dissenting.
Amanda Wortman made several mistakes, but her biggest, by far, was getting mixed up with Ryan McDonald. It seems reasonable to suspect that most women want to steer clear of guys who possess kiddie porn and harbored “thoughts ... about wanting to do certain things with children.” But not Wortman. And to top it off, McDonald was a wimp. He was “afraid” to break the CD because, as he said, he feared it might “cut my hand.” If having poor judgment in picking a boyfriend was a crime, Wortman would be guilty as charged. But that is not what the government, in what to me looks like a poor exercise of its vast prosecutorial discretion, charged her with. Because I believe the evidence failed, as a matter of law, to demonstrate that Wortman had the requisite intent to violate 18 U.S.C. § 1519 when, in the heat of the moment, she snatched the CD from McDonald and did what he was too afraid to do, I would reverse her conviction.
I think the evidence falls short of establishing that Wortman intended to “willfully destroy evidence or impede a federal investigation” by what she did, and under the circumstances she did it, in this case. McDonald, not Wortman, decided to go to Tuttle’s apartment to look for the CDs and took back roads so he would not be followed. McDonald, not Wortman, knocked on Josh’s door to use Josh’s phone to call Becky to come let him in to Tuttle’s apartment. McDonald, not Wortman, searched through Tuttle’s apartment looking for the CDs. McDonald, not Wortman, attempted to review the contents of the CDs on the computer and DVD in order to figure out which CD he wanted to destroy. McDonald, not Wortman, made the initial attempt to break the CD. It was McDonald, not Wortman, who was attempting to “willfully destroy evidence or impede a federal investigation.” Wortman, as I see the evidence, did not form any intent related to the FBI investigation of McDonald. Her conduct was in the heat of the moment related to McDonald’s specific intent to find and destroy the CD. McDonald used *756Wortman, in much the same way as he might have used a hammer, to accomplish his goal. Wortman’s intent, it seems out of frustration, was to simply do something her wimpy boyfriend was too afraid to do himself because he didn’t want to get hurt.