Destroying Hard Drive Leads to Conviction for Obstructing Federal Investigation

The case is United States v. Hicks, an unpublished decision by the Fourth Circuit in which a child pornography suspect destroyed his hard drive in response to learning of the investigation.

According to the government’s brief, the defendant used an e-mail account to communicate with a suspected child pornography website and to purchase videos from it. Federal agents traced the e-mail account to the suspect, and they then went to the suspect’s home to ask questions. The suspect wasn’t there, but they left a business card with the suspect’s father, together with the request that the suspect contact them about his computer. The business card stated that the lead agent’s job position was as a “Child Pornography Team Leader.” The suspect called the next day and agreed to meet with the agents. During the subsequent meeting, the suspect admitted that he had seen some child pornography online and that he was familiar with some websites under investigation, but he denied having sought out child pornography or having saved any to his computer.

The agents asked the suspect if they could see his computer to confirm his story, but the suspect replied that they could not: When the suspect learned that the feds had dropped by, and when he realized that they were investigating him for child pornography, he had decided to destroy his hard drive. He “didn’t want to take any chances” of going to jail, he said. According to his brief, he had smashed his hard drive with a hammer, ran a magnet over it, and “thr[ew] the pieces out of his car window while driving.”

The feds apparently lacked the evidence to charge the suspect with possessing child pornography, but instead they charged and convicted him under a 2002 statute passed as part of the Sarbanes-Oxley Act, 18 U.S.C. 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

On appeal, the Fourth Circuit affirms in a per curiam opinion. First, the defendant argues that the 2002 law should not apply to him because it was intended to apply to financial crimes not individuals and personal hard drives. The court dismisses this in a footnote (see fn1) on the ground that the statute is unambiguous. The defendant then makes a Due Process challenge. Although it’s somewhat hard to follow, the argument seems to be that the computer was his own private property and that interfering with his control of the property somehow violated Due Process. The court disagrees, concluding that the passage of the statute and the notice given to him as to his charges satisfied the Due Process clause.

Finally, the suspect makes a Fourth Amendment argument, although the court muddles its brief analysis. The defendant argued that it violated his Fourth Amendment rights to convict him of destroying the computer given that it was his computer. According to the defendant, the Fourth Amendment gave him a right to control his property that was taken away when the law took away his right to destroy it, constituting an unlawful seizure. The court disagrees, stating that “there was no meaningful interference with Hicks’s possessory interests [and therefore no seizure] because he did not have a property right in the images of child pornography. See Helton v. Hunt, 330 F.3d 242, 247 (4th Cir. 2003).”

For what it’s worth, that’s not quite right. A possessory interest has nothing to do with a property right. Indeed, the whole point of contraband crimes is that they are crimes for having a possessory interest in what one cannot lawfully possess — that is, for possessing something for which one cannot have a valid property right. Helton v. Hunt says nothing to the contrary. Further, the defendant’s claim was as to the seizure of his physical hard drive, not contraband images which may or may not have been stored inside it. The court is right that there was no seizure, but it’s for a different reason: the government never took control of the property that the defendant elected to destroy. A seizure requires an actual submission to law enforcement control, see California v. Hodari D, which never occurred here. Anyway, it’s not a big deal: This is a non-precedential opinion, and the court was right that there was no seizure — and even if there was a seizure, there is no possible remedy here. Still, I thought I would point it out anyway.

Thanks to for the link.

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