This article appears on the Crime and Federalism Blog http://www.federalism.typepad.com/crime_federalism and has been republished courtesy of The Cool Justice Report http://cooljustice.blogspot.com 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.
According to sources close to the case, Russell is alleged to have been consulted by a … 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. Shortly 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 contraband 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)NOTE—Russell pleaded innocent today. His lawyer said: “Mr. Russell maintains his innocence to these charges. He plans to continue with his law practice. He’s optimistic that if the case is not dismissed, that a jury will find his conduct was lawful.”