband lies to his wife about his original). because “there was no showing that 25. United States v. Vampire Nation, 451 F.3d. 189, 205 (3d [a co-conspirator]…knew that the whereabouts at the time of his crime, Cir. 2006). expecting that she will repeat his 26. Id. at 205. allegedly false statements he made 27. Id. (emphasis added). to the federal investigators…would false alibi to “anybody” who asks, 28. Norris, 753 F.Supp. 2d at 506. 39 including investigators who might 29. Government Brief at 5, United States v. Norris, No. 03- be conveyed to the grand jury.” 362, 2010 WL 4872987 (E.D. Pa. 2010) (emphasis added). The Second Circuit made the same testify before the grand jury, does 30. Norris, 753 F.Supp. 2d at 506-07. point in United States v. Bruno, a he not act in contemplation of an 31. Id. at 508. 32. Id. at 509 (emphasis added). Genovese crime family case, in which official proceeding? Depending on 33. See id. at 508-10. the defendants lied to relatives about the trajectory of §1512(b) case law, 34. Id. at 507 n.7 (emphasis added). Aguilar’s hypothetical may not be a 35. Joint Appendix at 1230-31,United States v. Norris, No. their participation in a mob-related 10-4658, 2001 WL 1035723 (3d Cir. March 23, 2011). shooting. The court reversed their stretch; it could be the law. 36. Norris, 2011 WL 1035723, at *3. 37. Interestingly, neither the district court nor the Third convictions for conspiracy under ••••••••••••••••••••••••••••• Circuit cited arguably important evidence that Norris §1503 because no evidence suggested believed his actions were “likely to affect” the grand jury that the defendants “intended that 1. United States v. Aguilar, 515 U.S. 593, 602 (1995). proceedings: Norris was aware that Morgan’s outside 2. Id. at 599. counsel had told that Division that counsel was willing the statements they made…to their 3. United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002). to make Norris and his associates available for testimony respective relatives would eventually 4. United States v. Bruno, 383 F.3d 65 (2d Cir. 2004). before the grand jury. See Joint Appendix at 3279-80, United States v. Norris, No. 10-4658, 2011 WL 1035723 (3d Cir. March 40 5. United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006). be passed along to the grand jury.” 6. See United States v. Lauren Stevens, Case No. 10-00694 23, 2011). The fact that neither court saw a need to cite this Norris’s conspiracy had the same (filed Nov. 8, 2010). evidence highlights the apparent lowering of the nexus 7. See United States v. Norris, No. 10-4658, 2011 WL 1035723 standard they applied. object as the conspiracies charged (3d Cir. March 23, 2011). 38. Schwarz, 283 F.3d at 108; United States v. Schramm, 75 in Schwarz and Bruno: to influence 8. United States v. Norris, 719 F. Supp. 2d 557, 561 (E.D. F.3d 156, 159 (3d Cir. 1996). Pa. 2010). 39. Schwarz, 283 F.3d at 109. testimony before the grand jury. 9. See United States v. Norris, 753 F.Supp. 2d 492, 508-09 40. Bruno, 383 F.3d at 88. The district court and the Third (E.D. Pa. 2010); see also United States v. Norris, 2011 WL 41. Arthur Andersen, 544 U.S. at 708 (emphasis added). Circuit, however, seemed to accept 1035723, at *3-*4 (3d Cir. 2011); United States v. Norris, 722 v F.Supp.2d 632, 635 (E.D. Pa. 2010). the validity of inferring the requisite 10. Norris, 2010 WL 4872987, at *5. specific intent from Kroef’s “it could 11. United States v. Aguilar, 515 U.S. 593, 600-01 (1995); see also id. at 596-97. be anybody” testimony. 12. Id. at 600-01. It is questionable whether this 13. Id. at 599. 14. 18 U.S.C. §§1512(b)(1) and 1512(b)(2)(B). testimony constitutes evidence that 15. United States v. Reed, 773 F.2d 477, 485 (2d Cir. 1985); Norris contemplated a “particular United States v. Nelson, 852 F.2d 706, 710 (3d Cir. 1988). 16. 18 U.S.C. §1512(f). official proceeding,” as required by 17. Arthur Andersen v. United States, 544 U.S. 696, 707-08 41 Arthur Andersen. More importantly, (2006). Norris 18. See United States v. Byrne, 435 F.3d 16, 25 (1st Cir. the decisions in glossed over 2006). the distinction, which was emphasized 19. See United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009); United States v. Kaplan, 490 F.3d 110, 125 (2d Cir. Reprinted with permission from the July 11, 2010 edition of the NEW YORK by both the Supreme Court in Aguilar LAW JOURNAL© 2010 ALM Media Properties, LLC. All rights reserved. Further 2007); United States v. Matthews, 505 F.3d 698, 708 (7th Cir. duplication without permission is prohibited. For information, contact 877-257- and the Second Circuit in Schwarz and 2007). 3382 or [email protected]. # 070-07-11-12