Don't Touch That Evidence!

A friend and colleague of mine has been indicted by the federal government in what appears to be a test case of a Sarbanes-Oxley amendment to the federal criminal code. His case has broad ramifications for the day-to-day practice of criminal law.

Philip Russell of Greenwich has been charged with violating 18 U.S.C. Section 1519. That provision makes it a crime to tamper with potential evidence in "contemplation" of a federal investigation. Unlike pre-Sarbanes-Oxley tampering statutes, there need not be an investigation in place or even imminent as a predicate for prosecution. The statute appears to criminalize what was once considered prudence by defense counsel. The mens rea for such crimes is now virtually limitless. A press account

According to sources close to the case, Russell is alleged to have been consulted by a Catholic Church whose music director was being investigated for looking at child pornography on a church computer. He advised the client to fire the employee and to destroy the computer. Apparently, Russell himself destroyed the device. Shorlty thereafter, the feds came looking for the computer.

Section 1519 makes it far easier to charge someone with obstruction. Previously, a defendant need almost always have some knowledge of an actual proceeding, and the things destroyed must have some nexus or connection to the proceeding. Section 1519 relaxes those requirements. An open question is whether the section now deputizes all of us as junior G-men, mandated to preserve incriminating evidence.

Practitioners need to take special note of this prosecution. As we all know, the Fifth Amendment is only a testimonial privilege. Destruction of items in a pre-indictment, or even a pre-grand jury, phase may be hazardous to your liberty.

In general, my office has adopted a policy of turning contraban over to the Government  but refusing to answer questions about where the item has come from. This is easy, for example, with guns or drugs. But am I liable if I wipe the gun clean of fingerprints before turning it over to Club Fed? After all, Section 1519 criminalizes alteration of a tangible object.

The treatment of computers as evidence is especially vexing. Is it now unlawful to have a forensic fellow clean your client's computer when you learn he is wanted for questioning on a sex crime? Turning a computer over is never simple after all; IP addresses are almost as good as fingerprints in these matters.

I don't have answers to these questions. I merely alert the bar. Be careful. The feds are flexing their muscles and feeding on us.

Once again, the law of unintended consequences results in overcriminalization: A law designed to prevent accountants and lawyers from shredding forms has become a tool in child pornography prosecutions. No one will care much about that. But what happens tonight if you find cocaine in your child's bedroom?

(Recommended reading: "Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction Under the Sarbanes-Oxley Anti-shredding Statute, 18 U.S.C. Section 1519," 89 Cornell L. Rev. 1519 (2004)

Comments

[Lothar]

Counselor,

I'm disturbed by your rationale in this case. If destroying evidence in a criminal case is a crime in white collar corruption situations, then why should a lawyer be allowed to destroy a computer to pre-empt a legally warranted search?

While there appears to be some question of precedent with respect to process (as to when the computer would have been called into evidence), there does not appear to be a question as to the motive of the attorney who destroyed it. That motive was to destroy potentially incriminating evidence.

Look, if there are no images on the computer, then what's the issue? Child pornography is probably the most heinous crime there is. Surfing those types of images is not a victimless crime by any means. Certainly if this man walks, and either has been abusing children from his position of trust, or has been supporting the abuse of children by paying for the pictures, then justice will not have been served. Isn't serving justice what an attorney's job is after all?

I'm trying to figure out what the danger is in allowing the computer to be searched. I'm wondering if the attorney thought the police were going to plant illegal images onto the hard drive or something. That seems a little ridiculous, though no one really gets a chance to watch the police computer forensic guys do their jobs. That would seem to be a separate area of concern.

[S.cotus]

Lothar, First of all Norm isn’t take a position. Second, he was thinking that if no charges are pending, there is no obligation to preserve evidence. Thankfully, Americans are under no affirmative action to act as police when they know of a crime being committed. There are exceptions – provided for by statute to certain classes of people that affirmative enter such class such as under S-O -- and the government seem to be trying to enlarge such a class/

Possession of child pornography is not the most heinous crime. Do you really think that possession of pictures of crimes is really as morally reprehensible as the underlying crime? Murder, rape, are far worse. So is genocide and cruelty to animals. While it is a crime, it people seem to be in a panic over possession, which means that people charged with something else, but possession is uncharged but introduced are made to look like demons.

[lothar]

Fortunately, I am not a victim of child abuse. But I would imagine a lot of victims of child sex abuse might disagree with you on where you rate it in the big scheme of heinous crimes. While rape and murder do happen here on a regular basis, adults are better equipped to protect themselves and it's been a long time since any genocide occurred in the U.S., though it is a heinous crime nonetheless. But I am a bit disturbed by your somewhat cavalier dismissal of child sexual abuse from the top heinous crime list.

Did the lawyer search the computer himself? If the lawyer found child porn on the computer, and opted to destroy it anyway, then that leaves us in a fairly ugly place, doesn't it?

Upon re-reading Mr. Pattis' post, I can see he is careful about taking a position, but there is an implication here against the government's case and, though I consider myself a liberal, I'm all for full prosecution of all the child porn statutes, whether it's possession or sale or whatever. There is simply zero excuse for any action that would impede a police investigation into these allegations, no matter how premature it might seem under a trial attorney's book of technicalities.

[Mike]

lothar: Please give me your computer passwords so I can make sure you'e not cheating on your taxes or committing any other crimes. I will sign a witten agreement (and put money into trust) that I will not misuse any password or personal information, but rather, will only audit your life for violations of the law.

If you do not send me your passwords, I will infer that you are a criminal.

[S.cotus]

Lothar, So what? I imagine that victims of genocide and survivors of murder consider those crimes to be the worst in the world. Secondly, possession of child pr0n is NOT child abuse. Indeed, until recent Supreme Court decisions said so, someone could be convicted of possession even for possessing materials that were genated w/ no children.

Of course there is an implication against the government's case. In fact, the government has a very tough montain to climb to convict people, and the government is presumed to be wrong on both the facts and the law. That is the way it works in the US.

But, since you have no sent in your passwords to Mike, I have to conclude that you have something very bad to hide.

[Mike]

I have to conclude that you have something very bad to hide.

That is how it seems. I'm not sure why people like lothar are unamenable to periodic "life audits."

Do they have something to hide? If not, then why not let me confirm their innocence?

Lothar: Although my offer still stands, in the alternative I will send your hard drive to DOJ for a little "looksie." Since you have nothing to hide, you shouldn't object to this. E-mail me and I'll get you my FedEx account # so you can get that hard drive to me asap. I'll have it copied and returned in under 24 hours. Thanks.

[S.cotus]

Mike, I don't know if your method would pick up things on his hard drive that existed in the past, because the you should probably give the FBI the physical hard drive. Not a copy or even an image.

It is very important that we not just understand what he currently has in his hard drive, but every thing he had on his hard drive on the past. This includes all images viewed (which are saved to the HD), as well as links visited. It will be for the jury to determine whether they are child pr0n or not . But since the government has a near 100% accuracy rate (and juries believe them with or without experts), he had nothing to fear.

Oh, it will take more than 24 hours to analyze it, but the loss of use of all of his hard drives and data is a small price to pay for FREEDOM !

[Mike]

S.Cotus: You are right. He should willingly forsake access to his computer for months if need be. After all, that is the price of liberty.

[Moe Levine]

Norm,

this is really serious stuff

thanks for reporting

please stay on this kind of issue, rather than getting into Democratic Party Politics.

While every state has lawyers against false statements, evidence destruction, etc., we have gotten along just fine w/o overly broad laws like 1519

again, thanks,

Moe