1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 03-632 

v. :

:

IAN NORRIS :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. NOVEMBER 30, 2010

TABLE OF CONTENTS

I. INTRODUCTION...............................................2

II. BACKGROUND.................................................3

III. MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29...........6

A. Legal Standard........................................6

B. Discussion............................................8

1. Import of Defendant’s Acquittal on the Objects of

the Charged Conspiracy...........................9

2. Sufficiency of the Evidence to Establish a

Conspiracy Conviction for Either of the Charged

Objects.........................................11

i. The Evidence Pertaining to Section

1512(b)(1).................................12

a. Appropriate legal standard............13

b. Sufficiency of the evidence based on the

applicable legal standard.............23

ii. The Evidence Pertaining to Section

1512(b)(2)(B)..............................28

3. Validity of the Charge for Which Defendant was

Convicted.......................................33

IV. MOTION FOR A NEW TRIAL UNDER RULE 33......................36

A. Defendant’s Argument that the Verdict is Against the

Weight of the Evidence...............................37

1. Legal Standard..................................37

2. Discussion......................................38

B. Defendant’s Argument that Fundamental Errors were

Committed During Trial...............................44

1. Legal Standard..................................45

2. Errors in the Jury

Instructions....................................45

i. Failure to Identify the Overt Acts Defendant

Took in Furtherance of the Conspiracy......47

ii. Alleged Constructive Amendment of the
2

Indictment via the Preliminary

Instructions...............................50

iii. Failure to Give an Instruction on the Right

to Withhold Testimony......................53

iv. Alleged Error in the “Nexus” Requirement

Instruction................................55

v. Failure to Distinguish in the Instructions

Between “Influencing” and

“Preventing”...............................57

vi. Failure to Give a Missing Witness

Instruction................................60

3. Attorney Testimony in Violation of Defendant’s

Attorney-Client Privilege.......................63

4. Failure to Comply with Discovery

Obligations.....................................70

i. Legal Standard.............................71

ii. Discussion.................................72

5. Prosecutorial Misconduct in the Antitrust

Division’s Closing Argument and

Rebuttal........................................76

i. Reference to Facts Outside the

Record.....................................77

ii. Turning the Verdict into a Referendum on the

Prosecutor’s Work on the

Case.......................................80

V. CONCLUSION................................................86

I. INTRODUCTION

Defendant, Ian Norris (“Defendant”), is a national of

the United Kingdom who is subject to prosecution in the United

States under an extradition agreement. On September 28, 2004, a

federal grand jury returned the second superseding indictment

(“Indictment”) against Defendant. The Indictment followed an

investigation of an international conspiracy to fix the price of

carbon products. It charged Defendant with four counts: (1)

Count One—violating the Sherman Act; (2) Count Two—conspiring, in

violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 1512(b)(1)
3

and 18 U.S.C. § 1512(b)(2)(B); (3) Count Three—violating 18

U.S.C. § 1512(b)(1); and (4) Count Four—violating 18 U.S.C. §

1512(b)(2)(B). Because Defendant’s extradition order barred

prosecution under the Sherman Act, Defendant was only tried on

Counts Two, Three, and Four. Following a seven day trial, the

jury found Defendant guilty on Count Two, but acquitted Defendant

on Counts Three and Four. Presently before the Court is

Defendant’s motion for a judgment of acquittal or, in the

alternative, a new trial. 

For the reasons discussed below, the Court will deny

Defendant’s motion.

II. BACKGROUND

Because the Court has already outlined the background

surrounding this case, see United States v. Norris, --- F. Supp.

2d ----, No. 03-632, 2010 WL 2553620 (E.D. Pa. June 22, 2010)

(“Norris I”), it is unnecessary to recite those facts at any

length. In short, Defendant was charged with obstructing justice

in violation of Section 1512(b)(1) and Section 1512(b)(2)(B) and

conspiring to do the same:

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
4

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. at *2. The scripts Defendant participated in creating sought

to cast as legitimate price-fixing meetings between Morgan, the

carbon products company for whom Defendant served as CEO during

the time in question, and three of its competitors; namely, (1)

Carbone; (2) Schunk; and (3) Hoffman.

Defendant’s trial began on July 13, 2010. The

Antitrust Division called nine witnesses in support of its case: 

(1) Robin Emerson; (2) Melvin Perkins; (3) Donald Muller; (4)

Jack Kroef; (5) Thomas Hoffman; (6) Heinz Volk; (7) Sutton Keany;

(8) William Macfarlane; and (9) Helmut Weidlich. Perkins, Kroef,

Muller, Macfarlane and Emerson were Morgan employees who worked

with Defendant in varying capacities. Volk and Weidlich were

Schunk employees. Hoffman was responsible for Hoffman’s United

States operations. Keany was the attorney who conducted an

investigation into Morgan’s price-fixing involvement after

Morgan’s United States subsidiary, Morganite, was served with a

grand jury subpoena on April 27, 1999.

After the Antitrust Division rested, Defendant moved

for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29(a). The Court denied Defendant’s motion. 
Defendant’s opening memorandum contains 175 substantive 1

pages totaling roughly 60,000 words. Defendant has also moved

for leave to file a reply memorandum, submitting a proposed

memorandum containing 105 substantive pages totaling roughly

35,000 words. This type of indiscriminate advocacy, lacking a

sense of priority or proportion, has not been helpful to the

Court in clarifying the issues subject to post-trial review. See

5

Thereafter, Defendant called one witness, Michael Cox, who was

also a Morgan employee during the time in question. On July 22,

2010, the Court charged the jury. As to Count Two, the verdict

form the Court provided asked the jury to determine whether

Defendant was guilty of conspiracy to obstruct justice for either

of the following two reasons:

(a) knowingly corruptly persuading or knowingly attempting to

corruptly persuade other[] persons with intent to influence

their testimony in the grand jury proceeding in the Eastern

District of Pennsylvania; or (b) knowingly corruptly

persuading or knowingly attempting to corruptly persuade other

persons with intent to cause or induce those other persons to

destroy or conceal records and documents with the intent to

impair the availability of those records and documents for use

in the grand jury proceeding.

(Doc. no. 149.)

Three business days later, on July 27, 2010, the jury

returned a verdict finding Defendant guilty on Count Two of the

Indictment. Thus, the jury found Defendant conspired to violate

either Section 1512(b)(1) or Section 1512(b)(2)(B). The jury,

however, acquitted Defendant on the substantive charges of

violating both of those statutes as charged in Counts Three and

Four. Pointing to this apparent inconsistency and raising a

variety of other issues for this Court to resolve, Defendant now 1
Marson v. Jones & Laughlin Steel Corp., 87 F.R.D. 151, 152 n.*

(E.D. Wis. 1980) (“(1) The story of the creation of the world is

told in the book Genesis in 400 words; (2) The world’s greatest

moral code, the Ten Commandments, contains only 279 words; (3)

Lincoln’s immortal Gettysburg address is but 266 words in length;

(4) The Declaration of Independence required only 1,321 words to

establish for the world a new concept of freedom. Together, the

four contain a mere 2,266 words.” (emphasis added)). 

Nevertheless, in the interests of justice and given that the

Antitrust Division was afforded an opportunity to surreply, the

Court will grant Defendant’s motion for leave to file the reply

memorandum and consider the arguments advanced therein.

6

moves for a judgment of acquittal under Rule 29 of the Federal

Rules of Criminal Procedure or, alternatively, a new trial under

Rule 33 of the Federal Rules of Criminal Procedure. The

respective arguments are addressed in turn.

III. MOTION FOR A JUDGMENT OF ACQUITTAL UNDER RULE 29

A. Legal Standard

In deciding a motion for a judgment of acquittal under

Rule 29, the court views the evidence introduced at trial in the

light most favorable to the Government and upholds the jury’s

verdict so long as any rational trier of fact “‘could have found

proof of guilt beyond a reasonable doubt based on the available

evidence.’” United States v. Smith, 294 F.3d 473, 476 (3d Cir.

2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir.

2001)). “The court is required to ‘draw all reasonable

inferences in favor of the jury’s verdict.’” Id. (quoting United

States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996)). The court
7

may not “usurp the role of the jury” by weighing the evidence or

assessing the credibility of witnesses. United States v. Brodie,

403 F.3d 123, 133 (3d Cir. 2005) (citing United States v.

Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc); and 2A

Charles A. Wright, Federal Practice & Procedure (Crim. 3d) § 467,

at 311 (2000)). Thus, the defendant bears an “extremely high”

burden when challenging the sufficiency of the evidence

supporting a jury verdict, United States v. Iglesias, 535 F.3d

150, 155 (3d Cir. 2008) (internal marks omitted) (quoting United

States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005)), and the

Government “may defeat a sufficiency-of-the-evidence challenge on

circumstantial evidence alone.” Id. at 156 (citing United States

v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)). A finding of

insufficiency should therefore “‘be confined to cases where the

prosecution’s failure is clear.’” Smith, 294 F.3d at 477

(quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.

1984)).

Where, as here, the indictment charges a conspiracy to

commit several federal crimes, the jury’s verdict will be upheld

so long as the jury could rationally find the defendant conspired

to commit at least one of the crimes at issue. See Griffin v.

United States, 502 U.S. 46, 59-60 (1991) (concluding a general

guilty verdict on a multiple-object conspiracy charge may stand

even if there is insufficient evidence as to one object of the
8

alleged conspiracy); Mod. Crim. Jury Instr. 3d Cir. 6.18.371C

(“The government . . . must prove that [the conspirators] agreed

to commit at least one of the object crimes . . . .”). Thus, to

prevail on his motion for a judgment of acquittal, Defendant must

establish that no rational jury could find beyond a reasonable

doubt that Defendant conspired to violate either Section

1512(b)(1) or Section 1512(b)(2)(B). That is, that Defendant

conspired to either (1) knowingly corruptly persuade or knowingly

attempt to corruptly persuade other persons with the intent to

influence their testimony in the relevant grand jury proceedings;

or (2) knowingly corruptly persuade or knowingly attempt to

corruptly persuade other persons with the intent to cause or

induce those persons to destroy or conceal records and documents

for use in the relevant grand jury proceedings.

B. Discussion

Defendant contends that no rational jury could find him

guilty for conspiracy under this standard. Defendant advances

three overarching arguments in support of this contention: (1)

that Defendant’s conviction is inherently suspect in view of the

jury’s acquittals on the two substantive counts comprising the

objects of the conspiracy; (2) that the evidence does not suffice

to establish conspiracy convictions for the objects of the

charged conspiracy; and (3) that the jury may have convicted

Defendant of a legally inadequate charge. These arguments are
9

considered in that order.

1. Import of Defendant’s Acquittal on the Objects of

the Charged Conspiracy

As a preliminary matter, Defendant argues that “special

scrutiny is required where a defendant is acquitted of the

substantive charges alleged to be the object of the conspiracy”

because such acquittals suggest the government did not fulfil its

obligation “to prove the intent necessary to commit the

underlying substantive offense.” (Def.’s Mot. for Acquittal or,

in the Alternative, a New Trial, at 12, 13.) Defendant urges

this is particularly true in this case because the overt acts of

the conspiracy charged in the Indictment are similar to the facts

supporting the substantive offenses for which Defendant was

acquitted. In essence, then, Defendant suggests the Court should

be skeptical of the jury’s verdict because it is inconsistent.

However, it has never been the case that an

inconsistent jury verdict is, in itself, cause for judicial

skepticism. On the contrary, it is well settled that

inconsistent jury verdicts in criminal cases are not subject to a

heightened standard of review. See United States v. Powell, 469

U.S. 57, 64 (1984) (“‘[T]he most that can be said . . . is that

the [inconsistent] verdict shows that either in the acquittal or

the conviction the jury did not speak their real conclusions, but

that does not show that they were not convinced of the

defendant’s guilt.’” (quoting Dunn v. United States, 284 U.S.
10

390, 393 (1932))); see also United States v. Vastola, 989 F.2d

1318, 1329 (3d Cir. 1993) (“[J]ury verdicts cannot be set aside

solely on the ground of inconsistency.”). 

Indeed, in United States v. Powell, the Supreme Court

held that acquittals on charges of cocaine possession and

conspiracy to possess cocaine did not require reversal of the

defendant’s conviction for “using the telephone in ‘committing

and in causing and facilitating’” the conspiracy and possession

for which the defendant was acquitted. 469 U.S. at 60, 69. In

so holding, the Court noted:

[I]nconsistent verdicts—even verdicts that acquit on a

predicate offense while convicting on the compound

offense—should not necessarily be interpreted as a windfall to

the Government at the defendant’s expense. It is equally

possible that the jury, convinced of guilt, properly reached

its conclusion on the compound offense, and then through

mistake, compromise, or lenity, arrived at an inconsistent

conclusion on the lesser offense.

Id. at 65. 

This rule is no different in conspiracy cases. In

United States v. Vastine, for example, the defendant attacked the

jury’s verdict arguing that a conspiracy conviction should be set

aside insofar as the defendant was found not guilty on the

substantive offenses. 363 F.2d 853, 854 (3d Cir. 1966). As in

this case, the conspiracy charge in Vastine charged the defendant

with conspiracy to commit the substantive offenses for which the

defendant was acquitted. Id. Nevertheless, the Vastine Court

refused to reverse the jury’s verdict and rejected the
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defendant’s challenge. Thus, the fact that the jury acquitted

Defendant on the objects of the charged conspiracy neither

triggers any heightened standard of review nor requires this

Court to enter a judgment of acquittal.

2. Sufficiency of the Evidence to Establish a

Conspiracy Conviction for Either of the Charged

Objects

Defendant next argues that the evidence was not

sufficient for a rational jury to find Defendant guilty on the

conspiracy charge. The grounds raised by Defendant are

substantially similar to those made in the Rule 29 motion this

Court denied after the Antitrust Division rested. Although the

Court’s denial of that motion does not preclude the Court from

granting the instant Rule 29 motion, see generally Fed. R. Crim.

P. 29, the Court will deny Defendant’s motion for the same

reasons it denied Defendant’s earlier motion for a judgment of

acquittal; namely, because the facts at trial sufficiently

support the conclusion that Defendant conspired, within the

meaning of 18 U.S.C. § 371, to violate either Section 1512(b)(1)

or Section 1512(b)(2)(B). 

Under Section 371, a defendant is guilty of conspiracy

where:

[T]wo or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or

any agency thereof in any manner or for any purpose, and one

or more such persons do any act to effect the object of the

conspiracy . . . .
12

18 U.S.C. § 371. Accordingly, to convict a defendant of

conspiracy, the jury must find beyond a reasonable doubt: (1)

“an agreement, either explicit or implicit”; (2) “to commit an

unlawful act”; (3) “with intent to commit an unlawful act”; and

(4) “intent to commit the underlying offense.” Brodie, 403 F.3d

at 134 (internal marks omitted) (quoting United States v. Kapp,

781 F.2d 1008, 1010 (3d Cir. 1986)). With these elements in

mind, the analysis that follows considers whether, viewing the

facts at trial in the light most favorable to the Antitrust

Division, a rational jury could find beyond a reasonable doubt

that Defendant conspired to violate either Section 1512(b)(1) or

Section 1512(b)(2)(B).

i. The Evidence Pertaining to Section 1512(b)(1)

The Indictment charged Defendant with conspiring to 

violate Section 1512(b)(1) by agreeing with others “to corruptly

persuade and attempt to corruptly persuade other persons known to

the Grand Jury with intent to influence their testimony in an

official proceeding.” (Indictment ¶ 13.) Defendant asserts that

the evidence was insufficient to establish such a conspiracy

because the evidence did not show (1) an agreement to influence

grand jury testimony; or (2) the requisite intent to commit the

underlying offense. Relying on United States v. Schramm, 75 F.3d

156 (3d Cir. 1996), Defendant principally contends that he could

not be guilty because the evidence at trial demonstrated—at
13

most—an agreement to lie to the Antitrust Division or to Morgan’s

lawyers. This evidence, Defendant reasons, does not suffice

because it does not show that Defendant targeted the grand jury

investigation in the Eastern District of Pennsylvania. See id.

at 159 (holding that a defendant subject to a conspiracy

prosecution must know that the agreement “had the specific

unlawful purpose charged in the indictment”).

Although presented as a novel legal issue for this

Court’s consideration, Defendant’s argument boils down to how one

interprets the facts proven at trial: Defendant believes they do

not tend to show the conspiracy charged. This belief is rooted,

in part, in a faulty conception of what a violation of Section

1512(b)(1) entails. The Court thus begins by laying out the

appropriate legal standard.

a. Appropriate legal standard

Defendant’s first argument that there was no evidence

of an agreement is based on the terms “other persons” and “Grand

Jury” as used in the Indictment. (See Indictment ¶ 13.) 

Emphasizing these terms, Defendant asserts that the evidence at

trial merely demonstrated an agreement amongst the coconspirators as to what they would say if questioned by the

Antitrust Division or their own lawyers. Thus, according to

Defendant, there was no evidence of an agreement to corruptly

persuade other persons to influence the grand jury proceedings in
For ease, this memorandum refers to the intent and 2

nexus required for a “Section 1512(b)” violation when discussing

that required for a violation of Section 1512(b)(1) or Section

1512(b)(2)—the two statutes Defendant was convicted of conspiring

to violate—because courts have generally applied the same

requirements to both. See infra note 5. However, it is not

necessarily the case that all of the offenses in Section 1512(b)

require the same nexus required for a violation of either Section

1512(b)(1) or Section 1512(b)(2). 

Section 1512(b)(3), which punishes defendants who

“knowingly use[] intimidation, threaten[], or corruptly

persuade[] another person . . . with intent to . . . hinder,

delay, or prevent the communication to a law enforcement officer

or judge of the United States,” 18 U.S.C. § 1512(b)(3), does

not—as Sections 1512(b)(1) and 1512(b)(2) do—require the

obstruction at issue to relate to an “official proceeding.” 

Based on this, some courts have concluded that the nexus required

for a Section 1512(b)(3) violation differs from that which

applies to a violation of subsections (1) and (2). In United

States v. Ronda, for example, the Eleventh Circuit distinguished

the nexus required for a violation of the two statutes,

concluding that the nexus requirement the Supreme Court

enunciated in Arthur Andersen LLP v. United States, 544 U.S. 696

(2005) with respect to Section 1512(b)(2) does not apply to a

Section 1512(b)(3) violation:

[T]he federal nexus required under § 1512(b)(2) is distinct

from that required under § 1512(b)(3). Unlike the stricter

“an official proceeding” requirement that appears in §

1512(b)(2), § 1512(b)(3) requires only that a defendant

intended to hinder, delay, or prevent communication to any

“law enforcement officer or judge of the United States.”

14

the Eastern District of Pennsylvania. 

Defendant’s second argument that the evidence did not

sufficiently demonstrate the intent necessary to commit the

underlying offense is grounded in Defendant’s insistence that

United States v. Aguilar, 515 U.S. 593 (1995) governs and

requires a defendant to know his or her actions will affect an

official proceeding for a Section 1512(b) violation to lie. In 2
Ronda, 455 F.3d 1273, 1288 (11th Cir. 2006) (quoting United

States v. Veal, 153 F.3d 1233, 1248 (11th Cir. 1998)).

15

that case, the Supreme Court held that the intent required for a

violation of 18 U.S.C. § 1503 was not established where the

defendant made a false statement to an investigating agent who

had alerted the defendant to the existence of a grand jury

investigation. The Court held as much because the connection

between the defendant’s statement and the grand jury

investigation was tenuous; the statement was a mere lie to an

investigating agent who had “not been subpoenaed or otherwise

directed to appear before the grand jury.” Aguilar, 515 U.S. at

601. Applying Aguilar, Defendant contends he could not have had

the intent required because he and his co-conspirators did not

know their actions would influence grand jury testimony.

As noted, the legal underpinnings upon which both of

Defendant’s Section 1512(b)(1) arguments depend are flawed. 

First, Defendant’s contention that there was no agreement to

corruptly persuade another person to influence grand jury

proceedings draws too narrow an interpretation of Section

1512(b)(1). Indeed, by stating the conspiracy charge cannot lie

because the evidence merely showed that Defendant and his coconspirators agreed to mislead the company lawyers or the

Antitrust Division, Defendant appears to assume that Section

1512(b)(1) cannot be violated by deliberately using such parties
At oral argument, however, Defendant conceded that a 3

Section 1512(b)(1) violation could lie under these circumstances. 

Nevertheless, Defendant claimed the Indictment in this case was

more restrictive than the statute because it charged Defendant

with conspiring to corruptly persuade “other persons . . . with

intent to influence their testimony.” (Indictment ¶ 13 (emphasis

added).) The Court disagrees with Defendant’s interpretation of

the language in the Indictment. By its terms, it permits a

conviction where the defendant uses an intermediary to corruptly

persuade another person with the intent to influence their

testimony. 

Defendant, reasoning that the evidence at trial more 4

neatly establishes a violation of Section 1512(b)(3) than a

violation of Section 1512(b)(1), seems to base his interpretation

of Section 1512(b)(1) on the existence of Section 1512(b)(3)—a

different crime for which Defendant was not indicted. As

mentioned supra note 2, Section 1512(b)(3) provides for criminal

sanctions where one corruptly persuades another with the intent

to “hinder, delay, or prevent the communication to a law

enforcement officer.” 18 U.S.C. § 1512(b)(3). It is undeniable

that the offenses in the two subsections are different. See

United States v. Floresca, 38 F.3d 706, 709, 710 n.9 (4th Cir.

1994) (reversing the defendant’s conviction because the district

court inappropriately instructed the jury on Section 1512(b)(3)

where the defendant had actually been charged with a violation of

Section 1512(b)(1)). However, the existence of Section

1512(b)(3) does not preclude a conviction under Section

1512(b)(1) where the defendant engages in activity that is

16

as a conduit to ultimately influence testimony at contemplated

grand jury proceedings. But there is no reason it could not be. 3

After all, the statute expressly provides “an official

proceeding need not be pending or about to be instituted at the

time of the offense.” 18 U.S.C. § 1512(f)(1). For this reason,

a defendant violates Section 1512(b)(1) when he or she corruptly

persuades another person with the intent to influence testimony

in an official proceeding—not when the testimony of the party in

question is actually used in the official proceeding. Cf. 4
punishable under the latter statute.

17

United States v. DiSalvo, 631 F. Supp. 1398, 1402 (E.D. Pa. 1986)

(discussing statutory change in Section 1512 from proscribing

persuasion of “any witness” to “any person”), aff’d, 826 F.2d

1057 (3d Cir. 1987). And, as the statute itself reveals, a

defendant who seeks to influence testimony at a proceeding by

corruptly persuading that person through another could be guilty

under the statute. See 18 U.S.C. § 1512(b)(1) (defendant

violates the statute if he or she “corruptly persuade[s] another

person . . . with intent to . . . influence, delay, or prevent

the testimony of any person . . . .” (emphasis added)).

Second, although the parties vigorously argue over

whether United States v. Aguilar is controlling as to the nexus

required in the instant case, the Court need not conclusively

resolve this issue because Defendant misconstrues Aguilar to

require a greater knowledge of likelihood to affect official

proceedings. In United States v. Aguilar, the defendant was

charged with violating Section 1503 by lying to an FBI agent. 

The Court ruled that a violation under Section 1503 required a

“nexus” with judicial proceedings—namely, that the defendant’s

criminal conduct “have a relationship in time, causation, or

logic with the judicial proceedings” such that there is a

“natural and probable . . . interfer[ence] with the due

administration of justice.” 515 U.S. at 599 (internal marks
18

omitted) (quoting United States v. Wood, 6 F.3d 692, 695 (10th

Cir. 1993)). 

In reaching this conclusion, the Court rejected the

government’s contention that the defendant in Aguilar had the

knowledge required for a Section 1503 violation based on a

conversation between the defendant and an FBI agent in which the

agent stated, in response to the defendant’s inquiry concerning a

grand jury investigation, that a grand jury would indeed be

convening. Id. at 600. According to the Court, this

conversation did not demonstrate that the defendant “knew his

false statement would be provided to the grand jury.” Id. at

601. Thus, the Court concluded the probability of the

defendant’s lie reaching the grand jury was too speculative as to

have the required relationship with the proceeding in question. 

Id.

Defendant, pointing to the language in Aguilar

concerning the defendant’s lack of knowledge that the false

statement to the FBI agent would be conveyed to the grand jury,

appears to read Aguilar to impose a nexus whereby a defendant

must know grand jury testimony will be impacted by his or her

conduct. Aguilar, however, quite clearly held the nexus merely

requires a “‘natural and probable effect’ of interfering with the

due administration of justice.” Id. A defendant, therefore,

need not—as Defendant suggests—affirmatively “kn[ow] that his
The Arthur Andersen Court applied the nexus requirement 5

to Section 1512(b)(2). However, courts have interpreted the

nexus requirement to apply with equal force to Section

19

conduct would affect grand jury testimony.” (Def.’s Mot. for

Acquittal or, in the Alternative, a New Trial, at 35; see also

id. (“There was no evidence that Mr. Norris or any alleged coconspirator had knowledge that the statements they made . . .

would somehow morph into testimony before the grand jury.”).) It

is enough for that to be the defendant’s intention where he or

she acts in a way that is likely to achieve the desired

objective. See United States v. Kumar, 617 F.3d 612, 621 (2d

Cir. 2010) (interpreting Section 1503 and explaining “a defendant

does not need to know with certainty that his conduct would

affect judicial proceedings”); United States v. Macari, 453 F.3d

926, 940 (7th Cir. 2006) (applying Aguilar in evaluating

defendant’s motion for a judgment of acquittal and holding the

evidence sufficed because the defendant “made the statements with

the intention of obstructing the grand jury’s investigation

because there was a logical relationship between his knowing

conduct . . . and the effect it was likely to have”). 

Moreover, it is not clear that the nexus articulated in

Aguilar applies to the instant statute at all. In Arthur

Andersen LLP v. United States, the Court determined that Section

1512(b) requires a nexus as a condition precedent to criminal

punishment. 544 U.S. at 708. In support of this conclusion, 5
1512(b)(1). See, e.g., United States v. LeMoure, 474 F.3d 37, 44

(1st Cir. 2007) (“[S]ection 1512(b)(1) requires proof of a nexus

with ‘an official proceeding’ . . . .”).

20

the Court cited Aguilar and clarified that the Aguilar decision

had “required something more—specifically, a ‘nexus’ between the

obstructive act and the proceeding.” 544 U.S. at 708 (citing

Aguilar, 515 U.S. at 599-600). Some courts have concluded the

nexus required by Arthur Andersen is substantially similar to

that in Aguilar. See United States v. Hayes, No. 09-397, 2010 WL

2696894, at *4 (M.D. Pa. July 7, 2010) (stating Arthur Andersen

requires “essentially the nexus mandated by Aguilar”). However,

the Arthur Andersen Court did not adopt precisely the same nexus

requirement—it merely stated that one is required and that the

defendant must have some contemplation of the official proceeding

he or she is charged with obstructing. See Arthur Andersen, 544

U.S. at 708 (explaining there must be some “contemplation [of an]

official proceeding”); United States v. Byrne, 435 F.3d 16, 25

(1st Cir. 2006) (“[T]he Arthur Andersen court did not elaborate

on the particularity required by the nexus requirement in

subsection (b)(2).”). 

Based on the considerable difference between the two

statutes, it is debatable whether the nexus required for a

Section 1512(b) violation is the same as that associated with a

Section 1503 violation. For one, as Section 1512 expressly

instructs, “an official proceeding need not be pending or about
Section 1503 criminalizes a defendant’s conduct where 6

he or she “corruptly or by threats or force, or by any

threatening letter or communication, influences, obstructs, or

impedes, or endeavors to influence, obstruct, or impede, the due

administration of justice.” 18 U.S.C. § 1503(a). Section

1512(b), by contrast, is—as defense counsel acknowledged at oral

argument—more targeted.

21

to be instituted at the time of the offense.” 18 U.S.C. §

1512(f)(1). There is no such statutory prescription with respect

to Section 1503. Indeed, in ruling that a nexus was required for

a Section 1512(b) violation, the Arthur Andersen Court

acknowledged this very point. See Arthur Andersen, 544 U.S. at

707-08 (“It is, however, one thing to say that a proceeding ‘need

not be pending or about to be instituted at the time of the

offense,’ and quite another to say a proceeding need not even be

foreseen.”). 

In addition, the provision of Section 1503 dealt with

in Aguilar is considerably broader than Section 1512(b) in terms

of what it allows the government to punish. See Aguilar, 515

U.S. at 598 (explaining that the Section 1503 provision being

interpreted “serves as a catchall” and contains portions that are

“general in scope”). This breadth, which Section 1512(b) plainly

does not share, was one of the reasons the Aguilar Court 6

required the nexus that it did. See id. at 600 (“We have

traditionally exercised restraint in assessing the reach of a

federal criminal statute . . . . We do not believe that uttering

false statements to an investigating agent . . . who might or
Defendant also asserts that the knowledge required for 7

a Section 1512(b)(1) violation was lacking because Defendant and

his co-conspirators lacked a technical understanding of what a

grand jury is and therefore could not have known that the people

influenced could be called to testify. Defendant is mistaken to

the extent his argument implies that a technical understanding is

required for a Section 1512(b)(1) violation. Instead, as noted,

a defendant violates Section 1512(b)(1) where his or her illegal

actions are undertaken in contemplation of an official proceeding

with the purpose of influencing testimony in it. 

Moreover, the evidence presented belies Defendant’s

theory that he and his co-conspirators did not know people could

be called to testify before the grand jury. Testimony was heard

that Defendant had a subpoena in his possession at the conception

of Defendant’s obstruction scheme. (Tr. 4:20-22 (July 14, 2010

P.M.).) This subpoena was titled “SUBPOENA TO TESTIFY BEFORE

GRAND JURY” and had a box to check indicating whether the

subpoena was for a “person” or for “documents or objects.” (See

GX-05.) Consequently, the alleged cultural misconceptions of the

grand jury process that Defendant cites are of no moment; a

rational jury could conclude Defendant and his co-conspirators

were aware people could be called to testify in the grand jury

22

might not testify . . . is sufficient to make out a violation of

the catchall provision.”). 

Thus, the Court disagrees with Defendant’s

interpretation that the Aguilar nexus requires a defendant to

have actual knowledge that his or her actions will end up

affecting the relevant official proceeding. However, to the

extent Aguilar requires such a nexus, the Court deems it

inapplicable here because Defendant was charged with violating

(and conspiring to violate) Section 1512(b) rather than Section

1503. Consequently, Defendant and his co-conspirators need not

have known with certainty that their actions would influence

grand jury testimony for a violation of the statute to lie.7
proceedings.

23

b. Sufficiency of the evidence based on the

applicable legal standard

With the appropriate legal framework in mind, it is

evident that a rational jury could, viewing the facts in the

light most favorable to the Antitrust Division, find beyond a

reasonable doubt that Defendant conspired to violate Section

1512(b)(1). The evidence produced at trial readily demonstrates

that, after learning of the grand jury investigation, Defendant

and others agreed to misrepresent Morgan’s meetings with

competitors via false non-contemporaneous scripts they and others

were to parrot when questioned. Thus, a rational jury could find

these scripts were for the express purpose of influencing

testimony that might be presented to the grand jury.

It could do so because the script production described

by the Antitrust Division’s nine witnesses is traceable to the

April 27, 1999 grand jury subpoena that was served on Morganite. 

The subpoena, titled “SUBPOENA TO TESTIFY BEFORE GRAND JURY”

indicated that the company was to turn over responsive “documents

or object(s).” (See GX-05.) After the subpoena was served, a

meeting was arranged in Defendant’s office to discuss the

subpoena. (See Tr. 4:7-11 (July 14, 2010 P.M.).) Several Morgan

employees attended this meeting and, upon arriving, were shown a

copy of the subpoena. (See id. 4:20-22.)
24

As Perkins, Morganite’s Vice President of Sales and

Marketing stated, he met with Defendant, Macfarlane, and Kroef

after the issuance of the subpoena and was told “the potential

problem . . . was the investigation, and the concern that there

were no written notes or documents . . . relative to the

meetings.” (Id. 113:24-114:3.) To remedy this problem,

Defendant suggested that false meeting summaries be manufactured:

There was a decision taken that we should draft some notes of

the meetings which involved really digging -- digging a lot of

information up first of all to find out when the meetings

were, who the potential attendees were, and then to draft

meetings but on instruction to be very careful what we wrote,

how we phrased things and what we included in the drafts we

were going to prepare.

. . .

[W]e were to de-emphasize references to any pricing

involvement or pricing arrangements. . . . The emphasis was

to make it more seem as though they were joint venture

meetings.

(Id. 114:14-20; 115:22-23; 115:25-116:1.) The purpose of these

scripts were to “help each of us that were -- attended the

meetings in terms of misleading the Department of Justice.” (Tr.

31:21-23 (July 20, 2010 A.M.).) They were, in Kroef’s words, to

form a “new memory” in the event “you would be questioned” in

connection with the investigation. (Tr. 12:23-13:3, 14:7-8 (July

16, 2010 A.M.).)

Several other witnesses told the same story at trial. 

(See, e.g., Tr. 109:1-10; 112:8-12 (July 15, 2010 P.M.) (Kroef’s

testimony that, after receiving the grand jury subpoena, there
25

were meetings between Defendant and others in which it was

determined evidence should be created to show that “it wasn’t

cartel meetings, that these were meetings on other topics which

were allowed to take place”); Tr. 4:20-22, 28:17-19 (July 20,

2010 A.M.) (Macfarlane’s testimony that Defendant had the grand

jury subpoena at the initial meeting and that the set of notes

prepared were “designed to mislead the -- investigation by the

U.S. Department of Justice”).) This evidence supports a jury

finding that Defendant and others took actions to prevent the

grand jury’s information gathering process after learning about

the grand jury investigation for the purpose of influencing

testimony they believed might be given to the grand jury—i.e.,

with the knowledge required to effectuate a violation of Section

1512(b)(1).

The jury’s verdict is also supported by much of the

other testimony elicited at trial. As Kroef and Weidlich both

testified, Kroef met with Weidlich at Defendant’s direction and

on Morgan’s accord to persuade Schunk to perpetuate the lies

relayed on the scripts if questioned. Kroef testified that,

after the grand jury investigation began, Defendant asked him to

find out what Schunk was “going to do about the investigation. 

A, were they under investigation? B, what was their proceeding? 

What was their strategy.” (Tr. 33:19-21 (July 16, 2010 A.M.).) 

Defendant further requested that Kroef arrange a meeting with
Viewed in the light most favorable to the Antitrust 8

Division, the evidence at trial also established that Defendant

met with Kotzur on his own on December 17, 2000. (See id. 46:3-

47:1.) Following this meeting, Defendant falsely represented on

the dinner receipt that the meeting with Kotzur was arranged to

discuss an acquisition. (See Tr. 45:10-25 (July 20, 2010 A.M.).)

26

Weidlich. (Id. 39:5-7.) Kroef held the meeting with Weidlich on

November 30, 2000 to convey the “Morgan strategy” to “use joint

venture discussions, acquisition discussions, all sort of legal

possible activities to explain the meetings.” (Id. 37:23-25.) 

Kroef’s discussion with Weidlich was not purely informational. 

Rather, as Weidlich testified:

Mr. Kroef told me that . . . that the Morgan people had been

interviewed by the United States authorities already. And he

told me that certainly at some given time the Schunk people

will be interviewed as well. And for that, he told me that

they have made a kind of protocol after those interviews. And

he wanted me to -- to send me that -- that protocol, in order

that I distribute it to the Schunk and Hoffman people, in

order to make to -- in order to -- to make sure that the

testimony that they would be giving would be the same as or

similar to what the Morgan people have said.

(Tr. 9:6-18 (July 20, 2010 P.M.).)

After this meeting, Kroef informed Defendant that

Weidlich was not “really grasping the importance of what was

happening.” (Tr. 39:23-40:6 (July 16, 2010 A.M.).) Thus,

Defendant decided he needed to speak with Schunk’s CEO, Dagobert

Kotzur. (Id.) A follow-up meeting between Defendant, Weidlich,

Kotzur and Kroef was held on February 26, 2001. As Weidlich 8

testified, Defendant and Kroef urged the same conduct of Schunk

at this second meeting:
27

[Defendant] strongly suggested that we make sure that our

people answer in the same way, on the one hand because that

would help to convince the US authorities that the Morgan

story was right. And that could be an instrument in order to

-- to slaughter Carbone. And on the other hand, he drew our

attention to the fact that if the investigation into the

carbon brush business cannot be stopped in the United States,

then, for sure, an investigation in Europe will start as well.

(Tr. 20:16-23 (July 20, 2010 P.M.).) This evidence could lead a

rational jury to convict Defendant of Count Two.

So too could the testimony from two of the Antitrust

Division’s witnesses regarding how Defendant and others sought

the retirement of Emerson, a British national residing in the

United Kingdom, who served as a pricing officer at Morgan. At

trial, evidence was presented that Emerson’s retirement was

sought for the express purpose of preventing him from testifying

against Morgan in the proceedings after it became apparent that

any testimony Emerson might give could not be readily influenced. 

Indeed, Macfarlane testified that, after learning of

the grand jury investigation, a concern arose that Emerson would

not be able to stick to the story in the scripts if questioned:

[Defendant] emerged [from a meeting] saying that Mr. Emerson

would not stand the questioning of his role in any of these

activities going forward. . . . [I]f he were questioned by

the Department of Justice either in Canada or yourselves on

his role, he would perhaps not be able to stay to the story.

He would -- he would have to tell the truth.

(Tr. 43:12-16, 44:1-4 (July 20, 2010 A.M.).) Accordingly,

Emerson’s retirement from Morgan was pursued. (See id. 44:7-9

(“It was our view that as a retired employee, [Emerson] would be
28

inaccessible to either [sic] Department of Justice or Canada’s

Department of Justice”).) Kroef also testified to this effect. 

(See Tr. 31:6-25 (July 16, 2010 A.M.) (explaining that “the

company believed, at that time, if Mr. Emerson was no longer in

the company, he could not be told to testify in a case against

the company” and elaborating on how Defendant and others went

about procuring Emerson’s retirement).) This evidence supports

the jury’s verdict. 

Accordingly, the Court concludes there was sufficient

evidence for a rational jury to conclude that Defendant conspired

to violate Section 1512(b)(1). 

ii. The Evidence Pertaining to Section

1512(b)(2)(B)

Because a rational jury could conclude that Defendant

conspired with others to violate Section 1512(b)(1), it is

technically unnecessary to consider whether the evidence at trial

also supported a conspiracy conviction for the other object

charged in the Indictment. See Griffin, 502 U.S. at 59-60. 

However, the evidence presented at trial provides a sufficient

basis for a rational jury to have found Defendant guilty of a

conspiracy to violate Section 1512(b)(2)(B) as well. Thus, in

the interest of completeness, the Court will also discuss the

arguments pertaining to Section 1512(b)(2)(B). 

Section 1512(b)(2)(B) punishes those who “corruptly

persuade[] another person . . . with intent to . . . cause or
29

induce any person to . . . alter, destroy, mutilate, or conceal

an object with intent to impair the object’s integrity or

availability for use in an official proceeding.” 18 U.S.C. §

1512(b)(2)(B). As discussed above in the context of Section

1512(b)(1), a nexus—albeit not necessarily the same nexus

required under Section 1503—is required for a violation of

Section 1512(b)(2)(B). Thus, a defendant cannot be convicted

under Section 1512(b)(2)(B) unless the document destruction

occurs “in contemplation [of] any particular official proceeding

in which those documents might be material.” Arthur Andersen,

544 U.S. at 708. The indictment charged Defendant with

conspiring to violate this statute by agreeing with others to:

corruptly persuade and attempt to corruptly persuade other

persons known to the Grand Jury with intent to cause or induce

those other persons to alter, destroy, mutilate or conceal

records and documents with the intent to impair their

availability for use in an official proceeding; that is, a

federal grand jury sitting in the Eastern District of

Pennsylvania, conducting a price-fixing investigation of the

carbon products industry . . . .

(Indictment ¶ 13.) 

Defendant asserts the evidence at trial was

insufficient to establish a conspiracy to violate Section

1512(b)(2)(B) because (1) there was no document destruction in

the United States; (2) the documents destroyed were European

documents only which were destroyed with no intent to affect the

grand jury proceeding in the United States; (3) the document

destruction occurred before the grand jury subpoena was issued;
30

and (4) the documents in Europe were, based on Defendant’s

understanding from legal counsel, beyond the power of the grand

jury subpoena. These arguments lack merit.

First, this Court has already resolved the issue of

whether a Section 1512(b)(2)(B) violation can lie where the

document destruction occurred (1) outside of the United States;

and (2) before the issuance of the grand jury subpoena. In

Norris I, Defendant sought to dismiss Count IV of the

indictment—the Count charging him with actually violating Section

1512(b)(2)(B)—on these same grounds. In rejecting these

arguments, the Court explained:

Defendant’s contention that he could not have impaired the

availability of foreign-based documents because they were

beyond the grand jury subpoena power is irrelevant. The

statute requires only that Defendant’s action be taken “with

intent to impair the object’s integrity or availability for

use in an official proceeding.” The offense could have

occurred even before the grand jury was empaneled and had

authority to issue subpoenas. Here, the relevance of the

Morganite subpoena (which also sought Morgan documents) is

that it allegedly informed Defendant of the existence of the

federal grant jury’s price-fixing investigation. As explained

earlier, it is for the jury to decide if Defendant and his coconspirator’s actions to destroy or conceal documents were

taken with intent to impair their availability in the grand

jury investigation.

2010 WL 2553620, at *6 (internal citations omitted); see 18

U.S.C. § 1512(h) (providing for “extraterritorial Federal

jurisdiction over an offense under this section”); 18 U.S.C. §

1512(f) (“[A]n official proceeding need not be pending or about

to be instituted at the time of the offense.”). Thus, a rational
31

jury could have convicted Defendant even if the only document

destruction that took place occurred outside the United States

and before the grand jury subpoena was issued. 

Second, the evidence supports a jury finding that

document destruction took place with the intent to affect the

grand jury proceeding in the United States. This evidence is not

negated by Defendant’s understanding of what the grand jury could

legally compel. The grand jury subpoena was, as noted, served on

Morganite on April 27, 1999. (See GX-05.) This subpoena

requested production of “all responsive documents . . . of [the]

company without regard to the physical location of said

documents.” (Id.) It clarified that it sought Morgan documents. 

(See id. (instructing that the subpoena covered Morganite’s

“divisions and affiliates”).) Testimony was heard at trial that,

after receiving the subpoena, Defendant ordered the destruction

of responsive files. As Kroef testified:

[I]f you’re going to be subpoenaed in the United States -- so

if you’re under investigation on something very minor in the

United States, that could be a serious risk of things coming

to Europe.

And of course, in Europe, we had an elaborate cartel

system. So I recall a very, very short discussion with

[Defendant] where he said, what was the last time you did a

check on the -- on the files in the companies? And I said,

ooh, that’s been a long time. And he said, do you think it’s

wise to do another one? And I said, yeah, not a bad idea.

That was triggered by the investigation here in the U.S.

(Tr. 28:5-16 (July 16, 2010 A.M.).)

Kroef further testified that, following this
Moreover, Defendant’s contention that he did not 9

understand the grand jury could obtain foreign documents is

32

conversation with Defendant, the document destruction was

actually carried out:

I selected three people [to review the files because] all

three were involved in the cartel activities, because you

didn’t -- you wanted to keep the number of people involved as

small as you possibly can . . . . [s]o they went to all our

own offices in Europe, and did -- did the check. They just

checked all the files . . . . Every time they found a copy

of, let’s say a quotation to a customer, which had some, let’s

say, indication of cartel activities handwritten on them, they

would take them out of the file, and throw them away, destroy

them.

(Id. 28:19-23, 29:3-18.) Emerson testified similarly. (See

17:1-19:25, 50:9-12 (July 14, 2010 A.M.) (Emerson’s testimony

that he was summoned by Kroef to destroy files in light of the

subpoena and that files—including notes “relating to competitor

meetings with the U.S. market”—were destroyed after the subpoena

was served).) 

Defendant takes exception to Kroef’s testimony insofar

as Kroef revealed on cross-examination that he could not recall

the year in which Defendant instructed him to destroy the

documents. However, Kroef did clearly testify that the

conversation with Defendant occurred after the subpoena was

served and was triggered by the same. This evidence thus

supports a jury finding that Defendant and others agreed to

destroy responsive documents for the purpose of preventing the

grand jury from procuring them. 

9
contradicted by Defendant’s actions in ensuring the incriminating

documents were destroyed after learning of the subpoena. A

rational jury could conclude that the actions undertaken were

designed to ensure the documents would be unavailable for the

grand jury notwithstanding the legal advice Defendant may have

received regarding the grand jury’s ability to reach foreign

documents.

Defendant also asserts that the Court should not allow 10

the charge to stand because there was no evidence presented at

trial that Defendant conspired to attempt to violate either

Section 1512(b)(1) or Section 1512(b)(2)(B). Even if this were

true, however, the lack of evidence presented on these objects of

the multiple-object conspiracy for which Defendant was convicted

would not be a basis for setting aside the jury’s guilty verdict. 

See Griffin, 502 U.S. at 59-60.

33

Thus, a rational jury could find that Defendant

conspired to violate Section 1512(b)(2)(B) by impairing the

availability of documents for the grand jury proceeding.

3. Validity of the Charge for Which Defendant was

Convicted

Finally, Defendant argues that the Court must enter a

judgment of acquittal because the jury may have convicted him of

the legally inadequate charge of “conspiracy to attempt”

obstruction of justice. It is true, as Defendant points out, 10

that the verdict form provided to the jury allowed them to find

Defendant guilty if he conspired to attempt to corruptly persuade

other persons with intent to influence their testimony in

violation of Section 1512(b)(1) or conspired to attempt to

corruptly persuade other persons with intent to cause or induce

them to destroy documents in violation of Section 1512(b)(2)(B). 

(See doc. no. 149.) It is also true that a general verdict
34

should be set aside where one of several bases for conviction is

unconstitutional or illegal as opposed to supported by

insufficient evidence. See Griffin, 502 U.S. at 56, 59-60

(explaining that a general verdict should be set aside if one of

the bases is unconstitutional or illegal, but holding a guilty

verdict on a multiple-object conspiracy is valid even if there is

insufficient evidence concerning one of the conspiracy’s alleged

objects). However, the charge Defendant complains of is neither

unconstitutional nor illegal.

Defendant cites a Fifth Circuit case from 1980, United

States v. Meacham, 626 F.2d 503 (5th Cir. 1980), for the

proposition that a conspiracy to attempt charge is illegal. (See

Def.’s Mot. for Acquittal or, in the Alternative, a New Trial, at

55.) In Meacham, the defendant was charged with conspiring to

attempt a violation of two identical statutes which proscribed

either attempt or conspiracy. Id. at 506. Noting that a

successful conspiracy prosecution requires both a statute making

the conspiracy a crime and a statute making the object of the

conspiracy a crime, see id. at 507 (“In order successfully to

prosecute a conspiracy, the government must be able to point to

two separate provisions: one making the act of conspiring a

crime and one making the object of the conspiring a crime.”), the

Meacham Court concluded the indictment failed because the

statutes at issue could only be read to permit a prosecution for
35

either conspiracy or attempt: 

The government seeks yeoman’s performance out of [the

statutes] by using them as conspiracy statutes and as

substantive-offense statutes through which the conspiracy

statutes can be applied. 

. . .

Acceptance of the government’s position would lead to the

conclusion that [the statutes at issue] describe four separate

crimes apiece: conspiracy, attempt, conspiracy to attempt and

attempt to conspire. We do not believe Congress intended to

create four discrete crimes with the three words “attempts or

conspires.”

Id. at 508 (internal footnote omitted). Thus, Meacham does not

support Defendant’s contention that a charge of conspiracy to

attempt is illegal. The Meacham Court did criticize such a

charge, see id. at 509 & n.7 (calling conspiracy to attempt

“conceptually bizarre” and noting “it would be the height of

absurdity to conspire to commit an attempt, an inchoate offense,

and simultaneously conspire to fail at the effort”), but never

had occasion to reach the issue. See id. at 509 (“Because we

hold [the statutes] do not authorize conspiracy-to-attempt

prosecutions, we need not reach the more elusive question . . .

whether the government may prosecute the . . . crime of

conspiracy to attempt in instances where separate provisions make

both the conspiracy and the attempt criminal offenses.”). 

Instead, as the Meacham Court acknowledged, courts have

permitted conspiracy to attempt prosecutions where defendants

were prosecuted for conspiracy “in conjunction with other
36

statutes expressly making attempts criminal.” Id. at 508. That

is precisely the situation in the instant case: Defendant was

indicted for conspiracy in violation of Section 371 to attempt

(or commit) violations of either Section 1512(b)(1), Section

1512(b)(2)(B) or both. And, notwithstanding the criticism lodged

by the Fifth Circuit in dicta three decades ago, such a charge is

hardly illegal. See, e.g., United States v. Clay, 495 F.2d 700,

710 (7th Cir.) (rejecting argument that conspiracy to attempt

charge was legally invalid: “[w]hile entering the savings and

loan was obviously an objective of the conspiracy and a federal

crime, the men necessarily contemplated their attempting to gain

entry into the building, and such attempts are [also] expressly

proscribed”), cert. denied, 419 U.S. 937 (1974). Defendant cites

no cases that come close to establishing otherwise.

Therefore, because the jury convicted Defendant on a

legally adequate charge and could rationally conclude that

Defendant conspired to violate either Section 1512(b)(1) or

Section 1512(b)(2)(B), the Court will deny Defendant’s motion for

a judgment of acquittal under Rule 29.

IV. MOTION FOR A NEW TRIAL UNDER RULE 33

Rule 33 allows the Court to grant a new trial upon the

defendant’s motion “if the interest of justice so requires.” 

Fed. R. Crim. P. 33. Defendant asks the Court to vacate the
37

jury’s conviction and grant a new trial under Rule 33 for two

reasons. First, Defendant claims the jury’s guilty verdict is

against the weight of the evidence. Second, Defendant argues

that fundamental errors throughout the trial tainted the jury’s

verdict. These contentions are addressed in turn.

A. Defendant’s Argument that the Verdict is Against the

Weight of the Evidence

1. Legal Standard

Defendant first argues that the Court should order a

new trial under Rule 33 because the jury’s verdict was against

the weight of the evidence. In evaluating whether a jury’s

verdict was against the weight of the evidence, the court does

not view the evidence in the light most favorable to the

government as it does when considering a motion for a judgment of

acquittal under Rule 29. Instead, the court exercises its own

judgment in evaluating the government’s case. See United States

v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). However, motions

for a new trial based on the weight of the evidence “are not

favored” and should “be granted sparingly and only in exceptional

cases.” United States v. Brennan, 326 F.3d 176, 189 (3d Cir.

2003) (quoting Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d

Cir. 1987)). Indeed, “even if a district court believes that the

jury verdict is contrary to the weight of the evidence, it can

order a new trial ‘only if it believes that there is a serious

danger that a miscarriage of justice has occurred—that is, that
Unsurprisingly, Defendant launches his credibility 11

argument in explaining away the testimony that is unfavorable to

his position.

38

an innocent person has been convicted.’” United States v.

Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008) (quoting Johnson,

302 F.3d at 150). 

2. Discussion

The theme of Defendant’s weight-of-the-evidence

argument is that the seemingly damning evidence presented at

trial is not actually incriminating but, when properly construed

and analyzed, demonstrates Defendant’s innocence. To that end,

Defendant primarily advances four contentions: (1) that the

scripts were not materially false because joint ventures were

actually discussed at the meetings; (2) that the scripts were

merely produced to marshal a legitimate legal defense; (3) that

Emerson’s retirement was legitimate and not the product of a

scheme of obstruction; and (4) that some of the witnesses were

not credible because they testified years later pursuant to

corporate or personal plea agreements and selectively remembered

details of past events. 

11

In so doing, Defendant advances a fanciful story of

innocence, drawing the most innocuous interpretation of the

multitude of facts presented to the jury over the course of the

seven day trial. However, as the evidence outlined above in

examining Defendant’s Rule 29 challenge confirms, the facts of
It is axiomatic that the court views the facts in the 12

light most favorable to the government in evaluating a

defendant’s motion for a judgment of acquittal under Rule 29. By

contrast, the inquiry associated with a weight of the evidence

challenge under Rule 33 is considerably different insofar as the

court is required to exercise its own judgment in determining

whether to grant the defendant relief. But because the court’s

ability to order a new trial based on a verdict against the

weight of the evidence is extremely limited, the different

standards of review do not materially change the analysis the

Court has already undertaken in the Rule 29 context insofar as

the Court is persuaded that (1) the government’s witnesses and

evidence were credible; and (2) ample evidence befitting a guilty

verdict was presented. See United States v. Hunt, 526 F.3d 739,

744 n.1 (11th Cir. 2008) (“For the same reasons our de novo

review of the evidence leads us to conclude the evidence was

sufficient to convict Hunt, we find the district court did not

abuse its discretion in declining to grant him a new trial.”). 

Consequently, it is unnecessary to rehash at length the facts

proven at trial. 

39

this case hardly lead one to believe that “an innocent person has

been convicted.” Id. (internal marks omitted). Nevertheless,

because the standard of review for a weight of the evidence

challenge under Rule 33 differs from that conducted above in

evaluating the facts for the purpose of considering Defendant’s

Rule 29 arguments, the analysis that follows briefly addresses,

in turn, Defendant’s professed bases of innocence.12

First, the evidence at trial readily demonstrates that

the scripts were materially false. Several witnesses testified

to this effect. (See Tr. 30: 16-20 (July 15, 2010 A.M.)

(Perkins’ testimony that the “headline approach to [the minutes

produced] was that the meetings were primarily about joint

ventures” and that this was not true); id. 111:17 (Muller’s
40

testimony that the scripts were “a cover story”); Tr. 15:12-15

(July 14, 2010 P.M.) (Emerson’s testimony regarding a

conversation between Perkins and Emerson in which both

acknowledged the minutes were “false”).) 

Defendant attempts to discredit the falsity of the

scripts by arguing that there were, in fact, discussions

pertaining to joint ventures at the meetings for which the

scripts were ultimately produced. Thus, according to Defendant,

the omission of price-fixing in the notes was not materially

false as to show Defendant’s intent to obstruct justice. But, as

noted, several witnesses explicitly described the notes as false,

explaining that they were created for the express purpose of

misleading the grand jury investigation in one way or another. 

Moreover, Defendant’s handwritten notes from one of the alleged

joint venture meetings clearly show that price-fixing, at a

minimum, predominated. (See, e.g., GX-01.) 

Second, the facts do not support the benign

interpretation of the scripts’ creation Defendant advances. 

Defendant, pointing to testimony that the scripts were to

“account for” and “justify” certain meetings, claims the evidence

shows that the scripts were a component of Morgan’s efforts to

develop a legitimate legal defense. Defendant supports this

interpretation by noting that most of the summaries are labeled

“Attorney Privileged Information.” Moreover, Defendant
41

rationalizes the above-described meetings with Schunk in November

2000 and February 2001 as “simpl[e] . . . attempt[s] to

discover[] what strategy Schunk was employing with respect to the

grand jury investigation.” (Def.’s Mot. for Acquittal or, in the

Alternative, a New Trial, at 79.) Viewed as a whole, the

evidence at trial does not support Defendant’s contention. 

As a legal matter, the fact that the scripts may have

been produced at the behest of attorneys is—for the reasons

discussed in evaluating Defendant’s motion for a judgment of

acquittal—irrelevant provided the purpose of the scripts’

production was to influence grand jury testimony. And,

factually, the evidence at trial strongly supports the conclusion

that was precisely their purpose. Several witnesses testified

that the scripts were developed to be a cover story for the

parties who price-fixed. (See Tr. 31:21-23 (July 20, 2010 A.M.);

id. 28:17-19; Tr. 109:1-10; 112:8-12 (July 15, 2010 P.M.).) 

Indeed, as Kroef explained it, the scripts were designed to form

a “new memory” that was to be memorized “if you would be

questioned” by anybody with respect to the investigation. (Tr.

12:23-13:3, 14:7-8 (July 16, 2010 A.M.).) And, as the accounts

of the Schunk meetings confirm, others were persuaded in order to

facilitate this goal. (See Tr. 9:6-18 (July 20, 2010 P.M.); id.

20:16-23.) 

Third, the evidence concerning Emerson’s retirement
42

does not support Defendant’s claim of innocence. Defendant,

citing United States v. Farrell, 126 F.3d 484 (3d Cir. 1997),

contends that persuading Emerson to retire early was lawful. In

Farrell, the Court held that corruptly persuading under Section

1512(b) “does not include a noncoercive attempt to persuade a

coconspirator who enjoys a Fifth Amendment right not to disclose

self-incriminating information.” Id. at 488. According to

Defendant, Emerson’s retirement was within the lawful conduct

defined in Farrell because Emerson was (at worst) merely advised

not to voluntarily disclose information. Defendant claims that

counsel’s involvement in advising Emerson that he could not be

forced to testify if he retired confirms this account. 

However, the evidence at trial showed that the purpose

of Emerson’s retirement was not merely to advise or encourage him

not to speak on a matter he had no legal duty to discuss with the

government—it was to induce Emerson into not offering testimony

that would incriminate Morgan. This activity, as Farrell

acknowledges and Arthur Andersen confirms, is illegal under

Section 1512(b). See Arthur Andersen, 544 U.S. at 706 (corrupt

persuasion requires criminal culpability); Farrell, 126 F.3d at

488 (“[W]e are confident that . . . attempting to persuade

someone to provide false information” would constitute “corrupt

persuasion punishable under § 1512(b)” (internal marks omitted)). 

In particular, testimony was heard at trial that
As discussed infra, Defendant also suggested as much to 13

the jury during his closing argument. 

43

Emerson’s retirement was sought when it became apparent Emerson

might be unable to stick to the scripts when questioned. (Tr.

43:12-16, 44:1-4, 44:7-9 (July 20, 2010 A.M.).) At the time of

his retirement, Emerson was making about £32,000 and would not

have been able to retire on a full pension. (Tr. 24:18-21, 25:14

(July 14, 2010 P.M.).) Nevertheless, he requested and was

granted a pension of £150,000 without any negotiation whatsoever. 

(Id. 25:8-22.) Thereafter, Emerson received a letter explaining

that Keany, in connection with the internal investigation “should

simply like to confirm with you, your role in the many meetings

we held to exit our joint ventures with Le Carbone.” (GX-07.) 

However, Emerson had no involvement in the Carbone joint venture. 

(Tr. 29:19-23 (July 14, 2010 P.M.).) Taken together, this

evidence strongly indicates that Emerson’s retirement was

affirmatively designed to influence him not to offer

incriminating testimony. 

Finally, Defendant’s attempts to discredit the

witnesses who offered incriminating testimony are without

foundation. Defendant, citing the fact that the government

witnesses testified pursuant to plea agreements, intimates that

the Antitrust Division improperly influenced the testimony of the

witnesses. For example, Defendant notes that “Kroef took every 13
44

opportunity to quarrel and shade the evidence toward impropriety”

and that the witnesses called by the Antitrust Division

“dutifully provided conclusory testimony that the meeting

summaries were false.” (Def.’s Mot. for Acquittal or, in the

Alternative, a New Trial, at 88.) Defendant further questions

the credibility of the witnesses, noting they selectively

remembered certain details that were favorable to the Antitrust

Division’s theory of the case. However, the Court is persuaded

that the witnesses were credible. In addition, the exhibits

entered into evidence readily support the testimony advanced. 

Consequently, the Court concludes, for the purpose of its Rule 33

analysis, that Defendant has failed to show the witnesses were

not credible.

Thus, because the evidence does not support Defendant’s

contention that his conviction was a miscarriage of justice, the

Court will deny Defendant’s motion for a new trial based on the

weight of the evidence.

B. Defendant’s Argument that Fundamental Errors were

Committed During Trial

Defendant also contends that he should receive a new

trial under Rule 33 because fundamental errors at trial—on their

own and coupled with others—prejudiced his case. Specifically,

Defendant claims that a new trial should be ordered based on: 

(1) errors in the jury instructions; (2) the Court’s decision to

allow Keany to testify; (3) the Antitrust Division’s alleged
45

failure to comply with its discovery obligations under Brady and

Rule 16 of the Federal Rules of Criminal Procedure; and (4)

prosecutorial misconduct by the Antitrust Division in its closing

argument and rebuttal.

1. Legal Standard

A court should only grant a motion for new trial based

on errors at trial where the “error . . . had a substantial

influence on the verdict.” United States v. Malik, No. 08-614,

2009 WL 4641706, at *3 (E.D. Pa. Dec. 7, 2009) (internal marks

omitted) (quoting United States v. Enigwe, No. 92-257, 1992 WL

382325, at *4 (E.D. Pa. Dec. 9, 1992)). Where multiple errors

are alleged, a new trial may be granted only where the errors,

“‘when combined, so infected the jury’s deliberations that they

had a substantial influence on the outcome of the trial.’” 

United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994)

(quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir.

1993)). Consequently, harmless errors that do not deprive the

defendant of a fair trial are not a basis for granting a

defendant’s Rule 33 motion. See id.

2. Errors in the Jury Instructions

Defendant contends that the Court committed several

errors in instructing the jury which entitle him to a new trial. 

In evaluating alleged errors in jury instructions, the court is

to “consider the totality of the instructions and not a
46

particular sentence or paragraph in isolation.” United States v.

Khorozian, 333 F.3d 498, 508 (3d Cir. 2003) (quoting United

States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). “Moreover,

in reviewing jury instructions, our task is also to view the

charge itself as part of the whole trial” since “isolated

statements . . . seemingly prejudicial on their face, are not so

when considered in the context of the entire record of the

trial.” United States v. Park, 421 U.S. 658, 674-75 (1975)

(internal marks omitted) (quoting United States v. Birnbaum, 373

F.2d 250, 257 (2d Cir. 1967)). Two special considerations apply

to the court’s review. First, where the alleged error is that

the court failed to give a requested instruction, error only lies

“if the omitted instruction is correct, is not substantially

covered by other instructions, and is so important that its

omission prejudiced the defendant.” United States v. Davis, 183

F.3d 231, 250 (3d Cir. 1999). Second, to the extent the

defendant failed to object at trial, the contested jury

instruction is reviewed for plain error only. See Virgin Islands

v. Knight, 989 F.2d 619, 631 (3d Cir. 1993). Under this

standard, the instruction at issue is only reversible if the

error is “particularly egregious” such that it “seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. (quoting United States v. Young, 470

U.S. 1, 15 (1985)). 
47

Here, Defendant argues the Court erred by (1) not

identifying the overt acts Defendant committed in furtherance of

the conspiracy; (2) constructively amending the indictment via

its preliminary instruction; (3) failing to give an instruction

on the right to withhold testimony; (4) giving an improper

instruction as to the “nexus” required for a Section 1512(b)

violation; (5) failing to distinguish between the charged conduct

of “influencing” testimony and the uncharged conduct of

“preventing” testimony; and (6) failing to give a missing witness

instruction. Defendant failed to timely object to the first two

alleged errors and they are therefore reviewed for plain error. 

The remaining objections were timely raised. Nevertheless, the

third, fifth and sixth alleged errors cited by Defendant are only

“error” in limited circumstances. See Davis, 183 F.3d at 250. 

As explained more fully below, the Court concludes that none of

the supposed errors—individually or collectively—are grounds for

granting Defendant’s motion.

i. Failure to Identify the Overt Acts Defendant

Took in Furtherance of the Conspiracy

Defendant objects to the Court’s jury charge on overt

acts. Because Defendant failed to timely raise this objection,

this Court’s review is for plain error. In its charge, the Court

instructed the jury as follows:

With regard to the fourth element of the conspiracy, that

is the overt acts, the Government must prove beyond a

reasonable doubt that during the existence of the conspiracy
48

at least one member of the conspiracy performed at least one

of the overt acts alleged in the indictment for the purpose of

furthering or helping to achieve the objectives of the

conspiracy.

The indictment alleges certain overt acts. The

Government does not have to prove that all of these acts were

committed or that any of these acts were themselves illegal.

Also, the Government does not have to prove that Ian Norris

personally committed any of the overt acts.

The Government must prove beyond a reasonable doubt that

at least one member of the conspiracy committed at least one

of the overt acts charged in the indictment and committed it

during the time that the conspiracy existed for the purpose of

furthering or helping to achieve the objectives of the

conspiracy. You must unanimously agree on the overt act that

was committed.

(Tr. 36:9-37:2 (July 22, 2010 P.M.).) According to Defendant,

this instruction was erroneous because it failed to identify the

overt acts in the Indictment. The Court disagrees. The

instruction was not, by any measure, plainly erroneous because

any error actually benefitted Defendant.

Indeed, “[i]t is well settled that the government can

prove overt acts not listed in the indictment, so long as there

is no prejudice to the defendants thereby.” United States v.

Schurr, 794 F.2d 903, 908 n.4 (3d Cir. 1986). Thus, any

speculation by the jury as to whether an overt act was or was not

charged in the Indictment would, by definition, be harmless. 

Defendant acknowledges this point, but claims that only the acts

alleged in the indictment could support a conviction where, as in

this case, the court’s instruction expressly directs the jury to

consider the overt acts in the indictment. Some courts have
49

reached this conclusion. In United States v. Morales, for

example, the First Circuit held “the absence of any evidence with

respect to . . . [the] alleged [overt] acts is grounds for

reversal of [a] conspiracy conviction” where the instructions

given by the court “refer[] repeatedly only to the specific overt

acts alleged in the indictment.” 677 F.2d 1, 2 (1st Cir. 1982)

(citing United States v. Negro, 164 F.2d 168, 171-72 (2d Cir.

1947)), overruled on other grounds, United States v. Bucuvalas,

909 F.2d 593, 594 (1st Cir. 1990). 

However, the Court did not “refer[] repeatedly only to

the specific overt acts alleged in the indictment,” id.; its

description was decidedly general. At least under these

circumstances, the general rule that the government need not

prove the overt acts in the indictment is not displaced under the

law of this Circuit. See Schurr, 794 F.2d at 907-08 (describing

jury instruction requiring the jury to find “that an overt act

that had been listed in the indictment took place within five

years of the indictment” but nevertheless stating and applying

the general rule that the government need not prove the overt

acts alleged in the indictment (emphasis added)). Accordingly,

Defendant actually benefitted from the Court’s instruction to the

extent it suggested to the jury that a guilty verdict required a

finding that Defendant committed one of the overt acts charged in

the Indictment. See id. at 908 n.4 (alleged error was harmless
Defendant also contends the Court committed plain error 14

by not defining the term “overt acts” for the jury. This

argument is not persuasive. First, there is no good reason the

term ought to be defined. Second, there was an abundance of

evidence that Defendant and his co-conspirators committed overt

acts in furtherance of the charged conspiracy. It could,

therefore, hardly be said that the failure to define the term was

manifestly unfair as to constitute plain error.

50

to defendant and “if anything . . . hurt the government by

limiting the overt acts upon which the jury could rely”). 

Thus, the Court’s failure to recite the overt acts in

the jury charge was not plain error and is not grounds for

ordering a new trial.14

ii. Alleged Constructive Amendment of the

Indictment via the Preliminary Instructions

Defendant also objects to another aspect of the Court’s

instructions which he failed to raise at trial—the Court’s

preliminary instructions which provided the jury with a cursory

explanation of both parties’ legal theories of the case. And,

because Defendant failed to timely object to this instruction, it

is reviewed for plain error. During this overview, the Court

explained the case to the jury as follows:

[P]lease remember that I do not know any facts of this

case. I do not know the circumstances, and anything that

I may say now is simply to help you place the case in

context, not that I’m relating to you any facts of the

case, but I’m going to give you the Government’s theory

of the case, and then I’m going to give you the

defendant’s contention so that you get a sense of what is

going to be happening in the case. 

. . .
51

The indictment alleges that the obstruction of

justice charges involved some of the following

activities. The defendants and his co-conspirators

provided false and fictitious relevant and material

information in response to a Federal Grand Jury

investigation into the carbon products industry. 

The defendant and his alleged co-conspirators

prepared what the Government calls a script, that is,

some documents containing false material information

which was to be followed by anyone questioned by either

the Antitrust Division or the Federal Grand Jury.

Defendant Norris and his alleged co-conspirators

contacted other persons who had information relevant to

the investigation being conducted by the Antitrust

Division and the Federal Grand Jury and distributed the

so-called script to them with instructions to follow the

-- what the Antitrust Division calls the script when

answering questions posed by either the Antitrust

Division or the Federal Grand Jury. 

. . .

Now, that’s the Government’s theory of the case.

That’s what the Government will contend. The defendant

has pled not guilty to the indictment, and as we have

indicated and charged you, he is entitled to the

presumption of innocence. 

The defendant contends that Mr. Norris is not guilty

because he did not knowingly, corruptly persuade any

witness who was going to appear before a U.S. Federal

Grand Jury sitting in the Eastern District of

Pennsylvania. The defense also contends that the meeting

summaries at issue in this case were not prepared for the

purpose of influencing any witness’s testimony before the

United States Federal Grand Jury. Rather, the defendant

contends that the meeting summaries were prepared at the

request of counsel to aid the counsel’s fact gathering

process in representing Mr. Norris and his company. 

(Tr. 27:3-30:2 (July 13, 2010 A.M.) (emphasis added).) Defendant

argues the Court’s reference to the Antitrust Division’s theory

that Defendant was culpable for acts directed at “anyone

questioned by either the Antitrust Division or the Federal Grand
In any event, it is debatable whether the preliminary 15

instructions mean what Defendant says they do. The statements

made in the preliminary instructions do not state that Defendant

52

Jury” constructively amended the Indictment insofar as it

permitted a guilty finding on the Section 1512(b)(1) conspiracy

charge if the jury found Defendant had conspired to mislead the

Antitrust Division but not the grand jury.

Under the facts of this case, the preliminary

instructions were not plain error. For one, the Court clearly

instructed the jury they were not to apply these instructions,

which were a mere recitation of the parties’ respective theories

of the case. The Court’s actual jury instructions—which the jury

took with them to the deliberation room—instructed the jury that

it could only find Defendant guilty if he conspired to influence

testimony in the grand jury proceeding. (See Tr. 30:19-25 (July

22, 2010 P.M.).)

And, significantly, the final instructions the Court

provided further informed the jury that the final

instructions—and not the prior informational instructions—were

the Court’s explanation of the law to be applied. (See id.

13:10-12 (“We have now arrived at the point in the case where I

charge you before you go out to deliberate. That is to say, this

is the point where I tell you what the law is.”). For this

reason, the preliminary instructions could not have been

prejudicial to Defendant in this case. See United States v. 15
and his co-conspirators asked others to lie only to either the

grand jury or to the Antitrust Division. Thus, one could read

the statement to imply that a guilty finding would require

Defendant to have lied to both the grand jury and the Antitrust

Division. Under such a reading, the jury would not believe it

could find Defendant guilty without finding that Defendant’s

conduct was directed to the grand jury.

53

Hernandez, 176 F.3d 719, 735 & n.10 (3d Cir. 1999) (holding

preliminary instructions may be a basis for dismissing a

conviction, but clarifying that “[w]e only hold that when such

preliminary instructions are given, jurors must not be allowed to

guess at which of two conflicting instructions control their

deliberations. This can be avoided by simply informing jurors

which instructions control in the event they perceive a conflict”

(emphasis added)).

Consequently, the Court’s preliminary instructions do

not entitle Defendant to a new trial.

iii. Failure to Give an Instruction on the Right

to Withhold Testimony

Defendant next argues that the Court erred by not

giving the following requested instruction on the right to

withhold testimony:

[I]t is not “corrupt persuasion” to persuade a co-conspirator

to withhold, or fail to volunteer, information, no matter how

important that information may be to the grand jury

proceeding. In other words, you may not find someone has

“corruptly persuade[d]” another person if all he did was to

persuade co-conspirators to withhold incriminating

information. 

(Doc. no. 59.) Although Defendant timely requested this
54

instruction, the Court opted not to give it and instead charged

the jury as follows:

[T]o corruptly persuade, that means to corrupt another person

by persuading him or her to violate a legal duty, to

accomplish an unlawful end or an unlawful result or to

accomplish some other lawful end or lawful result by an

unlawful manner. To persuade, that means to cause or induce

a person to do something or not to do something.

(Tr. 39:13-19 (July 22, 2010 P.M.).) The instructions employed

by the Court were derived from the Third Circuit pattern

instructions for obstruction of justice. See Mod. Crim. Jury

Instr. 3d Cir. 6.18.1512B. Defendant, although apparently

recognizing that the instructions given were legally accurate,

contends he was entitled to the requested instruction based on

United States v. Farrell, which, as discussed earlier, held that

corruptly persuading under the Section 1512(b) “does not include

a noncoercive attempt to persuade a coconspirator who enjoys a

Fifth Amendment right not to disclose self-incriminating

information.” 126 F.3d at 488. 

Defendant’s argument can be easily rejected because it

is intimately tied to two of the factual misconceptions that

underscored his motion for a new trial based on a verdict against

the weight of the evidence. Namely, that (1) the scripts were

not materially false; and (2) Emerson’s retirement was not

illicit because he had no obligation to voluntarily disclose

information. Accepting these facts as true, Defendant reasons

that both the omission of price-fixing from the meeting summaries
Although the jury ultimately acquitted Defendant on 16

these counts, it did find Defendant guilty of conspiring to

violate the statutes they charged Defendant with actually

violating.

55

and the effort to facilitate Emerson’s retirement could have been

found by the jury to further an entirely lawful withholding of

information. But, as explained in rejecting Defendant’s weight

of the evidence argument, the evidence at trial showed the

scripts were materially false and that the circumstances

attendant to Emerson’s retirement were designed to influence his

testimony or prevent it altogether. Thus, there was no lawful

withholding of information in this case. In fact, to the extent

there was any withholding of information, it was in the context

of asking others to tell a story including affirmative lies which

deliberately left out material information. 

For these reasons, Defendant was not entitled to the

requested instruction and it was no error not to give it.

iv. Alleged Error in the “Nexus” Requirement

Instruction

Raising many of the same arguments advanced elsewhere,

Defendant claims the Court erred in its instruction on the nexus

requirement with respect to Counts Three and Four of the

Indictment. The Court instructed the jury as follows on the 16

nexus required for Count Three, which charged Defendant with

violating Section 1512(b)(1):

The Government must prove beyond a reasonable doubt that
56

Ian Norris’s actions would have the natural and probable

effect of interfering with the Grand Jury proceeding, that is,

the acts must have a relationship in time, causation or logic

with the Grand Jury proceeding.

If the defendant lacks knowledge that his actions are

likely to affect the Grand Jury proceedings, he lacks the

requisite intent to obstruct. However, the Government is not

required to prove that at the time of the corrupt persuasion

that [sic] the person who was the subject of the persuasion

was under subpoena or scheduled to testify at the Grand Jury

proceeding.

Testimony in the context of this case is evidence that a

witness gives or may give under oath.

(Tr. 40:6-19 (July 22, 2010 P.M.).) The nexus instruction as to

Count Four, which charged Defendant with violating Section

1512(b)(2)(B), was substantially similar. (See id. 43:4-6

(“[T]he Government is not required to prove that at the time of

the corrupt persuasion the records or documents were under

subpoena . . . .”).) According to Defendant, these instructions

improperly informed the jury that (1) the existence of a subpoena

was altogether irrelevant when, in fact, the absence of a

subpoena can negate intent; and (2) Defendant could possess the

requisite intent even if the individuals he targeted might not

actually testify. These objections were timely raised.

However, both of these arguments are founded in the

same misconception this memorandum has already dispelled: that

Aguilar requires actual knowledge an individual will testify and

would necessarily be governing with respect to the nexus required

for a Section 1512(b) violation. As explained earlier, the
57

standard of knowledge Defendant advances does not apply—at least

not to a Section 1512(b) violation. Viewed as a whole, then, the

instruction was entirely proper as to the nexus required. It

explained to the jury that there must be a connection in time,

causation or logic between the defendant’s actions and the grand

jury proceeding, but clarified that (1) a grand jury subpoena was

not required for a violation; and (2) actual testimony from the

witness was not required. These clarifying points track the

statutory language of Section 1512(f)(1), which plainly states

“an official proceeding need not be pending or about to be

instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). 

Thus, the nexus requirement instruction was not

improper and is not grounds for a new trial.

v. Failure to Distinguish in the Instructions

Between “Influencing” and “Preventing”

Defendant next contends the Court erred by not

instructing the jury on the distinction between “influencing” and

“preventing” in Section 1512(b)(1) given that Defendant was only

indicted for violating the statute (and conspiring to do the

same) by influencing the testimony of another. Defendant raised

this issue in the charge conference, and asked the Court to

instruct the jury as follows:

“Influencing” the testimony of another person does not include

conduct intended to prevent the person from testifying.

Instead, “influencing” means causing them to materially change

the substance of the testimony they will provide in a

particular grand jury proceeding.
58

(Doc. no. 59.) According to Defendant, the Court erred by not

instructing on the distinction between the terms because the jury

could confuse actions the Defendant may have taken to “prevent”

testimony with those designed to “influence” testimony and

improperly convict him on that basis. 

The parties do not dispute the distinction between the

two concepts, which has been recognized in cases construing

similar statutes. See, e.g., United States v. Dawlett, 787 F.2d

771, 773-74 (1st Cir. 1986) (distinguishing between “influencing”

and “preventing” because “one who attempts to kill a witness does

not intend to influence that person’s testimony, but rather to

eliminate it entirely”); see also United States v. Johnston, 472

F. Supp. 1102, 1106 (E.D. Pa. 1979) (“[A]n attempt to ‘influence’

an individual means an attempt to make him change his course of

conduct, that is, the course of his voluntary actions, and not an

attempt to destroy him as a voluntary actor.”). Instead, the

dispute concerns whether there was evidence supporting a jury

finding that Defendant sought to prevent another’s testimony as

to entitle Defendant to the instruction: the Antitrust Division

suggests “prevent” refers to physically incapacitating another

and that there was no evidence to this effect, while Defendant

contends non-violent means qualify as “preventing” testimony

under the statute and that the evidence concerning Emerson’s

retirement supports the requested instruction. 
59

Although the cases espousing the difference between

“prevent” and “influence” both hold a defendant did not influence

insofar as the witness in question was physically incapacitated,

the Antitrust Division’s limited interpretation of the statute is

too narrow. Nevertheless, it is not the case that Defendant’s

actions in this case could merely be characterized as preventing

testimony within the meaning of the statute. The evidence

concerning Emerson is illustrative of this point. 

At the outset, Defendant attempted to influence

Emerson’s testimony by getting him to tell the story laid out in

the scripts. When it became apparent that Emerson would be

unable or unwilling to do so, Defendant sought, literally

speaking, to prevent Emerson from testifying against Morgan. 

However, by doing so, Defendant again sought to influence the

testimony Emerson might give insofar as Emerson was an available

witness with material information. Thus, Defendant’s actions

were designed to make Emerson voluntarily “change his course of

conduct.” Cf. Johnston, 472 F. Supp. at 1106. This is much

different from instances where, as in Johnston and Dawlett, the

witness was killed to prevent any such voluntary choice. 

Because the evidence at trial concerning efforts to

prevent testimony was coextensive with Defendant’s efforts to

influence any testimony given, the instruction Defendant

requested would have only served to confuse the jury alongside
Additionally, Defendant’s proposed instruction is 17

legally erroneous to the extent it implies the witness must (as

opposed to may) testify in the official proceedings at issue. As

discussed at length earlier, the nexus requirement for a Section

1512(b) violation does not require the witness to actually

testify.

60

the proper instruction the Court gave. Accordingly, its 17

omission did not prejudice Defendant and does not entitle

Defendant to a new trial. See Davis, 183 F.3d at 250.

vi. Failure to Give a Missing Witness Instruction

Finally, Defendant argues the Court erred by not giving

the missing witness instruction that Defendant requested as to

three witnesses the Antitrust Division did not call: (1) Emilio

DiBernardo; (2) Michel Coniglio; and (3) Kotzur. All three were

employees of Morgan’s competitors during the time of the alleged

price-fixing and coverup. Defendant argues the failure to give

the instruction constitutes reversible error because Defendant

was entitled to such an instruction and was deprived of due

process by the Court’s refusal. The Antitrust Division, on the

other hand, asserts Defendant was not entitled to any such

instruction because (1) Defendant did not show the witnesses were

available to the Antitrust Division but not the Defendant; and

(2) the testimony given by the witnesses would have been

cumulative.

A missing witness instruction is appropriate only where

the witness in question (1) is available to one party and not the
61

other; (2) is not called to testify on behalf of the party to

whom the witness is available without an explanation for the

failure to call the witness; (3) is not prejudiced against the

party to whom the witness is available; and (4) would give

relevant, non-cumulative testimony. See United States v. ArizaIbarra, 651 F.2d 2, 15-16 (1st Cir. 1981); see also United States

v. Vastola, 899 F.2d 211, 235 (3d Cir.) (“[A] missing witness

instruction is not appropriate when the witness is available to

both the defense and the prosecution.”), vacated on other

grounds, 497 U.S. 1001 (1990). In explaining the standard for a

missing witness instruction, some Third Circuit cases suggest

there is an affirmative entitlement to a missing witness

instruction if the elements for the instruction are met. See,

e.g., United States v. Drozdowski, 313 F.3d 819, 824 n.3 (3d Cir.

2002) (stating a “defendant is entitled to an absent witness

instruction when the testimony of a witness can only be produced

by the Government” and that the instruction “is to be given in a

case where the government fails to produce evidence” (emphasis

added)). However, each party is the captain of their own case

and “a party’s failure to call a witness does not necessarily

imply that the witness’s testimony would have been unfavorable to

that party.” United States v. Busic, 587 F.2d 577, 586 (3d Cir.

1978), rev’d on other grounds, 446 U.S. 398 (1980). Thus,

district courts should not, as Defendant urges, treat missing
62

witness instructions as a matter of right.

Defendant contends a missing witness instruction should

have been given because the witnesses were foreign witnesses who

the Antitrust Division, by virtue of plea agreements, had

superior access to since the witnesses were beyond the Court’s

subpoena power. However, the evidence on this point confirms the

Court’s earlier finding that Defendant never made any effort to

obtain the testimony of these witnesses. Thus, Defendant’s

contention that the witnesses were not available to Defendant is

sheer speculation. And, notwithstanding the plea agreements, two

of the three witnesses were not available to the Antitrust

Division at all: (1) Coniglio could not be located prior to

trial; and (2) DiBernardo refused to testify for the Antitrust

Division and was no longer subject to prosecution under the plea

agreement because the statute of limitations had run on any crime

DiBernardo committed. Cf. United States v. Henries, 98 F. App’x

164, 166 (3d Cir. 2004) (holding the district court’s finding

that defendant had equal access to confidential government

informant was not clearly erroneous). 

While the Antitrust Division concedes Kotzur was

available, there is no indication his testimony would not have

been cumulative. Indeed, two other witnesses—Weidlich and

Kroef—both testified concerning the meeting between Defendant,

Weidlich, Kotzur and Kroef. The Antitrust Division represents
At oral argument on this motion, for the first time and 18

without any support or documentation, defense counsel claimed

that he had attempted to secure Kotzur as a witness. Because

this argument was not previously advanced, it is waived. In any

event, it strains credulity that such an important point, if

indeed true, would not have been raised by defense counsel at any

point prior to oral argument.

63

that they opted not to call Kotzur as a witness based on

difficulties in interpreting his German speech. This, itself, in

the absence of evidence to the contrary, is a satisfactory reason

for failing to call Kotzur as a witness. See Busic, 587 F.2d at

586. Coupled with the fact that (1) there was ample other

testimony presented on the topic Kotzur would have testified; and

(2) Defendant never cited Kotzur as a witness of interest before

asking the Court for a missing witness instruction, the Court 18

correctly concluded the jury should not have been given the

missing witness instruction Defendant sought. Thus, the Court’s

refusal to give the missing witness instruction is not grounds

for ordering a new trial. See Davis, 183 F.3d at 250. 

3. Attorney Testimony in Violation of Defendant’s

Attorney-Client Privilege

At trial, the Court permitted Keany to testify as a

witness for the Antitrust Division. This decision followed a

July 6, 2010 evidentiary hearing in which the Court sought to

determine whether Keany’s testimony would violate Defendant’s

attorney-client privilege. Defendant had vigorously argued that

Keany represented Defendant in his individual capacity while the
64

Antitrust Division claimed Keany represented only Morgan, which

had duly waived its attorney-client privilege. 

On consideration of the testimony presented at the

evidentiary hearing and the parties’ proposed findings of facts,

the Court concluded Defendant did not meet the burden of

establishing an attorney-client relationship under the

controlling law of this Circuit. See United States v. Norris, --

- F. Supp. 2d ----, 2010 WL 2733123, at *7 (E.D. Pa. July 12,

2010) (“Norris II”). The legal standard, as the Court explained,

required a corporate officer invoking an attorney-client

relationship with corporate counsel to demonstrate the following

elements:

First, they must show they approached [counsel] for the

purpose of seeking legal advice. Second, they must

demonstrate that when they approached [counsel] they made it

clear that they were seeking legal advice in their individual

rather than in their representative capacities. Third, they

must demonstrate that [counsel] saw fit to communicate with

them in their individual capacities, knowing that a possible

conflict could arise. Fourth, they must prove that their

conversations with [counsel] were confidential. And, fifth,

they must show that the substance of their conversations with

[counsel] did not concern matters within the company or the

general affairs of the company.

Id. at *4 (quoting In re Bevill, Bresler & Schulman Asset Mgmt.

Corp., 805 F.2d 120, 124-25 (3d Cir. 1986)). The Court concluded

Defendant, a former CEO of Morgan, did not meet this burden:

Defendant has not satisfied [the Court] that he sought

legal advice or representation from the Law Firm in general or

from Keany specifically. 

First, Norris did not approach the Law Firm or Keany for
65

legal representation. The evidence showed that the Law Firm

was contacted by Morgan (an existing client of the Law Firm)

. . . . At no time, did Norris ask the Law Firm or Keany

specifically to represent him personally during the grand jury

investigation. The conversation between Peppers and Norris

where Norris asked Peppers whether Keany could “continue to

represent him,” is not to the contrary. That conversation

reportedly occurred in late September 2001, a month prior to

the termination of the Law Firm’s representation of Morgan,

and long after the scripts had been produced by Morgan to the

grand jury. Bevill, 805 F.2d at 123 (prongs #1 & 2); see

Findings of Fact ¶¶ 2-4; 22-24.

Second, at no time did Keany think that he was

representing Norris individually. In fact, at some point

during Keany’s representation of Morgan, he advised Norris

that he should retain separate counsel. Bevill, 805 F.2d at

123 (prong #3); see Finding of Fact ¶ 24. 

Third, the conversations between Norris and Keany only

involved matters within Morgan or the business affairs of

Morgan. At the hearing, Norris failed to adduce any

conversation with Keany which was confidential or which dealt

with Norris’ personal liability or criminal exposure as

opposed to Morgan’s. Bevill, 805 F.2d at 123 (prongs #4 & 5);

see Finding of Fact ¶ 25. 

Id. at *6 (internal footnote omitted).

Raising many of the same arguments this Court has

already considered and rejected, Defendant continues to contend

that Keany jointly represented him as an individual and Morgan as

a corporation. Consequently, Defendant argues Keany’s testimony

violated his attorney-client privilege and that he is therefore

entitled to a new trial. Defendant also contends he is entitled

to a new trial because Keany improperly testified about European

price-fixing activity in the following manner:

Q: Mr. Keany, in representing Morgan in the -- in

the Grand Jury’s investigation . . . would it

have been of interest to you to know whether
66

Morgan was engaged in [price-fixing] in

Europe?

A: Yes, of course.

Q: Did you ask Mr. Norris whether Morgan was

engaged in any of that kind of conduct in

Europe?

A: I did.

Q: And what did he tell you?

A: He -- he told me that Morgan was not, but I

remember he had a particular way of expressing

it. He said -- about Europe, he said, could I

put my hand on my heart and swear that nobody

had fixed prices in Europe? I don’t think I

could do that, but Morgan didn’t. He was very

clear about that.

(Tr. 82:8-21 (July 19, 2010 A.M.).) According to Defendant, this

“hand over heart” testimony was (1) a violation of the Court’s

ruling permitting Keany’s testimony at trial; (2) prior bad act

evidence under Rule 404(b) of the Federal Rules of Evidence for

which Defendant was not provided the required pretrial notice;

and (3) substantially more prejudicial than probative as to

violate Rule 403 of the Federal Rules of Evidence. These

arguments are unpersuasive. 

First, the Court has already ruled that Keany’s

testimony did not violate Defendant’s attorney-client privilege

and denied a motion for reconsideration of this issue. And, in

so doing, the Court explicitly recognized and permitted the

testimony Defendant now takes issue with. (See id. 49:5-53:2

(considering that Keany would testify as to Defendant’s
In asserting the testimony at issue should not be 19

presented to the jury during argument of Defendant’s motion for

reconsideration, Defendant never referred to Rule 403 or Rule

404(b). Instead, he only objected to the proffered testimony on

attorney-client privilege grounds. (See, e.g., Tr. 49:1-3 (July

19, 2010 A.M.) (“Well, if there was such a communication between

Mr. Norris and Mr. Keany, that’s the heart of the attorney/client

67

statements concerning European price-fixing, but nevertheless

denying Defendant’s motion for reconsideration of the Court’s

ruling that Keany’s testimony would not violate Defendant’s

attorney-client privilege).) In fact, in Norris II, the Court

expressly recognized that Keany’s testimony might recount such

conversations to the extent that they related to the Antitrust

Division’s proffer concerning (1) Morgan’s internal

investigation; (2) interactions between counsel with the

Antitrust Division; and (3) the ultimate production of the

scripts to the Antitrust Division. See Norris II, 2010 WL

2733123, at *7 (explaining that, amongst other things, Keany’s

testimony would include that, “when Keany interviewed Norris and

his subordinates in connection with the internal investigation,

they all told him the same story they had agreed to tell about

their price-fixing meetings”). Thus, both of the Court’s rulings

on this issue did not bar mention of Defendant’s statements to

Keany as they related to the European price-fixing scheme.

Second, Defendant failed to timely object to Keany’s

“hand over heart” testimony under Rules 403 or 404(b) of the

Federal Rules of Evidence. See Fed. R. Evid. 103(a)(1) (“Error 19
privilege.”).) It was not clear from the context in which

Defendant objected that his objection was predicated on Rule 403

or Rule 404(b). Cf. Fed. R. Evid. 103(a)(1).

Moreover, the fact that Defendant raised certain

objections under Rules 403 and 404(b) in his proposed findings of

fact and conclusions of law did not preserve the instant

objections. Those earlier objections were based on Keany’s

proposed testimony that Defendant authorized him to transmit the

scripts to the Antitrust Division. Defendant argued this

testimony was improper under Rule 404(b) because it provoked a

propensity inference—namely, that Defendant likely persuaded

persons to lie before the grand jury because he had allowed Keany

to transmit the false scripts to the Antitrust Division. For

essentially the same reason, Defendant argued this testimony was

substantially more prejudicial than probative under Rule 403.

Thus, Defendant never presented to the Court any

argument remotely similar to the one advanced here: that

testimony regarding Defendant’s lie to Keany concerning European

price-fixing involvement was improper. And because the Court had

no occasion to make a definitive ruling admitting this evidence,

see Fed. R. Evid. 103(a) (“Once the court makes a definitive

ruling on the record admitting or excluding evidence . . . a

party need not renew an objection . . . .”), Defendant had an

obligation to bring this objection to the Court’s attention in

order to preserve it. See United States v. Schalk, 515 F.3d 768,

776 (7th Cir. 2008) (“If no objection was made that would put the

district court . . . on notice of the objecting party’s concern,

then the standard of review is for plain error.” (emphasis

added)).

68

may not be predicated upon a ruling which admits . . . evidence”

unless a “a timely objection . . . stating the specific ground of

objection” is made). This is particularly notable given that

Defendant had at least two opportunities to timely present his

objections: (1) during the Court’s consideration of Defendant’s

motion for reconsideration when the Antitrust Division explained

that Keany would testify regarding Defendant’s statements

relating to European price-fixing; and (2) when Keany actually
69

offered the supposedly offensive testimony. Consequently, the

Court reviews Defendant’s tardy objections for plain error. See

Fed. R. Evid. 103(d). Under this standard, Defendant’s argument

fails.

Indeed, even assuming arguendo the testimony was not

intrinsic to the charges for which Defendant was tried as

evidence of a scheme to obstruct justice, it would nevertheless

be admissible under Rule 404(b) as it plainly bears on

Defendant’s motive and intent to commit those offenses. The fact

that Defendant lied about European price-fixing to Keany, the

corporation’s attorney, in the midst of an internal investigation

relating to the very same conduct speaks to Defendant’s motive

and intent to obstruct justice (and conspire to do the same) in

the United States. Given this, it could hardly be said that the

testimony’s “probative value [was] substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403 (emphasis

added). 

Finally, although Defendant’s argument that the

pretrial notice required by Rule 404(b) was not given is

factually suspect based on the abovementioned proffer by the

Antitrust Division, it is clear—in any event—that Defendant’s

substantial rights were not impacted by any delay. Defendant was

apprised of the testimony well before it was presented to the
Pretrial notice under Rule 404(b) would, of course, be 20

unnecessary if the testimony presented by Keany was intrinsic to

the charges. See, e.g., United States v. Watkins, 591 F.3d 780,

786 (5th Cir. 2009) (“If evidence is intrinsic, it simply does

not implicate the requirements of Rule 404(b).”).

70

jury and had ample opportunity to prevent its admittance. See 20

United States v. Gonzalez, 501 F.3d 630, 640 (6th Cir. 2007)

(holding that no plain error was committed where defense counsel

was given notice one day before trial; the fact defense counsel

stated he “considered filing a motion in limine” after receiving

the late notice demonstrated that the evidence’s “admittance at

trial did not seriously affect the fairness, integrity, or public

reputation of the proceedings”).

Thus, Keany’s testimony—including his “hand over heart”

testimony—does not entitle Defendant to a new trial.

4. Failure to Comply with Discovery Obligations

Defendant contends he is entitled to a new trial

because the Antitrust Division failed to comply with its

discovery obligations by: (1) not producing material in

possession of Morgan, Schunk, and Carbone with whom the Antitrust

Division has cooperation agreements; (2) denying Defendant access

to foreign-located witnesses; and (3) redacting information in

witness notes turned over to Defendant that might have been

helpful to Defendant for impeachment purposes. In denying a

series of motions to compel filed by Defendant on May 23, 2010,

the Court rejected most of the arguments now advanced in the
71

instant motion. (See doc. no. 88.) Then, as now, Defendant’s

arguments lack merit.

i. Legal Standard

As a preliminary matter, it is necessary to distinguish

between the discovery permitted under Rule 16 of the Federal

Rules of Criminal Procedure and that required by due process

under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. 

Rule 16 contemplates a fundamentally limited range of pretrial

discovery. See United States v. Ramos, 27 F.3d 65, 68 (3d Cir.

1994) (“In contrast to the wide-ranging discovery permitted in

civil cases, Rule 16 of the Federal Rules of Criminal Procedure

delineates the categories of information to which defendants are

entitled in pretrial discovery in criminal cases.”). A Rule 16

violation does not automatically entitle a Defendant to a new

trial. Rather, the “extreme remedy of a new trial” is only

warranted where the “government’s failure resulted in a denial of

[the defendant’s] right to a fair trial.” United States v.

Lopez, 271 F.3d 472, 484 (3d Cir. 2001). 

“In addition to the government’s discovery obligations

under Rule 16(a), the government must also honor the defendant’s

constitutional rights, particularly the due process right Brady

v. Maryland established.” United States v. Jordan, 316 F.3d

1216, 1251 (11th Cir. 2003). Under Brady and its progeny, the

government must—consistent with due process—turn over material
72

exculpatory evidence to the defense. See United States v.

Reyeros, 537 F.3d 270, 281 (3d Cir. 2008) (“A Brady violation has

three components: the evidence at issue must be favorable to the

defendant; it must be material; and it must have been suppressed

by the prosecution.”). However, evidence is material as to

require a new trial only where “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Pennsylvania v.

Ritchie, 480 U.S. 39, 57 (1987) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).

ii. Discussion

Defendant’s primary contention is that the Antitrust

Division violated Rule 16 and Brady by failing to turn over

materials in the possession of three of the foreign corporations

with whom the Antitrust Division had plea agreements with: 

Morgan, Schunk and Carbone. Where, as here, document production

is sought, the government must permit discovery of items “within

the government’s possession, custody, or control.” Fed. R. Crim.

P. 16(a)(1)(E). The government’s Brady obligations extend

similarly: the government must turn over materials it does not

possess that are in its “constructive possession”—i.e., possessed

by others acting “on the government’s ‘behalf’” or “under its

‘control.’” Reyeros, 537 F.3d at 282. According to Defendant,

the Antitrust Division violated Rule 16 and Brady by not turning
73

over materials held by the three companies because the Antitrust

Division had “broad power to obtain overseas documents” from the

three companies since they “elected to enter into corporate

amnesty and plea agreements.” (Def.’s Mot. for Acquittal or, in

the Alternative, a New Trial, at 152.) Some courts have accepted

similar arguments. See, e.g., United States v. Stein, 488 F.

Supp. 2d 350, 364 (S.D.N.Y. 2007) (holding that materials in

corporation’s files are within government’s “control” for Rule 16

purposes because of cooperation agreement). 

However, as the Court explained in its July 24, 2010

order, the case-by-case test from United States v. Reyeros is

controlling on the question of whether the government must

produce materials possessed by another entity. In Reyeros, the

Court analyzed this question in the context of determining

whether the government had discovery obligations under Brady for

materials in possession of another sovereign. The Reyeros Court

explained that the following factors are relevant to this

analysis:

(1) whether the party with knowledge of the information is

acting on the government’s ‘behalf’ or is under its ‘control’;

(2) the extent to which state and federal governments are part

of a ‘team,’ are participating in a ‘joint investigation’ or

are sharing resources; and (3) whether the entity charged with

constructive possession has ‘ready access’ to the evidence.

Reyeros, 537 F.3d at 282 (quoting United States v. Risha, 445

F.3d 298, 304 (3d Cir. 2006)). Although the precise context in

which Reyeros tackled the constructive possession question
The test in Reyeros speaks only to the government’s 21

constructive possession of materials for Brady purposes. Given

that Rule 16 limits document production discovery to materials

within the government’s “possession, custody, or control” and

that Brady is rooted in constitutional due process, a strong

argument can be made that Rule 16 does not (or should not)

require as expansive disclosure of materials not in the actual

possession of the government. Cf. United States v. Gatto, 763

F.2d 1040, 1048 (9th Cir. 1985) (concluding document production

portion of Rule 16 does not have any “constructive possession

extension” and that it therefore “triggers the government’s

disclosure obligation only with respect to documents within the

federal government’s actual possession, custody, or control”). 

However, while a different standard may apply for

determining “custody” or “control” under Rule 16, it is

unnecessary to reach this issue because Defendant has not shown

how the alleged Rule 16 failings differ from those under Brady

which, as noted infra, the Court concludes do not entitle

Defendant to a new trial.

74

differs from that presented in the instant case, the

circumstances are not materially different. In fact, the mode of

analysis in Reyeros is even more compelling here, where the

materials at issue are in the possession of non-governmental

cooperating foreign entities. Under this test, Defendant 21

cannot show the Antitrust Division had the requisite control of

any of the materials possessed by Morgan, Schunk, and Carbone as

to have discovery obligations attendant to those materials.

While the companies entered into cooperation agreements

with the Antitrust Division, they were not—by any means—agents of

the Antitrust Division. And, contrary to Defendant’s contention,

the fact that the Antitrust Division could have possibly obtained

the materials does not give rise to any discovery obligations. 
Although the Court therefore need not consider whether 22

the evidence at issue was “material” as to constitute a Brady

violation, Defendant’s materiality argument is suspect. 

Defendant asserts the Morgan Board minutes, which Defendant

ultimately received pursuant to a Rule 17(c) subpoena after the

Antitrust Division rested, demonstrate a Brady violation because

they showed that the Morgan Board had entered into the plea

agreement for “political reasons.” Assuming arguendo the

Antitrust Division did have an obligation to turn over these

materials, this evidence does not support Defendant’s conclusory

determination that the Morgan Board minutes create a reasonable

probability of a different result.

Defendant’s argument concerning foreign witnesses is 23

largely the same as the one Defendant makes concerning his

alleged entitlement to a missing witness instruction. In

essence, Defendant contends that the Antitrust Division should

have facilitated the witness’ testimony in Defendant’s trial

because they had better access to the witnesses than the defense. 

75

See Reyeros, 537 F.3d at 284 (“[T]he mere fact that documents may

be obtainable is insufficient to establish constructive

possession.”). Instead, there must be a “showing that evidence

is possessed by people engaged in the investigation or

prosecution of the case.” Id. Because the materials were in

possession of non-governmental entities that were in no way

working with the Antitrust Division or acting on its behalf, the

Antitrust Division had no constructive possession of the

materials and, correspondingly, no discovery obligations that

would entitle Defendant to a new trial. Nor do Defendant’s 22

additional arguments that the Antitrust Division improperly

denied Defendant access to foreign witnesses and improperly

suppressed impeachment material by making redactions to the

documents the Antitrust Division produced.23
However, because the facts demonstrate that Defendant was not

denied access to foreign witnesses and because Defendant cannot

demonstrate the requisite materiality under Brady, Defendant’s

argument fails. This is so even though the Antitrust Division

redacted personal information from the witness list. Indeed,

these redactions did not—as the Court has already held—prejudice

Defendant’s case. (See doc. no. 88 n.4 (“Defendant does not

indicate how the redaction of personal information has actually

impeded his access to witnesses in preparation of his defense”).) 

For similar reasons, Defendant’s argument that the

Antitrust Division violated Brady by redacting notes of

interviews produced during discovery is equally meritless. In

rejecting this argument initially, the Court pointed to

Defendant’s speculation of material evidence under Brady: 

“Defendant proffers mere speculation that the Government has

exculpatory evidence and these speculations are insufficient to

compel disclosure.” (Doc. no. 88 n.4.) Defendant has still

failed to show (or even mention) how the absence of redactions

would have led to a reasonable probability of a different

outcome.

76

Thus, the alleged discovery violations do not entitle

Defendant to a new trial.

5. Prosecutorial Misconduct in the Antitrust

Division’s Closing Argument and Rebuttal

Finally, Defendant contends he is entitled to a new

trial based on statements made by the Antitrust Division during

the closing argument and rebuttal. Specifically, Defendant

asserts the Antitrust Division impermissibly: (1) referred to

several facts outside the record; and (2) turned the jury’s

verdict into a referendum on the prosecutor’s integrity. 

Defendant, having failed to timely object at trial, raises these

issues for the first time in the instant motion. Accordingly,

the alleged prosecutorial misconduct is reviewed for plain error. 
77

See United States v. Rose, 538 F.3d 175, 177 n.3 (3d Cir. 2008)

(“As to prosecutorial misconduct, because [the defendant] did not

object before the District Court, we review for plain error . . .

.”). To satisfy this standard, “the review [of the record] must

reveal ‘egregious error or a manifest miscarriage of justice.’” 

United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). In

undertaking this analysis, the court is cognizant that

“[i]mproper conduct only becomes constitutional error when the

impact of the misconduct is to distract the trier of fact and

thus raise doubts as to the fairness of the trial.” Marshall v.

Hendricks, 307 F.3d 36, 67 (3d Cir. 2002). 

i. Reference to Facts Outside the Record

Defendant first asserts that the Antitrust Division

impermissibly made reference to facts outside the record. In

particular, Defendant claims the closing argument was improper

because it: (1) invited speculation as to grand jury proceedings

for which there was no trial evidence; (2) stated that Defendant

lied to David Coker when there was no evidence to that effect;

(3) referred to Defendant’s “big executive office” when there was

no evidence of any such office; and (4) invoked the Enron scandal

by referring to Emerson as “the smartest guy in the room”—a term

that, according to Defendant, must have referred to “the bestselling account of the Enron scandal” titled “The Smartest Guys

in the Room: The Amazing Rise and Scandalous Fall of Enron.” 
Even if the Court were to credit as true Defendant’s 24

suggestion that the prosecutor must have been invoking the Enron

scandal by using the popular term “the smartest guy in the room,”

the facts of this case do not bespeak a manifest miscarriage of

justice as to satisfy the plain error standard.

78

(Def.’s Mot. for Acquittal or, in the Alternative, a New Trial,

at 172-73.) 

Underlying Defendant’s first three arguments is a

narrow conception of what the prosecutor may do during closing

argument. The last argument concerning the supposed allusion to

Enron is unfounded speculation that requires no additional

discussion. Indeed, the prosecutor’s first two statements 24

concerning the grand jury and Coker were permissible as

reasonable inferences that the jury could draw from the evidence

presented. See United States v. Green, 25 F.3d 206, 210 (3d Cir.

1994) (“[T]he prosecutor is entitled to considerable latitude in

summation to argue the evidence and any reasonable inferences

that can be drawn from that evidence.” (quoting United States v.

Werme, 939 F.2d 108, 117 (3d Cir. 1991))); see also Oliver v.

Zimmerman, 720 F.2d 766, 770 (3d Cir. 1983) (“It is not

prosecutorial misconduct to ask the jury to draw permissible

inferences from anything that appears in the record . . . .”). 

Defense counsel, apparently believing that a Section

1512(b) violation should be inherently suspect where there was no

testimony presented to a grand jury, repeatedly questioned

witnesses on cross-examination whether they had received a
It is unnecessary to delve into the facts supporting 25

this inference, however, because this isolated misstatement of

the evidence would not, in any event, be grounds for granting

Defendant’s motion for a new trial. The evidence of Defendant’s

guilt is substantial and there was evidence introduced of similar

lies being told by Defendant to others, such as Keany, in

furtherance of the scheme.

79

subpoena to testify before the grand jury. Given this evidence,

the prosecutor could reasonably ask the jury to infer why no one

had been subpoenaed—namely, because the scheme for which

Defendant was prosecuted was successful. Cf. United States v.

Glover, 558 F.3d 71, 79 (1st Cir. 2009) (prosecutor’s question in

closing, asking the jury “what other explanation can there be?”

was proper; it was merely “appealing to the jurors’ common sense

in asking them to credit the government’s explanation instead of

the defendant’s”). Similarly, there was ample evidence to

support the inference that Defendant lied to Coker. 

25

And the prosecutor’s third statement of a “big

executive office” was a mere rhetorical device prosecutors may

employ in summation after explaining they are stating “a matter

of opinion not of evidence.” Donnelly v. DeChristoforo, 416 U.S.

637, 646 (1974). Here, before making the reference Defendant

complains of, the prosecutor clearly explained she was “just

set[tting] the stage for [the jury], first, before we get

started.” (Tr. 19:19-20 (July 22, 2010 A.M.).) Consequently,

the prosecutor’s third statement was no error at all, let alone

plain error. Cf. Albela v. Martin, 380 F.3d 915, 930 (6th Cir.
80

2004) (no reversible error where prosecutor presented

hypothetical conversation to the jury because the prosecutor

prefaced the conversation by explaining he was presenting his own

beliefs).

Thus, the prosecutor’s alleged references to facts

outside the record are not grounds for setting aside Defendant’s

conviction and ordering a new trial.

ii. Turning the Verdict into a Referendum on the

Prosecutor’s Work on the Case

Defendant next contends he was prejudiced by the

prosecutor’s statements on rebuttal which “expressly equated a

verdict of guilt or innocence of [Defendant] with a rejection or

endorsement of the integrity of the prosecutor’s work on the

case.” (Def.’s Mot. for Acquittal or, in the Alternative, a New

Trial, at 173.) However, the prosecutor’s statements on rebuttal

were precipitated by defense counsel’s closing argument and

therefore served as a response to defense counsel that is best

understood in the context of what occurred at trial. 

Indeed, during Defendant’s closing argument, the

defense repeatedly attacked the Antitrust Division’s case in an

inflammatory manner. (See Tr. 69:17-29 (July 22, 2010 A.M.)

(stating the prosecution’s theory of the case that there was a

“nefarious intent to all of this is made up. It’s concocted,

it’s phony, and it melted away in the heat of this trial”); id.

83:1-3 (“Again, the suggestion that we’re hearing from the
81

prosecutors in this case, is whenever there’s something that

isn’t obvious, they take a nefarious read on it.”).) Some of

these attacks were plainly personal, suggesting that the

Antitrust Division’s case was brought due to the ambition of the

prosecutors. (See id. 86:18-21 (“The only relevance to the fact

that [Defendant] was the CEO and had a CEO’s office, is that that

made him a target for ambitious prosecutors.”); id. 100:12-14

(“There were a lot of witnesses, who appeared in this case, who

lack character, who lack the backbone to stand up to Government

Prosecutors, who want to try and win a case.”).) In fact,

defense counsel accused the Antitrust Division of tampering with

witnesses, explaining to the jury that Defendant’s sole witness,

Cox, bravely stuck to his story after the Antitrust Division

employed a tactic that allegedly manipulated another witness,

Muller, to acknowledge the meetings in question were price-fixing

meetings after initially denying the same:

And [Muller] goes to meet with the Government lawyers,

and he’s interviewed, and he said, yeah, I went to that

Toronto meeting, and it was to deal with joint venture issues

. . . .

And then the Antitrust Division lawyers stand up and

storm out with an implied, if not expressed threat, that if

that account stays, then Mr. Muller will face the same type of

prosecution that Mr. Norris has been going through.

So what happens? Mr. Muller suddenly has a change of

heart, a dramatic change of account, and says, you know what?

That meeting dealt -- it didn’t deal with joint ventures at

all. It was a price-fixing meeting.

. . .
If defense counsel had evidence pretrial that the 26

Antitrust Division tampered with witnesses, it should have moved

to dismiss the indictment for prosecutorial misconduct. See

United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998)

(outlining standard for dismissal of indictment based on

outrageous government conduct).

82

So Mr. Cox goes in for an interview, he provides his

account about the Toronto meeting, the same meeting that Mr.

Muller attended and what does the -- what does the Antitrust

Division attorneys do? They stand up and storm out the same

way the [sic] had with Mr. Muller. It worked that time.

Maybe it will work again with Mr. Cox. It didn’t work. Mr.

Cox had the backbone to stand up to the Antitrust Division and

stick with the truth.

Ladies and gentlemen, this case is about witness

tampering, but I -- I ask you, who’s doing the tampering in

this case? Mr. Cox showed character when he was subjected to

the heat that a crucible generates. Mr. Muller fell apart.

(Id. 57:18-59:5 (emphasis added).)26

After the Defendant’s closing and before rebuttal, the

Antitrust Division asked for and received a side bar conference

in which the Court and defense counsel were advised that the

prosecutor considered defense counsel’s statements a personal

attack to which she would respond on rebuttal. (See Tr. 3:11-15

(July 22, 2010 P.M.) (“I want to respond to it . . . . I cleared

it with my supervisors. I let them know what I was going to say. 

And I’m telling Your Honor that I’m going to respond. I can’t

let it go. It’s a personal attack.”).) The Court asked defense

counsel for his response. No objection was lodged. (See id.

3:22-24.) Thus, the prosecutor conveyed the following to the

jury at the conclusion of her rebuttal:
83

And finally, ladies and gentlemen, you heard Mr.

Curran say, both in his opening and in this closing, that

the only people who were influencing witnesses here, the

only influencing of witnesses that was done, was done by

the Government attorneys, by Mr. Rosenberg and myself.

And that’s an incredibly serious charge to level against

career prosecutors. 

That we were here for one week, trying this case,

doing our job, defending the laws of this country,

against those who would ignore them and hold them in such

low regard. Willing to put the Government’s evidence in

your hands, the hands of the jury, the guardians of our

criminal justice system, so you could decide the fate of

Mr. Norris. To personally and viciously disparage us by

saying that we did all

that because of an over -- not because of the

overwhelming evidence that we had, or the powerful

evidence that we had, but because of some malicious

unspecified motive that we harbor to influence the

testimony of the Government witnesses.

Ladies and gentleman, over the past week, you saw

and heard the witnesses. You’ve seen the evidence. It’s

up to you to judge their credibility and decide whether

you believe them or not. It’s up to you to weigh the

evidence, and it’s up to you, not Mr. Rosenberg, not me,

but you, to convict or acquit Mr. Norris.

You’ve watched Mr. Rosenberg and me over this past

week. And you also had an opportunity to watch Mr.

Curran and Mr. Gidley and their team of lawyers. You

decide the legitimacy of that Defense. I submit, ladies

and Gentlemen, that smacks of desperation.

I submit, ladies and gentlemen, that those personal

attacks on Mr. Rosenberg and myself are evidence of a

desperate, desperate Defense. Evidence that we’ve not

only done our jobs, but we’ve done our jobs well. 

And at the end of the day, ladies and gentlemen,

before we leave this trial, it’s you, whether or not Mr.

Norris is convicted or acquitted, it’s up to you; not Mr.

Rosenberg or not myself. You have the last word on Mr.

Norris’s guilt or innocence. You have the last one word;

guilty. Thank you.

(Tr. 11:12-12:25 (July 22, 2010 P.M.).) Defendant did not object
84

at any point during or after the Antitrust Division’s rebuttal. 

Now, however, Defendant claims the prosecutor’s rebuttal

statements entitle him to a new trial, pointing to United States

v. Gracia, 522 F.3d 597 (5th Cir. 2008) where the Fifth Circuit

held the prosecutor’s bolstering of witness testimony was plain

error. The Court disagrees because this case is different from

Gracia and cases like it.

Indeed, unlike Gracia, the prosecutor’s rebuttal in

this case did not vouch for the witness’ credibility or ask the

jury to believe the witnesses simply because the prosecutors were

doing their job. Cf. id. at 600 (holding prosecutor’s statements

were plain error where prosecutor told the jury that an acquittal

of defendant would mean that they believed the agents “got out of

bed” on the day they arrested the defendant and decided this was

“the day that [they] were going to start [a] conspiracy to

wrongfully convict [the defendant]”). Instead, and in sharp

contrast, the prosecutor’s rebuttal was a measured response to a

personal attack lodged by defense counsel. Such responses are

appropriate and not grounds for setting aside a defendant’s

conviction. See United States v. Young, 470 U.S. 1, 12-13 (1985)

(explaining that, “if the prosecutor’s remarks were ‘invited,’

and did no more than respond substantially in order to ‘right the

scale,’ such comments would not warrant reversing a conviction”);

see also United States v. Torres, 809 F.2d 429, 437 (7th Cir.
85

1987) (“In light of defense counsels’ arguments that the

Government’s witnesses were coached, programmed, and intimidated,

the prosecutor’s statements vouching for his witnesses and

asserting their bravery were fair responses.” (emphasis omitted)

(quoting United States v. Saenz, 747 F.2d 930, 941 (5th Cir.

1984))). 

Moreover, putting aside the fact that the prosecutor’s

response was tailored to responding to defense counsel’s

summation, Defendant’s right to a fair trial was not

substantially affected by the prosecutor’s rebuttal. After

closing arguments, when charging the jury, the Court explicitly

instructed that statements made by the attorneys are not evidence

to be considered in deliberation. (See (Tr. 15:11-18 (July 22,

2010 P.M.).) This cured the prejudice Defendant now alleges. 

See United States v. Retos, 25 F.3d 1220, 1224 (3d Cir. 1994)

(“Even if a prosecutor does make an offending statement, the

district court can neutralize any prejudicial effect by carefully

instructing the jury ‘to treat the arguments of counsel as devoid

of evidentiary content.’” (quoting United States v. Somers, 496

F.2d 723, 738 (3d Cir. 1974))). 

Thus, given that the prosecutor’s rebuttal statements

were a reasonable invited response and that any prejudice was

cured by the Court’s subsequent instruction, the prosecutor’s

statements are not plainly erroneous as to be grounds for
This conclusion is buttressed by the fact that, despite 27

being presented at least three opportunities to object—at side

bar, during the rebuttal and at the conclusion of the

rebuttal—defense counsel remained conspicuously silent. See

United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995)

(holding prosecutor’s remarks were not plain error because,

amongst other things, “Defense counsel . . . [was] articulate and

experienced” but “at the time of the prosecution’s remarks, he

heard nothing in the Government’s response warranting any

objection whatsoever”).

86

ordering a new trial. See Moore v. Morton, 255 F.3d 95, 113 27

(3d Cir. 2001) (“When the evidence is strong, and the curative

instructions adequate . . . the prosecutor’s prejudicial conduct

does not deprive a defendant of a fair trial.”).

V. CONCLUSION

For the foregoing reasons, Defendant’s motion for a

judgment of acquittal or, in the alternative, a new trial will be

denied.