2015.45: Problems in Evidence Tampering I


Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It's illegal for him to continue possessing the images. So you can't advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

Under state law (Texas Penal Code section 37.09),

A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he: (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; …

So if you don't know that an investigation is pending or in progress, you aren't breaking Texas law by advising your client to destroy the hard drive. If you do, you are.

Under federal law, though (18 U.S.C. § 1512(c)), you don't have to know that an investigation is pending to be liable for tampering with evidence:

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.

What does "corruptly" mean in this context? Hell if I know. I'll bet Philip Russell didn't think he was acting corruptly when he destroyed the child-pornography-containing hard drive, and he didn't know that an investigation was ongoing. But he got charged with violating section 1512(c) and 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.

—pled them down, and wound up suspended from practicing law and confined to his home for six months for misprision of a felony. (Things could have been much, much worse. Much.)

Your client could get the hard drive out of his own possession without destroying it by delivering it to someone who doesn't know what it contains (not you, for God's sake), but he's still arguably concealing it.

It's a crime to conceal or destroy the hard drive with the intent to make it unavailable in an investigation. So it's a crime to advise someone to destroy the hard drive with the same intent. How would the government prove your intent in advising the client? Well, you're a criminal-defense lawyer; the government would probably assume that your advice to your client was aimed at making the hard drive unavailable in an investigation. Sure, it's an invalid assumption, but that won't prevent an indictment.

You can't tell your client to do the smart thing and destroy the hard drive. (Why is it smart? Because the penalty for possessing child pornography is much more severe than the penalty for tampering with evidence, and if the client destroys the hard drive properly and keeps his mouth shut there will be no evidence that he has tampered with evidence.) You can't tell your client to do the dumb thing and keep the hard drive. What do you do?

We are problem solvers. We hate for the answer to be, "I can't answer that." But "I can't answer that" is the only possible advice in this situation.

You could, of course, instruct your client on certain aspects of the law: possession of child pornography is a crime; tampering with evidence is a crime; without the hard drive the government is likely to have a hard time proving that you tampered with evidence or that you possessed child pornography; if the government gets its hands on the hard drive they won't have a hard time proving that you possessed child pornography, which will certainly land you in prison; don't talk to anyone about the contents of the hard drive.

You can see how an appropriate instruction on the law might allow an intelligent client to draw his own conclusion.


12 responses to “2015.45: Problems in Evidence Tampering I”

  1. Mark:

    Your posts are always enlightening and insightful.  I look forward to reading your blog when I can.  Keep up the great work you do for your clients and in enlightening the rest of us.

    Jeff

  2. Two thoughts: first, i suppose the mom who finds mj in her kids pocket is in the same position, assuming she does the smart thing and throws it away.
    Second, the cca granted pet on a tampering case where the issue is whether “pending” can mean the same thing as “impending” i.e. about to happen. The court of appeals said it did.

  3. This is one of the subtle ways that legal issues influence the design of software products.   I was involved in developing email server software at a  large Software company in the 1990's that was embroiled in some high profile  anti-trust disputes with the DOJ.   While the dispute continued those of us working on the email server realized that all of the work we were putting into 'backup' features was not going to be a strong a selling point.   In fact, the opposite feature was required, something that would ensure that all old email was destroyed and could not be recovered.    Later in my career I could appreciate this feature again when my work accounts were placed on 'litigation hold' during various patent disputes.  In the consumer marketplace (gmail, hotmail, etc…), the necessity for these kinds of features hasn't become to apparent yet.

  4. Many who read this post probably think they are not affected by this law, but, particularly at this time of year, we all are.  The preparation of income tax returns are covered.  If you are audited and falsifiy or destroy records that were used in preparing the return you could be charged with tampering with evidence.  I prepared tax returns for 30 years and the scenario Mark describes is very familiar.  Three or four times a year, someone, maybe a client maybe not, would ask me if a certain income had to be reported (yes) and how it could be hidden or how a personal expense could be treated as a business expense.  

    I would reply that first of all, there is no tax preparer-client privlege and if asked I would have to be truthful about the conversation.  I would then explain what the law is and what the IRS policies and procedures are and the consequences of signing a false tax return.

  5. Where does that leave encryption in such a case?  You would certainly be "concealing" the data, sort of.  The data would be unreadable without the correct password(s) / keys, although arguably you wouldn't be changing the data, only how it can be read.

    Even more concerning, where would that leave encryption in general?  Legal if you implemented the encryption prior to having potentially illegal data stored on a device?  Illegal if you intend to ever have data that could be considered illegal on the device?  Does it matter?  By encrypting the data, it couldn't be proven that illegal data exists on the drive unless you were compelled to provide the password, which in and of itself is a legal battle that doesn't seem to have a clear answer right now….

     

  6. What attorney takes possession of his client's computer? And further, what attorney then destroys the hard drive?

    The issue of destroying potential evidence here seems really problematic because (I don't know if the attorney looked at the pics) what the client perceived to be illegal may not have been illegal at all.  I hope the attorney  didn't view the evidence or he could be charged. It seems the larger conundrum for an attorney  is not being able to view the potentially illegal evidence so the attorney can give proper advice. It's possible there's no illegality.

     Apart from this attorney's actions, this seems to argue that all hard drives must be retained forever if there is no statute of limitation on whatever the government decides the client might have on the drive. Plenty of people replace their computers with newer models yearly, or simply because it's cheaper than dealing with a trojan or worm. I can't imagine anyone NOT destroying their hard drive when they replace a computer.

    Of course,  had I murdered someone, I wouldn't be discussing it via chat with my friends (as a 19 year old Las Vegan recently did).

     

     

    • I think the civilian has a more plausible claim that he destroyed the hard drive for some lawful reason than the criminal-defense lawyer has that he advised his client to destroy the hard drive for some lawful reason.

  7. An interesting conundrum. Possessing the material is illegal. So, if you do not tell the client to cease possessing it, then you are effectively causing him to continue to violate the law.

    On the other hand, if you counsel him to stop violating the law, you are effectively concealing crime by preventing it.

  8. I was charged with tampering with government evidence. I was in a wreck on 3/19 and a shooting. The same day I was in a wreck/shooting I was suppose to start a new job. I couldn’t go because of my injuries so later on in the months I was told that I qualify for crime victims compensation. I was told crime victims would pay me even if I was going to start a new job so I sent in my crime victims application. And it had all of my new job information. But the job didn’t want to give me a letter stating that I was going to start work on 3/19. So I created a letter and sent it in to crime victims I never lied on my application. I just made a letter and said it was from my employer. My question is how could it be tampering with government evidence if everything I said on the application was true. But my employer said I wasn’t going to start.

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