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Anticipatory Obstruction of Justice is a New Weapon in the Arsenal of Federal Prosecutors

Last year, a University of Tennessee student garnered national headlines after he accessed Sarah Palin's email account while she was governor of Alaska and the Republican vice presidential candidate. The student, David Kernell, accessed Palin's Yahoo email account without having permission to do so. In November 2010, Kernell was sentenced to a prison term of one year and a day. For a federal criminal defense attorney, one of the noteworthy aspects of this case is that the majority of the sentence was not imposed for illegally accessing the email account; it was for anticipatory obstruction of justice.

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There are several federal provisions relating to obstruction of justice, but 18 U.S.C. § 1519 is particularly powerful. Most obstruction provisions require prosecutors to prove that a defendant's conduct was intended to disrupt a particular proceeding or investigation. Section 1519, enacted in 2002, eases the government's burden tremendously by removing the requirement that the obstructive conduct be intended to influence a specific investigation. It merely requires that the obstructive conduct be done knowingly and "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. . . ." In other words, there does not even have to be an investigation at the time the obstructive conduct takes place. If the defendant's conduct is motivated in part to obstruct an investigation if one occurs, then § 1519 applies.

After accessing Governor Palin's email, Kernell became concerned that his actions could be discovered by the police. According to court testimony, he then deleted files and records on his computer relating to his access of Palin's email account. Obviously, Kernell was unsuccessful. Kernell was indicted not only for illegally accessing Governor Palin's email, but also for obstruction under 18 U.S.C. § 1519. The court found that § 1519 did apply to Kernell's case because this provision does not require that there be an open investigation into the defendant's conduct; it merely requires that the defendant act in anticipation of such an investigation. Kernell's conviction under § 1519 for felony obstruction was a more serious matter than the misdemeanor conviction for actually accessing the email account.

Kernell's case is not the only high-profile case where prosecutors have used this powerful statute. In United States v. Alexander Wolff, et al., the defendants - a number of executives and several corporations - are charged with a conspiracy to illegally import less-expensive Chinese honey into the United States by misstating the country of origin. This was allegedly done in order to avoid paying the high import duties on Chinese honey; prosecutors charge the defendants did not pay approximately $80 million in duties and tariffs because of this scheme. The United States attorney has charged the defendants with violations of 18 U.S.C. § 1519 because the conspiracy involved filing false sales contracts and filing false records with the U.S. Department of Commerce, as well as destroying potentially incriminating documents and emails.

The consequences for violating this provision can be severe; there is a 20-year maximum prison term that undoubtedly appeals to some prosecutors. But the most significant aspect of this law from a prosecution standpoint is likely that there is no requirement under § 1519 to show that a defendant intended to obstruct a particular investigation, reducing the burden on the prosecution. These recent cases illustrate a previously unprecedented use of § 1519. Kernell and Wolff could prove to be bellwether cases if prosecutors continue to utilize this provision.