A NEW YORK LAW JOURNAL SPECIAL SECTION White-Collar 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.