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Obstruction of (Contemplated) Justice

By Jeffrey M. Hanna

Imagine you are a federal prosecutor and the following fact pattern lands on your desk: A college student gains unauthorized access to the e-mail account of a candidate for federal office. The student changes the e-mail account password and then shares the new password on an Internet message board. Within one day, fearing a possible (but not-yet initiated) investigation, he takes steps to delete information from his computer related to his unauthorized access. Based on these facts, what charges would you consider? Identity theft in violation of 18 U.S.C. '1028? Wire fraud in violation of 18 U.S.C. '1343? A charge under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. '1030?

Each of those charges seems like a logical choice, in no small part because they were in fact charged in the case from which the fact-pattern was taken. See, United States v. Kernell, 667 F.3d 746 (6th Cir. 2012). But what about obstruction of justice, given that the alleged deletion of the information occurred before any government investigation or judicial proceeding had been initiated? Just such a charge was brought under 18 U.S.C. '1519, a relatively obscure but potentially powerful statute that has considerably expanded the scope of obstruction of justice. It is seeing increased use, and could prove to be a powerful tool in the federal prosecutor's toolbox. Reflective of its growing attention, as discussed further below, it is the subject of a pending U.S. Supreme Court case that will examine just how broadly this statute may reach.

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