USA v. Norris
| Decision Date | 22 June 2010 |
| Docket Number | Criminal Action No. 03-632. |
| Citation | 719 F.Supp.2d 557 |
| Parties | UNITED STATES of America v. Ian NORRIS. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED.
Lucy P. McClain, Kimberly A. Justice, Richard S. Rosenberg, United States Dept. of Justice, Philadelphia, PA, for United States of America.
Christopher M. Curran, Claire A. Delelle, J. Mark Gidley, White & Case LLP, Washington, DC, Joseph G. Poluka, Blank Rome LLP, Philadelphia, PA, for Ian Norris.
This case arises from a grand jury investigation of an international conspiracy to fix the price of certain electrical and mechanical carbon products that were sold in the United States and elsewhere between 1989 and May 2000, as well as an alleged scheme to obstruct the grand jury's investigation of that price fixing conspiracy by tampering with witnesses and withholding or destroying documents relevant to the grand jury investigation.
On September 28, 2004, a federal grand jury returned the Second Superseding Indictment (the “Indictment”) against Defendant Ian Norris (“Norris” or “Defendant”). The Indictment contains four counts: (1) Count One alleges a violation of the Sherman Act, 15 U.S.C. § 1; (2) Count Two alleges a violation of 18 U.S.C. § 371 for conspiring to violate two provisions of the witness tampering statute, 18 U.S.C. §§ 1512(b)(1) and (b)(2)(B) (Indictment ¶ 13); (3) Count Three alleges a violation of 18 U.S.C. § 1512(b)(1) for “corruptly persuad[ing]” and attempting to “corruptly persuade[ ]” other persons with the intent to “influence their testimony in an official proceeding” ( Id. ¶ 21); and (4) Count Four alleges a violation of 18 U.S.C. § 1512(b)(2)(B) for “corruptly persuad[ing] other persons” with the “intent to cause or induce those persons to alter, destroy, mutilate or conceal records and documents, with [the] intent to impair their availability for use in an official proceeding.” ( Id. ¶ 23).
Norris is a national of the United Kingdom. On March 23, 2010, Norris was extradited from the United Kingdom (“U.K.”) to the United States to face prosecution on Counts Two, Three, and Four. Under the terms of the U.K. Order for Extradition Pursuant to Section 93(4) of the Extradition Act 2003, dated September 22, 2008, Norris may not be prosecuted on Count One. On April 8, 2010, Norris appeared before the Court for arraignment on Counts Two, Three, and Four, at which time he entered a plea of not guilty to each of those Counts. Norris now moves to dismiss those Counts in their entirety (docs. no. 25, 38, 42).
In the first motion to dismiss, Defendant argues the entire Indictment should be dismissed, both for failure to state an offense and lack of subject matter jurisdiction (doc. no. 25). In the second motion to dismiss, Defendant argues the Indictment should be dismissed to the extent it violates the principle of specialty (doc. no. 38). In the third motion to dismiss, Defendant argues Counts II and IV should be dismissed to the extent these counts purport to state an offense based on the allegedly faulty paragraph 19(f) of the Indictment (doc. no. 42.) Each motion is analyzed in turn.
For the following reasons, the Court will deny the motions to dismiss.
The Indictment alleges, among other things, that between 1986 and October 2002, Norris was an executive of the UK-based The Morgan Crucible Company plc (“Morgan”). In 1998, Norris became the Chief Executive Officer of Morgan. During that same period, Morgan and its subsidiaries were engaged in the sale of carbon products in the United States (Indictment ¶ 6).
In April 1999, the Antitrust Division was conducting a federal grand jury investigation in the Eastern District of Pennsylvania into possible federal antitrust offenses committed by the Defendant and others involving carbon products sold by Morgan. ( Id. ¶ 12.) In the course of that investigation, the Division served Morganite, Industries, Inc. (“Morganite”), a U.S. subsidiary of Morgan, with a subpoena duces tecum requiring it and its affiliated companies to produce certain business records related to the carbon products industry. Following service of the subpoena, the Indictment alleges that Norris knowingly and wilfully conspired and agreed with others to corruptly persuade and attempt to corruptly persuade other persons with intent to influence their testimony in an official proceeding, and to corruptly persuade and attempt to corruptly persuade others with intent to cause or induce them to alter, destroy, mutilate or conceal records and documents with intent to impair their availability for use in an official proceeding. (
The Indictment alleges that, in carrying out this conspiracy, the Defendant and his co-conspirators: (1) provided false and fictitious relevant and material information in response to the grand jury investigation; (2) prepared a written “script” which contained false information which was to be followed by anyone questioned by either the Antitrust Division or the federal grand jury; and (3) distributed the script to others who had information relevant to the grand jury investigation with instructions to follow the script when answering questions posed by either the grand jury or the Antitrust Division. Moreover, the Indictment alleges that the conspirators removed, concealed, or destroyed from business files any documents which contained evidence of an anticompetitive agreement or reflected contacts between or among competitors, and persuaded, directed and instructed others to do the same. ( Id. ¶ ¶ 14-18.)
The Indictment further alleges that to achieve the goals of the conspiracy, the conspirators committed numerous overt acts, including the following: (1) the Defendant, in response to the subpoena duces tecum served on Morganite, asked a co-conspirator to assemble a task force to search through Morgan's business files and remove any documents that contained evidence of Morgan's price-fixing agreement or contacts with competitors; (2) instructed and directed employees of Morgan to remove and conceal or destroy such documents; (3) called several co-conspirators to a meeting in England and discussed the grand jury investigation, explored ways in which to justify or explain the meeting Morgan had with competitors, and prepared false summaries of those meetings, which falsely characterized them as joint venture meetings and which deliberately excluded any mention of the pricing discussions that occurred (“the script”); and (4) each of the co-conspirators agreed to follow the script when questioned during the investigation, and they distributed the script to the Morgan employees who engaged in price fixing. ( Id. ¶¶ 19(a)-(n).)
Moreover, allegedly in an effort to end the U.S. investigation, a co-conspirator provided the false script to an executive of a corporate price fixing co-conspirator with instructions to deliver the script to his co-workers who were potential witnesses because they had attended price fixing meetings with Morgan and Morgan had already disclosed their names to the authorities. The co-conspirator is also alleged to have instructed the executive to have his coworkers follow the script, treat it confidentially, and destroy it after it was distributed and read. Later, Defendant and co-conspirators met with the same executive to further attempt to persuade him to instruct his employees to adhere to the false script when giving testimony in the U.S. investigation as a means to put an end to the U.S. investigation and prevent it from spreading to Europe. ( Id. ¶¶ 19(u)-(ee)).
Defendant moves to dismiss the Indictment for three reasons: (1) the Indictment fails to state an offense; (2) the Court lacks subject matter jurisdiction and (3) extraterritorial application of § 1512(b) to Norris's conduct would violate his Fifth Amendment's Due Process rights. Each argument is analyzed in turn.
A district court may grant a pretrial motion to dismiss an indictment, or a portion thereof, if the indictment's allegations do not suffice to charge an offense. United States v. Panarella, 277 F.3d 678,...
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