Arthur Anderson, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice
![handle is hein.journals/wasbur44 and id is 593 raw text is: Arthur Andersen, LLP and Martha Stewart: Should
Materiality be an Element of Obstruction of
Justice?
Ellen S. Podgor*
I. INTRODUCTION
Arthur Andersen, LLP, prosecuted for the crime of obstruction
of justice under 18 U.S.C. § 1512, and Martha Stewart, prosecuted for
several criminal charges including obstruction of justice under 18
U.S.C. § 1505, are presently appealing their convictions. These two
recent convictions have brought to the forefront the government's use
of powerful obstruction of justice statutes.
Although obstruction of justice statutes appear throughout the
United States Code,' the key obstruction of justice statutes are in
chapter 73 of title 18. This chapter includes an array of criminal stat-
utes that prohibit different types of obstructive conduct. For example,
specific obstruction of justice statutes pertaining to [i]nfluencing [a]
juror by writing,'2 [o]bstruction of court orders,'3 and [o]bstruction
of State or local law enforcement'4 appear in chapter 73. Obstructive
conduct to legislative bodies is commonly the subject of a § 1505 pros-
ecution.5 Congress also provides criminal penalties for specific types
of obstructive conduct such as [o]bstruction of criminal investigations
of health care offenses.'6 Recent additions by Congress, as a part of
the Sarbanes-Oxley Act, include obstruction related to [d]estruction,
alteration, or falsification of records in Federal investigations and
bankruptcy'7 and [d]estruction of corporate audit records.8
Clearly, prosecutors have many statutory choices in presenting
charges of obstruction of justice, and oftentimes more than one ob-
struction statute will apply to the conduct. The enormous discretion
afforded to prosecutors to choose charges, defendants, and whether to
even proceed with a prosecution, is magnified when prosecutors are
provided with several obstruction statutes that allow them to proceed
* Professor of Law, Georgia State University College of Law. The author wishes to thank
research assistants Shannon Varner Alexander and Jonathan Warren.
1. See, e.g., 26 U.S.C. § 7212 (2004) ([a]ttempts to interfere with administration of inter-
nal revenue laws).
2. 18 U.S.C. § 1504 (2004).
3. 18 U.S.C. § 1509 (2004).
4. 18 U.S.C. § 1511 (2004).
5. 18 U.S.C. § 1505 (2004) ([o]bstruction of proceedings before departments, agencies,
and committees); see also United States v. Poindexter, 951 F.2d 369, 388 (D.C. Cir. 1991) (re-
versing § 1505 conviction).
6. 18 U.S.C. § 1518 (2004).
7. 18 U.S.C. § 1519 (2004).
8. 18 U.S.C. § 1520 (2004).](ViewImageLocal?handle=hein.journals/wasbur44&div=29&collection=&method=preview&ext=.png&size=3)
Arthur Anderson, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice
Arthur Anderson, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice