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Jurors in Arthur Andersen’s obstruction of justice trial sent out a flurry of notes on Thursday in their first day of deliberation after telling the Houston judge presiding over the case they were deadlocked and she ordered them back into the jury room. In one note, the jurors asked U.S. District Judge Melinda Harmon if individual jurors can believe different Andersen agents acted knowingly and with a corrupt intent. That may be an indication some of the jurors are leaning toward a guilty verdict. “It does suggest that,” concedes lead defense lawyer Russell “Rusty” Hardin Jr. of Houston. “Whether that’s what it means, you could come up with all sorts of scenarios.” “That first note is not a good note for the defense,” he said. Andersen, formerly Enron Corp.’s accounting firm, is on trial for obstruction of justice for destroying Enron-related documents last fall at a time when the Securities and Exchange Commission was investigating Enron. To find Andersen guilty, jurors must find that at least one “corrupt persuader” at Andersen persuaded others, or attempted to persuade others at Andersen to destroy documents to keep them from the SEC. The note the jurors sent out at about 9:30 a.m. Thursday asks, “If each of us believes that one Andersen agent acted knowingly and with a corrupt intent, is it for all of us to believe it was the same agent. Can one believe it was agent A, another believe it was agent B and another believe it agent C.” Prosecutors have attempted to convince jurors that at least four Andersen employees could be considered corrupt persuaders — David Duncan, formerly the head auditor on the Enron account, in-house lawyer Nancy Temple, and Michael Odom and Thomas Bauer, both Andersen partners in Houston. After hearing arguments on the corrupt persuader question, Harmon took case law offered by lawyers for both sides back to her chambers to read, but she did not announce a proposal before press time on Thursday. Argument on the issue will continue today. The jury also sent two more notes before noon, both asking for testimony. In note No. 10, the jury asked to see the videotape of a training session on Oct. 10, 2001, in which Odom told Andersen employees it would be “great” to destroy documents under the firm’s document retention and destruction policy prior to litigation. The jury also asked for the testimony of Amy Ripepi, a high-level Andersen partner from Chicago who testified May 10 and 13. The jury wants to hear testimony concerning an Oct. 20 conference call “and her understanding on or about that date including Temple’s comments on the document retention policy.” An e-mail Temple sent Oct. 12 to Odom was a reminder to follow the firm’s document retention and destruction policy. Odom forwarded the e-mail to Duncan, and he directed members of the Enron engagement team on Oct. 23 to follow the policy. Without objection from lawyers, Harmon decided to send a VCR into the jury room so jurors could watch the Odom video, which they first saw during the prosecution’s case May 20. The jurors also heard a large section of Ripepi’s testimony late on Thursday afternoon. In the fourth note sent Thursday, the jury asked to hear some of Duncan’s testimony, including his conversation with Richard Causey, an Andersen partner from Chicago, around Oct. 16 in connection with Andersen’s disagreement with Enron over the use of the word “non-recurring” in a press release about Enron’s third-quarter earnings report. The jury wants any reference in that testimony to discussions with Temple during that time. The jury also asked for Duncan’s testimony about an Enron-related conference call on Oct. 23. Lawyers decided late Thursday which of Duncan’s testimony to read to the jury. But shortly after 6 p.m., the jury asked to return to the hotel, so they will hear the testimony today. Because of the length of the deliberations, Hardin said the defense team would talk Thursday evening about whether and when to ask Harmon for a mistrial in the case. Harmon asked the lawyers to try to reach an agreement on which testimony to read to the jury, but they had not reported back to her before press time. The question about the corrupt persuaders may be one of the most important in the trial. Defense lawyer Denis McInerney, a partner in Davis, Polk & Wardwell of New York, told Harmon it is “the absolutely most critical issue in the case.” “You can’t have collective intent,” McInerney said. “The judge’s charge is clear on that — each element must be satisfied by at least one person,” McInerney argued. He said it would not be proper for the jury to find Andersen guilty if four of the jurors believe in-house lawyer Temple was a corrupt persuader, four believe Duncan was the corrupt persuader, and four others believe it was Odom, a practice director in Houston. McInerney said the judge’s instruction to the jury clearly supports the defense’s position. In the charge, Harmon told jurors, “This, in order to establish that Andersen is guilty as charged in the indictment, the government must prove, beyond a reasonable doubt, that each of the elements of the offense, as I will later explain them to you, was committed by one or more agents of Andersen acting within the scope of their employment with the firm.” But prosecutor Andrew Weissmann, an Assistant U.S. Attorney, said the issue is not intent, but instead the methods and means of a crime. “The case law is abundantly clear [that] the jurors must find beyond a reasonable doubt the elements of the crime and that’s it,” Weissmann argued. He said the jurors don’t need to agree on the same agent, and jurors need not apply the same evidence in deciding guilt or innocence. “Different jurors may be persuaded by different pieces of evidence … as long as they agree on the same bottom line, it’s not required they agree on the same actor,” he said. He cited a number of cases, including U.S. v. Armando Correa-Ventura, 6 F.3d 1070, a 5th U.S. Circuit Court of Appeals 1993 decision that holds that if one group of jurors deciding a case believes a defendant used one gun, and another group of jurors believed the defendant used another gun, it would not affect the unanimity of the verdict. “It’s not necessary to determine which firearm was used, just that a firearm was used,” Weissmann argued. “It goes to the methods and means of a crime. Prosecutors proposed telling the jurors that the answer to the first question in the corrupt persuader note is no and the second is yes, which is the exact opposite of the answers proposed by defense lawyers. “Each of you must find beyond a reasonable doubt that at least one agent of the defense acted with the required knowledge and intent. However, you need not all agree unanimously that it was the same agent of the defendant who acted with the required knowledge and intent,” the prosecution’s proposal read. The first note on Thursday was a sealed one from an individual juror. Harmon didn’t read it out loud, saying it was highly personal. Lawyers on both sides of the case said it wasn’t material. The trial started May 6. The jury got the case late in the evening of June 5, and the jurors were in their eighth day of deliberations Thursday. Andersen is charged with obstruction of justice for destroying documents related to its work for Enron at a time when the Houston energy trading company was under investigation by the SEC. The indictment alleges Andersen destroyed documents from Oct. 10 to Nov. 9, 2001, in its Houston, Chicago, Portland, Ore., and London offices. Andersen, formerly Enron’s accounting firm, was charged in March with obstruction of justice. While the verdict could be the death knell to Andersen, which already faces massive client defections after the downfall of Enron, the verdict is the first test of the Enron Task Force, which continues to investigate Enron. While the prosecutors have implicated the four individuals — Temple, Odom, Duncan and Bauer — Assistant U.S. Attorney Samuel Buell, a special attorney on the Enron Task Force, laid the blame for the destruction squarely on Andersen’s legal department. The defense contends no one at Andersen, including Duncan, intended to obstruct justice when destroying documents and any destruction of documents and e-mails was simply an effort to catch up on routine file maintenance outlined in the firm’s document retention and destruction policy. The prosecution called 19 witnesses; the defense called 15. The key witness of the trial was Duncan, who was on the stand for five days. Duncan pleaded guilty to obstruction in April and agreed to testify for the prosecution. While Duncan testified he pleaded guilty because he came to believe he committed a crime by asking others at Andersen to follow the firm’s document retention and destruction policy, he also testified he didn’t believe last fall that he was doing anything wrong. Lead defense lawyer Hardin, a partner in Rusty Hardin & Associates of Houston, attempted to convince the jury that Duncan pleaded guilty only after he met several times with prosecutors and government agents. Temple and Bauer were called by both sides, but both declined to testify and invoked the Fifth Amendment. Brenda Sapino Jeffreys is a senior reporter with Texas Lawyer , a division of American Lawyer Media and an affiliate of law.com.

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