In United States v. Kernell, No. 10-6450, 2012 WL 255765 (6th Cir. Jan. 30, 2012), the Sixth Circuit affirmed the defendant’s conviction and held that the obstruction of justice provision of the Sarbanes-Oxley Act (“SOX”) applies to and criminalizes the destruction of documents before the commencement of a federal investigation when it is done with the intent to hinder a foreseeable investigation. On September 16, 2008, David Kernell ‒ a college student and son of a Democratic state representative in Memphis ‒ hacked into Sarah Palin’s personal e-mail account and posted material online when she was running for vice president. Kernell was charged with four felonies, but the jury only convicted him of a misdemeanor, for intentionally accessing an account without authorization, and a felony, for the anticipatory obstruction of justice because he attempted to remove evidence of his actions from his hard drive. As it related to the felony, before any investigation was initiated, Kernell deleted the images he downloaded from Palin’s e-mail, cleared the cache on his internet browser, installed a new internet browser, and ran a program defragmenting his hard drive. Kernell was charged under 18 U.S.C. § 1519, which prohibits the knowing destruction or alteration of any record “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 in relation to or contemplation of any such matter or case . . . .” 18 U.S.C. § 1519 (2002). On appeal, Kernell argued, among other things, that the statute’s requirement that the defendant act “in contemplation of an investigation” is unconstitutionally vague because it does not outline what a defendant must know about an investigation before he or she is prohibited from taking actions. The court rejected Kernell’s argument noting that although the statute is “very broad,” it requires that the defendant act with an intent to impede, obstruct or influence a pending or contemplated investigation or proceeding.
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SOX obstruction provision applies to pre-investigation acts
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