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In the Andersen case, the DOJ accused Andersen of witness tampering, of 'knowingly corruptly persuading' others to withhold documents from an 'official proceeding'. Judge Harmon instructed the jury that 'knowingly corrupt persuasion' did not require any conscious wrongdoing. She instructed the jury that the term 'official proceeding' included the performance of 'any investigative activity, formal or informal, of any agency, that might be commenced at any future time for any reason, whether or not the actor had any reason to believe that specific agency activity was contemplated'. Judge Harmon ruled that even if muptiple copies of a document were saved, if one copy was destroyed, justice had been obstructed. Indeed the court excluded, as an irrelevant defense, evidence that Andersen's Enron engagement team preserved multiple copies of the very documents whose deletion the prosecution emphasized. Not surprisingly, the jury also never learned that the Enron frauds were all committed within Enron's off balance-sheet partnerships (SPEs), none of which were ever Andersen clients. All of the SPEs but one were audited by KPMG. Chewco/JEDI was unaudited.
7/15/19, 2:11 AM
Hon. Melinda Harmon

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