RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-6450
v.
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Defendant-Appellant. -
DAVID C. KERNELL,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 08-00142-001—Thomas W. Phillips, District Judge.
Argued: October 25, 2011
Decided and Filed: January 30, 2012
Before: MOORE and COLE, Circuit Judges; BECKWITH, Senior District Judge.*
_________________
COUNSEL
ARGUED: Wade V. Davies, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C.,
Knoxville, Tennessee, for Appellant. Mark L. Krotoski, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Wade
V. Davies, Anne E. Passino, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C.,
Knoxville, Tennessee, for Appellant. Mark L. Krotoski, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., D. Gregory Weddle, ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
*
The Honorable Sandra Beckwith, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.
1
No. 10-6450 United States v. Kernell Page 2
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OPINION
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COLE, Circuit Judge. Defendant David Kernell was convicted of obstruction of
justice under 18 U.S.C. § 1519 for deleting information from his computer that related
to his effort to gain access to the email account of then-Alaska governor and Vice
Presidential candidate Sarah Palin. Section 1519, passed as part of the Sarbanes-Oxley
Act of 2002, prohibits the knowing destruction or alteration of any record “with the
intent to impede, obstruct, or influence the investigation . . . of any matter within the
jurisdiction of any department or agency of the United States . . . or in relation to or in
contemplation of any such matter or case . . . .” Kernell argues that § 1519 is
unconstitutionally vague, and that there is not sufficient evidence to support his
conviction. We AFFIRM the conviction and sentence.
I.
During the 2008 Presidential election, David Kernell was a student at the
University of Tennessee, Knoxville. In September of 2008, it was reported in the New
York Times that Sarah Palin, the then-governor of Alaska and Republican candidate for
Vice President, used the email address “gov.palin@yahoo.com” (“the Palin email
account”) for personal and official business.
In the early morning of September 16, 2008, Kernell attempted to gain access to
the Palin email account. To gain access to a Yahoo! email account without knowing the
password, a user could type the user ID1 into the designated space on the Yahoo! home
page and click the “help” link. From there, the user could access the “forgotten
password” feature. The feature would prompt the user to provide the birthday, country
of residence, and zip code of the user of the account. If this information were correctly
provided, the user then answers a “secret question,” which had been selected when the
1
The user ID is the first portion of the email address listed before the “@yahoo.com”
component—in this case “gov.palin.”
No. 10-6450 United States v. Kernell Page 3
account was opened. Upon answering the question correctly, the user would be able to
create a new password, and then use that password to access the account.
Kernell used this procedure to gain access to the Palin email account. Using
information publicly available on the internet, Kernell entered Governor Palin’s date of
birth, country of residence and zip code. After a couple of unsuccessful attempts,
Kernell guessed the correct answer to the secret challenge question: “where did you meet
your spouse?” Kernell then changed the password on the Palin email account to
“popcorn,” and logged on to the account.
Soon after accessing the Palin email account, Kernell logged on to the internet
message board “4chan.org”. 4chan is known for its culture of anonymous posting, and
often contains content that is offensive or socially unacceptable. Kernell began a
message thread on the /b/, or “random,” board claiming to have “hacked,” or
surreptitiously accessed, the Palin email account. He supported his claim with screen
shots of the Palin email account’s Inbox, as well as at least one photograph of members
of the Palin family taken from attachments to the emails in the account. At the end of
the thread, he disclosed the new password he created for the Palin email account,
allowing any user reading the thread to access the account. 4chan site administrators
took down the thread soon after the password was shared.
While this first thread was still active, one anonymous 4chan user claimed to
have informed the FBI of Kernell’s activities. Other users encouraged Kernell to
distribute the information before government officials discovered the access.
Approximately an hour after Kernell initiated the thread, a 4chan user logged into the
Palin email account, changed the password to freeze out other users, and informed a
Palin aide that the account had been hacked.
The next day, September 17, 2008, Kernell returned to 4chan and began a new
thread that began “Hello, /b/” (“the Hello post”). In this thread, Kernell took credit for
hacking the Palin email account, and described in detail how he accomplished the task.
Kernell claims that he disclosed the password to the 4chan community because he
wanted the information “out there,” and claimed to have deleted information from his
No. 10-6450 United States v. Kernell Page 4
computer as a result of his fear of being investigated. Kernell also criticized the
individual who alerted the Palin staffer to the hack.
Later computer forensic examinations revealed that Kernell had taken numerous
actions to remove information from the computer relating to his access to the Palin email
account. At some point between the initial post on 4chan and the evening of September
18, Kernell cleared the cache on his Internet Explorer browser, removing the record of
websites he had visited during that period. He also uninstalled the Firefox internet
browser, which more thoroughly removed the record of his internet access using that
browser, and ran the disk defragmentation program on his computer, which reorganizes
and cleans up the existing space on a hard drive, and has the effect of removing many
of the remnants of information or files that had been deleted. Finally, Kernell deleted
a series of images that he had downloaded from the Palin email account.
On the evening of September 18, 2008, the FBI contacted Kernell’s father to
determine Kernell’s whereabouts. The next day, Kernell contacted FBI investigators and
attended a brief phone meeting arranged by Kernell’s attorney. Kernell called the FBI
again on the evening of September 20, but never provided any information to
investigators, and later on September 20 the FBI executed a search warrant for Kernell’s
apartment and seized his computer. The seized computer, despite the deletions,
contained numerous items related to accessing the Palin email account, including a draft
of the “Hello” post.
A federal grand jury indicted Kernell on four separate offenses. Count One
alleged that Kernell committed identity theft in violation of 18 U.S.C. § 1028(a)(7).
Count Two alleged that Kernell committed wire fraud in relation to improperly obtaining
electronic information belonging to Palin in violation of 18 U.S.C. § 1343. Count Three
alleged Kernell improperly obtained information from a protected computer in violation
of 18 U.S.C. § 1030(a)(2)(C). Finally, Count Four alleged Kernell obstructed justice
stemming from the deletion of information on his computer, in violation of 18 U.S.C.
§ 1519, a component of the Sarbanes-Oxley Act of 2002.
No. 10-6450 United States v. Kernell Page 5
Before trial, Kernell asserted that Count Four should be dismissed, arguing
among other things that the statute was unconstitutional. When this argument was
rejected by the district court, Kernell further argued, in a motion for judgment of
acquittal at trial, that the government failed produce sufficient evidence to sustain a
conviction under § 1519. This too was denied, and the case went to the jury. The jury
returned an acquittal on Count Two, deadlocked on Count One, found Kernell guilty on
the obstruction of justice charge in Count Four and a lesser-included offense under
Count Three. Kernell again moved for acquittal with regard to the obstruction of justice
charge, restating the arguments from his previous motions. His motion was denied.
Kernell appeals his conviction, seeking only the dismissal of Count Four.
II.
We review the district court’s denial of Kernell’s challenge to the
constitutionality of 18 U.S.C. § 1519 de novo. United States v. Krumrei, 258 F.3d 535,
537 (6th Cir. 2001) (quoting United States v. Hill, 167 F.3d 1055, 1063 (6th Cir. 1999)).
A criminal statute is unconstitutionally vague if it “defines an offense in such a way that
ordinary people cannot understand what is prohibited or if it encourages arbitrary or
discriminatory enforcement.” Krumrei, 258 F.3d at 537 (quoting United States v. Avant,
907 F.2d 623, 625 (6th Cir. 1990) (internal quotation marks omitted)). For challenges
to the statute that do not implicate First Amendment concerns, the “defendant bears the
burden of establishing that the statute is vague as applied to his particular case, not
merely that the statute could be construed as vague in some hypothetical situation.” Id.
at 537 (citing Avant, 907 F.2d at 625).
For appeals from a denial of a judgment of acquittal based on the sufficiency of
the evidence, “the standard of review is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found essential
elements of the crime[.]” United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008)
(quoting United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (alteration in
original)).
No. 10-6450 United States v. Kernell Page 6
A. Standing/Actual Knowledge of the FBI Investigation
The government argues that Kernell does not have standing to challenge the
constitutionality of 18 U.S.C. § 1519 as facially void for vagueness because the statute
clearly applies to Kernell’s conduct. Even if a statute might be vague as it relates to
other, hypothetical defendants, courts will not entertain vagueness challenges on behalf
of a defendant whose conduct clearly falls within the ambit of the statute. “[T]he
dispositive point here is that the statutory terms are clear in their application to the
plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must
fail.” Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2720 (2010); see also Hill,
167 F.3d at 1064 (“Hill lacks standing to attack Tennessee’s gambling statute as it might
be applied to others.”) To support the idea that § 1519 clearly applies to Kernell’s
conduct, the government asserts that Kernell had actual knowledge of the FBI
investigation, in the form of two postings on the Kernell’s 4chan threads in which
anonymous commentators state that they have reported Kernell to the FBI. If Kernell
has actual knowledge, § 1519 would clearly apply to him, and we would not need to
decide whether the “in contemplation” language is impermissibly vague, as Kernell
argues.
The government’s actual knowledge theory is similar to the theory used in
another § 1519 case, United States v. Fumo, 628 F. Supp. 2d 573 (E.D. Pa. 2007). Fumo
involved a Pennsylvania state senator who had been indicted for a host of offenses
relating to alleged corrupt conduct stemming from his position, including obstruction of
justice under § 1519. Fumo argued, as Kernell does, that the “in contemplation”
language was vague as applied to him. Fumo, 628 F. Supp. 2d at 598. The court
dismissed this argument, holding that Fumo had knowledge of the actual investigation
against him. Id. The basis for this conclusion was the fact that, prior to the conduct
which formed the basis of the indictment against Fumo, the local press extensively
reported on the investigation and Fumo and his associates had received grand jury
subpoenas in connection with the allegations. Id.
No. 10-6450 United States v. Kernell Page 7
Kernell’s alleged knowledge of the FBI investigation is not nearly as extensive
as the knowledge in Fumo. As a preliminary matter, the first 4chan posting could not
have provided Kernell actual knowledge of the investigation, because the investigation
had likely not begun at that point. The first posting threatening to report Kernell to the
FBI came approximately one hour after Kernell first gained access to the Palin email
account. There is no evidence that the FBI had begun an investigation of the Palin email
account hack at that early point. Kernell could not have had actual knowledge of an
investigation that did not yet exist—at most, he had knowledge that some party had
provided information that was likely to result in an investigation at some point in the
future. As discussed below, this might be sufficient to establish the contemplation of an
investigation prong of § 1519, but it does not represent the kind of actual knowledge of
an ongoing investigation found in Fumo.
Moreover, there is a difference between knowing that conduct has been reported
to the authorities and knowing that an investigation is ongoing. In Fumo, there was no
question that an investigation was ongoing at the time the defendant engaged in the
obstructive conduct. Fumo and his associates destroyed documents relating to an
investigation that had been in process for over two years, and was widely reported in the
media. Here, the posts did not state that the FBI was investigating Kernell’s conduct,
but only that the FBI might have been alerted to Kernell’s conduct. While it would be
reasonable to infer that an alert to the FBI would result in an investigation, a reasonable
inference of an investigation is again more similar to contemplating an investigation than
having actual knowledge of an investigation.
Finally, even if the distinction between knowledge of a tip to authorities and
knowledge of an investigation is merged, the government presumes that Kernell (or a
reasonable person in Kernell’s position) would have believed the anonymous posters had
actually reported him to the FBI. This is far from clear. Even more so than most
anonymous tips, statements made on 4chan have no indicia of reliability. Cf. Florida v.
J.L., 529 U.S. 266, 270 (2000) (holding that anonymous tips require some indicia of
reliability in order to form the basis for probable cause or reasonable suspicion). None
No. 10-6450 United States v. Kernell Page 8
of the posts to which the government points are unambiguous claims that Kernell had
been reported. But even if the posts were unambiguous claims that Kernell had been
reported, a key component of the culture of 4chan consists of anonymous posters making
claims that are not in fact true. Much of the conversation on the threads started by
Kernell revolved around whether Kernell actually hacked the Palin email account, or
whether he was “trolling”2 the 4chan community. Similarly, Kernell could have
interpreted the references to contacting the FBI as trolling posts. At best, the posts
increased the chance that the FBI would investigate Kernell. Once again, this speaks
more to the contemplation of an investigation than to actual knowledge.
Absent the claim that Kernell had actual knowledge of the investigation, the
government offers no reason why Kernell does not have standing to challenge the
constitutionality of the “in contemplation” language of § 1519 that was applied to him.
Thus, Kernell has standing to challenge the constitutionality of § 1519 as it was applied
to him.
B. Kernell’s Constitutional Challenge to § 1519
Kernell raises two related challenges to the constitutionality of 18 U.S.C. § 1519.
First, Kernell argues that the structure of the statute creates an ambiguity as to the
application of mens rea to the various elements of the statute. Second, Kernell argues
that the statute’s requirement that the defendant act “in contemplation of an
investigation” is vague as to the required state of mind.
Section 1519 states:
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.
2
“Trolling” refers to the practice, common on 4chan and other internet sites, of deliberately
posting incorrect or inflammatory content for the purpose of elicting a reaction from other users.
No. 10-6450 United States v. Kernell Page 9
Kernell argues that the statute prohibits two types of conduct: (1) knowingly destroying
documents with the intent to impede an investigation, and (2) knowingly destroying
documents in relation to or in contemplation of an investigation. For this reason, Kernell
argues that § 1519 is a general intent statute as it was applied to him, and the lack of
specific intent to obstruct for those convicted of destroying documents in contemplation
of an investigation renders the statute vague.
Grammatically, Kernell has an argument. The phrase starting “with the intent
to impede” requires a direct object, and there is no natural reading of the statute that
makes a contemplated investigation that object, particularly given the presence of the
word “or” rather than “either” before the phrase “in relation to or in contemplation of.”
However, the Supreme Court has frequently refused to adopt “the most grammatical
reading of the statute” when a lack of intent would risk punishing otherwise innocent
conduct. United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). When faced
with two readings of the statute, one of which is constitutional and the other which is
not, Congress is presumed to have enacted a constitutional statute. See X-Citement, 513
U.S. at 74. Additionally,Congressional statements about § 1519 strongly support the
argument that Congress intended a specific intent to apply throughout § 1519. “[T]he
intent required is the intent to obstruct, not some level of knowledge.” 148 CONG. REC.
S7418, S7419 (daily ed. July 26, 2002) (statement of Senator Leahy).
The Eighth Circuit, in United States v. Yielding, 657 F.3d 688 (8th Cir. 2011),
recently parsed the language § 1519 in a manner we find instructive. Yielding identifies
three scenarios under which § 1519 would apply: “(1) when a defendant acts directly
with respect to “the investigation or proper administration of any matter,” that is, a
pending matter, (2) when a defendant acts “in . . . contemplation of any such matter,”
and (3) when a defendant acts “in relation to . . . any such matter.” Yielding, 657 F.3d
at 711. Under this reading, “[t]he statute . . . does not allow a defendant to escape
liability for shredding documents with intent to obstruct a foreseeable investigation of
a matter within the jurisdiction of a federal agency just because the investigation has not
yet commenced.” Id. However, “the statute does not impose liability for ‘knowingly . . .
No. 10-6450 United States v. Kernell Page 10
destroy[ing] . . . any . . . document . . . in . . . contemplation of any [federal] matter,’
without an intent to impede, obstruct, or influence a matter.” Id. (quoting the statute)
(alterations and emphasis in the original). By applying this requirement to each of the
three scenarios, the construction creates the needed specific intent and avoids Kernell’s
concern that “the statute would forbid innocent conduct such as routine destruction of
documents that a person consciously and in good faith determines are irrelevant to a
foreseeable federal matter.” Id. The district court used Yielding’s interpretation of the
statute when it instructed the jury.3 We agree with the district court and Yielding in their
interpretation of § 1519.
Contrary to Kernell’s assertions, other case law interpreting § 1519 is in harmony
with the government’s construction. Kernell cites to United States v. Russell as support
for his “knowingly-only” interpretation. 639 F. Supp. 2d 226, 239-40 (D. Conn. 2007),
rejected on other grounds by United States v. Gray, 642 F.3d 371, 378 n.5 (2d Cir.
2011). The portion of Russell cited by Kernell does state that “[t]he scienter requirement
for § 1519 is that a defendant act knowingly,” id. at 240, but a prior portion of the
opinion makes clear that the government is required to prove that the defendant intended
to interfere with a government investigation. See Id. at 237 (“[W]hether Russell had the
intent to obstruct justice is another factual question whose resolution must await trial,
at which time the government will have to produce evidence of conduct that, in [the
defendant’s] mind, had the natural and probable effect of obstructing or interfering with
[an official proceeding or a FBI investigation].” (internal quotations and citations
omitted) (alteration in original)). Other courts to have considered the question have
applied a similar framework and required an intent to obstruct, even when the false
statement was made before the federal investigation commenced. See United States v.
Hunt, 526 F.3d 739, 743 (11th Cir. 2008) (“This statute rather plainly criminalizes the
conduct of an individual who (1) knowingly (2) makes a false entry in a record or
3
“For you to find the defendant guilty of Count 4, you must find that the government has proved
each and every one of the following elements beyond a reasonable doubt:
First, the defendant knowingly altered, destroyed or concealed a record or document; and. [sic]
Second, the defendant acted with the intent to impede, obstruct or influence the investigation of a matter
by or within the jurisdiction of the Federal Bureau of Investigation which he either knew of or
contemplated.”
No. 10-6450 United States v. Kernell Page 11
document (3) with intent to impede or influence a federal investigation.”); United States
v. Jho, 465 F. Supp. 2d 618, 637 n.9 (E.D. Tex. 2006), rev’d on other grounds, 534 F.3d
398 (5th Cir. 2008) (“Section 1519 contains a mens rea requirement in that it requires
that the defendant act knowingly with the intent to obstruct justice.”) (emphasis in
original)).
Kernell argues that even under the government’s construction, the statute is
unconstitutional because of ambiguities regarding whether it contains requirements
found in other obstruction-of-justice provisions, such as a nexus between the
investigation and the alleged conduct or the requirement for the alleged conduct to be
done with “corrupt intentions” or be “inherently malign.” See generally United States
v. Aguilar, 515 U.S. 593 (1995) (nexus requirement); Arthur Andersen LLP v. United
States, 544 U.S. 696 (2005) (“inherently malign” requirement). Kernell asserts that the
fact that some courts have applied requirements from other obstruction of justice statutes
to § 1519 while others do not proves that the statute is vague. Even if true, the fact that
different courts have interpreted a statute differently does not make the statute vague—if
that were true, a circuit split over the interpretation of a criminal statute would by
definition render the statute unconstitutional.
It should also be noted that the differences between the courts’ approaches to
§ 1519 are not as great as Kernell implies. To the extent that cases interpreting § 1519
have discussed Arthur Andersen and corrupt intent, they have found that § 1519 meets
that requirement, or the “intent to obstruct” language subsumes the requirement. See
United States v. Moyer, 726 F. Supp. 2d 498, 506 (M.D. Pa. 2010) (“[The language of
the statute] imposes upon the § 1519 defendant the same sinister mentality which
‘corruptly’ requires of a § 1512(b)(2) defendant.”); see also United States v. Stevens, 771
F. Supp. 2d 556, 561 (D. Md. 2011) (quoting Moyer). Whether or not courts have
explicitly discussed Arthur Andersen, no decision interpreting § 1519 implies that Arthur
Andersen imposes an additional requirement beyond that found in the text of § 1519.
Moreover, circuit courts interpreting § 1519 have not applied Arthur Andersen. Thus,
there is no real ambiguity or dispute over whether Arthur Andersen applies to § 1519.
No. 10-6450 United States v. Kernell Page 12
Two district courts have applied the nexus requirement to § 1519. See Moyer,
726 F. Supp. 2d at 505-06; Russell, 639 F. Supp. 2d at 234. We are neither bound by
their interpretation, nor do we agree with it. As the government points out, the nexus
requirement is derived from the langauge of other obstruction-of-justice statutes,
wording that is not found in § 1519. Congress is not required to use the same structure
for all obstruction-of-justice statutes. In addition, the legislative history of § 1519 shows
that Congress designed the provision to be more expansive than earlier obstruction of
justice statutes by dispensing with some of these collateral requirements. The Senate
report that accompanied the Sarbanes-Oxley Act specifically disclaimed a nexus
requirement for § 1519. See Gray, 642 F.3d at 377 (quoting S.Rep. No. 107-146 at 14-
15 (2002), 2002 WL 863249, at *12-13) (“Other provisions, such as 18 U.S.C. § 1503,
have been narrowly interpreted by courts, including the Supreme Court in United States
v. Aguilar. . . to apply only to situations where the obstruction of justice can be closely
tied to a pending judicial proceeding. . . . [Section 1519] is specifically meant not to
include any technical [nexus] requirement . . . .”) As the Eighth Circuit discussed in
Yielding, importing requirements from other obstruction of justice cases over to § 1519
is directly contrary to the legislative intent, as well as having no support in the text itself.
Yielding, 657 F.3d at 712-13; see also Gray, 642 F.3d at 378 (“In view of the statute’s
plain language, which is fully consistent with the legislative history, we decline to read
any such nexus requirement into the text of § 1519.”)
Kernell also argues that the “in contemplation of an investigation” element is
vague, because it does not specify what a defendant must know or believe about an
investigation in order to trigger potential liability under § 1519. Courts considering the
question have consistently held that the belief that a federal investigation directed at the
defendant’s conduct might begin at some point in the future satisfies the “in
contemplation” prong. We articulated this principle clearly in United States v. Lanham,
617 F.3d 873 (6th Cir. 2010). In Lanham, corrections officers intentionally placed an
18-year-old who had been arrested for speeding and eluding police in the general
population cell as a punishment for attempting to assault a friend of the officers.
Lanham, 617 F.3d at 879-80. When the young man was later sexually assaulted by
No. 10-6450 United States v. Kernell Page 13
inmates, the officers signed a statement that he was placed in general population because
of the need to decontaminate available “detox” cells. Id. at 881. After being convicted
under § 1519, the officers argued on appeal that they did not make their false statement
“in contemplation” of an investigation because no investigation had begun at the time.
Id. at 887. The Court affirmed the conviction, stating that “the falsification was
presumably done in contemplation of an investigation that might occur.” Id.
While this interpretation makes “in contemplation” under § 1519 very broad, it
is consistent with the legislative history and other cases to consider the question. See
Jho, 465 F. Supp. 2d at 636 (“[I]mposing a requirement that the matter develop into a
formal investigation ignores the plain meaning of the statute and the legislative
history.”); see also United States v. Ionia Mgmt., S.A., 526 F. Supp. 2d 319, 329 (D.
Conn. 2007) (“In comparison to other obstruction statutes, § 1519 by its terms does not
require the defendant to be aware of a federal proceeding, or even that a proceeding be
pending.”).
Moreover, even if this element is potentially vague as it relates to hypothetical
defendants, it is not vague as it relates to Kernell. As with the officers in Lanham,
Kernell had a recognition (memorialized in his “Hello” post) that his conduct might
result in a Federal investigation:
“THIS internet was serious business, yes I was behind a proxy, only one,
if this sh** ever got to the FBI I was f*****, I panicked, i still wanted
the stuff out there but I didn t know how to rapidsh** all that stuff, so I
posted that pass on /b/, and then promptly deleted everything, and
unplugged my internet and just sat there in a comatose state.”
(edited from the original). Thus there is no doubt from this post that Kernell
“contemplat[ed]” that an investigation would occur when he took his action, since he
specifically referenced the possibility of an FBI investigation in his post. As such, to the
extent there are any ambiguities in the “contemplation” prong, Kernell may not raise or
rely on them. See Humanitarian Law Project, 130 S.Ct. at 2720.
No. 10-6450 United States v. Kernell Page 14
Finally, Kernell argues that § 1519 should be limited only to those entities that
have an pre-existing duty under the law to retain records or documents. There is nothing
in the text of the statute that would suggest such a requirement, and we decline to impose
such a limitation without direction from Congress. In addition, courts have imposed
liability under § 1519 on defendants who clearly had no legal obligation to create or
maintain the records at issue. See United States v. Wortman, 488 F.3d 752, 753 (7th Cir.
2007) (holding that a woman who destroyed a CD containing child pornography
belonging to her boyfriend was subject to § 1519); Russell, 639 F. Supp. 2d at 238-39
(holding that an attorney who deleted child pornography he found on a church computer
is subject to § 1519).
Section 1519 clearly sets out the elements that the government must prove for a
conviction under the statute. All courts looking at the question have rejected the
constitutional challenge, and any ambiguities that might exist apply to a hypothetical
defendant, not to Kernell and his specific conduct. For this reason, we reject Kernell’s
challenge to the constitutionality of 18 U.S.C. § 1519.
C. Kernell’s Sufficiency of the Evidence Challenge
Kernell also contests the sufficiency of the evidence supporting his conviction.
For sufficiency of the evidence challenges, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “This is a very
heavy burden” for the convicted defendant to meet. United States v. Jones, 641 F.3d
706, 710 (6th Cir. 2011) (internal quotation marks and citation omitted).
As discussed above, for the government to support a conviction under § 1519,
as it relates to Kernell, it must show (1) that he knowingly deleted or altered the
information on his computer (2) with the intent to impede, obstruct or influence an
investigation that (3) he contemplated at the time of the deletion or alteration. The
government has put forward sufficient evidence on each of these points.
No. 10-6450 United States v. Kernell Page 15
Kernell does not dispute the first element. He does not contend that deletion of
files or the running of the hard drive defragmenter was done accidentally, instead
conceding that he initiated the actions on his computer which removed the information.
Kernell does dispute the second element, and contends that there is insufficient evidence
to support the conclusion that he deleted the information with obstructive intent. In
support of this claim, Kernell essentially argues that nothing that is written on the
internet can be taken seriously, so the entire content of the postings Kernell made should
be discounted. Kernell is correct that we should exercise caution when interpreting
internet postings literally, given that they are often “jargon-heavy,” containing obscure
references and inside jokes. However, in this case, Kernell’s “Hello” posting on 4chan
does not require in-depth knowledge of internet culture to interpret. Kernell expressly
states that he deleted the information on his computer out of a fear that the FBI would
find it, plainly showing that he took his actions with the intent to hinder an investigation.
Even with proper skepticism directed toward claims made on the internet, a self-
incriminating statement such as Kernell’s provides sufficient evidence for a reasonable
jury to conclude that he acted with obstructive intent.
Finally, Kernell challenges the sufficiency of the evidence establishing that he
contemplated a government investigation when he removed the evidence from his
computer. Again, the “Hello” post makes clear that he believed a federal investigation
was at least the possible outcome of his actions. That is sufficient to sustain the
government’s burden under § 1519. Lanham, 617 F.3d at 887. Therefore, the
government put forward sufficient evidence to support a conviction under § 1519, and
Kernell’s conviction is upheld.
III.
For the foregoing reasons, we AFFIRM the conviction and sentence.