Targeting Child Porn With Sarbanes-Oxley; or, How to Cut Your Sentence in Half With a Hammer

Over at The Volokh Conspiracy, Orin Kerr notes that the U.S. Court of Appeals for the 4th Circuit recently heard a case in which prosecutors used the Sarbanes-Oxley Act, the 2002 law aimed at financial fraud, against a man suspected of possessing child pornography. After linking Brian C. Hicks' email address to correspondence with a suspected child porn website, U.S. Postal Inspector Lisa Holman dropped by his home. Hicks was not there, so Holman left a business card with his father that identified her as the "Child Pornography Team Leader." Meeting with Holman the next day, Hicks admitted seeing child pornography online but denied ordering it or copying it onto his computer. When Holman asked to verify his account by examining his computer, Hicks said that would be impossible: Since he "didn't want to take any chances," he had destroyed the hard drive, running a magnet over it, smashing it with a hammer, and throwing the pieces out the window of a moving car. Since they had no physical evidence that Hicks had received child pornography, federal prosecutors charged him with violating a section of the Sarbanes-Oxley Act that says a person is guilty of a felony, punishable by up to 20 years in prison, if he "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." The 4th Circuit rejected Hicks' argument that the prosecution was at odds with the aims of the law, saying "the statute is plain and unambiguous." The court was similarly unimpressed by his due process and Fourth Amendment arguments.

So did Hicks gain anything by taking a hammer to his hard drive? I think he did, although I can't tell for sure from the information in the 4th Circuit's ruling or the online discussion of the case because they do not say what his sentence was. Under federal law, receiving child pornography carries a mandatory minimum sentence of five years. (Even if Hicks had been telling the truth when he denied deliberately copying any images onto his computer, he still could have been convicted of receiving child pornography, since Web browsers do that automatically to facilitate page reloading.) By contrast, there is no mandatory minimum for the Sarbanes-Oxley obstruction charge. The 4th Circuit says Hicks' penalty was based on the federal sentencing guidelines for an accessory after the fact in a child porn case; the premise, in other words, was that Hicks was an accessory to his own (unproven) crime. For purposes of sentencing, where a "preponderance of the evidence" standard applies, the judge found that "Hicks possessed  images of prepubescent minors or those under the age of twelve, that a computer was used in the transmission or receipt of the images, and that he possessed at least 150 but fewer than 300 videos." Based on these findings, assuming I am reading the sentencing guidelines (PDF) correctly, Hicks' offense level should have been 19. If he had no prior criminal record, that means a recommended sentence (PDF) of 30 to 37 months. By contrast, if he had been convicted of receiving child pornography with the same factors, his offense level would have been 25, which corresponds to a guideline range of 57 to 71 months, with at least 60 required by the statutory minimum. So unless I'm missing something, that hammer cut Hicks' sentence in half.

For more on child porn sentences, see my July Reason article "Perverted Justice."

[Thanks to Paul for the tip.]

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  • Cliché Bandit||

    I will refrain from commenting on the unequal and capricious use of hat tips...Paul...harumph

  • Hugh Akston||

    The joke is on Paul though. Jacob linked to his blog so we can all see how laughably out of date it is.

  • Mister DNA||

    He stopped updating a month before Obama was elected.

    RACIST!!!

  • Paul||

    Wait 'til you find out how many readers I have had. You ain't felt laughing that hard.

  • Ted S.||

    More than my ultra-low-traffic movie blog?

  • TRTB||

    I wonder how much further he could have cut his sentence if he'd also had some duct tape for his mouth.

  • rsi||

    Really. Why did he talk too those guys?

  • ||

    probably would have reduced his sentence by, approximately, 100%

    "Business card on my door? I never saw any business card on my door. Sure, once you get a warrant, you can search my brand new computer."

  • Old Mexican||

    The 4th Circuit rejected Hicks' argument that the prosecution was at odds with the aims of the law, saying "the statute is plain and unambiguous." The court was similarly unimpressed by his due process and Fourth Amendment arguments[.]


    Never mind that the law was written and approved specifically to target supposed corporate malfeasance. His 4th Amendment arguments were sound as well, but it is not unlikely for appeal courts to side with the State and against individual's rights as a matter of routine, as they would never bite the hand that feeds it.

  • ||

    So much for an independent, justice-bound judiciary!

  • ||

    unitended consequences with legislation

    a libertarian meme worth repeating

    if they can use RICO against abortion protesters they can use sarb-ox against the pr0n. duh

  • T||

    "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."

    Somebody tell me we don't live in a police state. I need a bitter laugh on a Friday evening.

  • ||

    We don't live in a police state.

    We do, but you needed a laugh, so I lied.

  • goneGalt||

    We do, but you needed a laugh, so I lied.

    Ooooh... I hope T is not a federal official!

  • nicole||

    I know. So, does the quoted text mean that anyone could be prosecuted under Sarbanes-Oxley for any crime regarding which they deleted their own computer files? Or only for any federal crime regarding which they deleted their own computer files? (I.e., does "any dept or agency of the US" include depts and agencies of states and municipalities within the US, or only the US itself?)

    If the statutory language is that plain and not confined to the crimes Sarbanes-Oxley actually targets, this is an excellent example of what happens when people don't read the laws they're passing closely enough (or care what they say).

    One more question: why does something like this not fall foul of the Fifth Amendment right not to self-incriminate? It seems like that should entail the right to not have to preserve evidence against yourself.

  • ||

    IANAL but this:
    "proper administration of any matter within the jurisdiction of any department or agency of the United States" doesn't say diddly about "crime".
    It says administration. That means that if the DHS wants to monitor your Internet usage(that's administration of a matter), you'd better not flush your browser's cache (that's altering records) and tell them you did it(that's intentional).

  • Paul||

    I know. So, does the quoted text mean that anyone could be prosecuted under Sarbanes-Oxley for any crime regarding which they deleted their own computer files?

    Yes. At least that's my reading of the case.

    As I stated earlier in my earlier threadjack (Thanks for the HT Jacob] I believe that Mr. Hicks used "magic words" when talking to investigators which led them to be able to use the (now broadly interpreted) SarbOx rules.

    Specifically, when he spoke to investigators, it seems that Hicks indicated that he knew an investigation was ongoing, so destroyed his hard drive as a precautionary measure.

    Further interpreting from that, the lesson learned is:

    1. Don't talk to the cops.

    2. If you violate #1, don't indicate that you destroyed the hard drive as a result of the presence of the cops, or their questions.

    3. It's better to ask for forgiveness than to ask for permission. Meaning, destroy your hard drive, it's probably the best bet no matter what.

  • nicole||

    kwix, you make a good point. And thanks, Paul. Anyone have any insight on whether this only goes for federal investigations/administration?

  • Paul||

    If I understand your question, Sarbox is a Federal law, so it should only apply to federal investigations.

  • ||

    Like whether or not baseball players lie to congress about taking legal drugs.

  • jasno||

    Great... so if I'm at a national park in an area where drinking is prohibited, I crack a cold one, then see a ranger, if I pour out my beer I can get 20 years?

  • ||

    Technically it looks like popping a couple of breath mints after the beer might run afoul of the law in that case too.

  • ||

    peanut butter, bro. peanut butter

  • jasno||

    Haha.. I find that funny coming from a WA cop.. when I was 12 my first encounter with law enforcement was some Auburn cops who explained to me how to use a syringe to squirt vodka into an orange so you could get drunk without anyone knowing it.

  • ||

    and syringes are over the counter in WA!

    otoh, don't eat the orange to evade detection if an officer with the "vodka tainted orange enforcement squad" leaves a business card at your house, or you risk a Sarbonnes Oxley (sp?) prosecution

  • orange||

    That's rape.

  • ||

    Once again we see the reason why you don't talk to the cops. You don't talk to the Feds. You don't even say "Good Morning" to the freakin mailman.

  • ||

    ah, this tired stupid meme again...

    selection bias... it's what's for dinner

  • robc||

    This has nothing whatsoever to do with selection bias.

    I wouldnt talk to a good cop either. The cop in the thread yesterday that did everything right? Not saying a word to him.

  • ||

    So you wouldn't use any thing I say against me in a court of law? You wouldn't recommend charges if I lie to you? (you claim the right to lie to me, so I must have the same right)

  • ||

    I also forgot. Fuck you Dumpy, with a rusty screwdriver.

  • MrDamage||

    Selection bias... so we only hear about the times when talking to cops has a bad result. By contrast, what _good_ result can come from talking to a police officer? Regardless of how likely or unlikely a bad outcome from talking to a police officer might be, you can't gain anything (indeed, anything you say can NOT be used in your defense in a court of law... hearsay) and stand to lose everything. It's a bad bet. It's worse than the slot machines in Vegas.

  • ||

    This guy was pretty thorough, though he's got nothing on Warty who has his hard drive encased in a layer of C4 with a remote detonator located in his anus. You can never be too careful, right?

  • Warty||

    You can't be too careful if there's a chance you might go to 4chan, dude.

  • ||

    Warty just admitted to frequenting 4chan! You all saw him say it!

  • Paul||

    Why did Warty destroy his hard drive?

    Cue Jeopardy music.

  • Hugh Akston||

    Somebody knows the answer.

  • Warty||

    This reminds me of the scene in Cryptonomicon where Randy is racing to erase the data before the feds raid the hosting company's offices. I should put electromagnets in my doorframes.

  • Hugh Akston||

    That could be hazardous to the people with genital piercings who enter your home.

    A vial of acetone inside the case that's rigged to spill if anyone tries to open it is better.

  • CaptainSmartass||

    If they're so cheap they're using steel in their piercings instead of silver, gold, or platinum, then they're getting what they deserve.

  • ||

    Hicks' offense level should have been 19. If he had no prior criminal record, that means a recommended sentence (PDF) of 30 to 37 months. By contrast, if he had been convicted of receiving child pornography with the same factors, his offense level would have been 25, which corresponds to a guideline range of 57 to 71 months, with at least 60 required by the statutory minimum.

    So, he's got to roll a 20 to make the saving throw?

  • alan||

    Have you noticed how horribly written the new manuals are? Not diction, just too fay for words. Written like the authors are trying to impress a lady in Jane Austen novel.

  • alan||

    If that lady had majored in Wymen's Studies at Wellesley.

  • ||

    "Have you noticed how horribly written the new manuals are?"

    No, can't say that I have.

  • alan||

    Just browsing. Not like I have the urge to throw dice or anything.

  • ||

    I've spent quite a bit of time with the Federal Sentencing Guidelines. I am convinced that whoever authored it was a Dungeon Master at some point in their lives.

    +2 for having a gun, -3 for acceptance of responsibility. -4 for having a minor role. You are in category 4 for criminal history, so means a possible range of xx-xx months.

  • Colonel_Angus||

    Postal inspectors- fuck them hard with shards of broken hard drives. They are pretty much the DEA-ATF arm of the fucking post office and a great portion of the time they are not even working on crimes that involve mail whatsoever. I know one of them, he is a scuzzy statist sick piece of shit.

  • ||

    Good thing we made that a private, non-law enforcing business years ago.

    What's so funny?

  • ||

    Postal inspectors-fuck them hard with shards of broken hard drives....I know one of them, he is a scuzzy statist sick piece of shit.

    Sheesh, the guy refuses your sexual advances and you get all, "Fuck him with a broken hard drive!" Dude, rejection is a part of dating. Relax. Your time will come.

  • ||

    NEWMAN!

  • SIV||

    Child Pornography Team Leader

    I see some novelty/practical joke appeal in spoofing this title.

  • Paul||

    It's sort of on the same lines as "Substance Abuse Advocate".

  • ||

  • Hugh Akston||

    Is that the last one? How long did that end up taking you?

  • alan||

    What's the deal? I thought anonpussy or Rather was spoofing Heller, so I pretty much ignored this new theme.

  • BakedPenguin||

    He was posting 100 Pixies songs.

  • alan||

    What on Earth for?

  • Hugh Akston||

    Because They Might Be Giants don't have that many songs on the YouTubes?

  • alan||

    Dinosaur Traiiinn! That is them, right? Wait, no. I'm thinking Primus.

  • alan||

    If you are spreading the Pixie gospel (not a fan, but the video made by two Israelis chicks was cute, and if its your thing I'm game), why not post your url name link to an html page with these hundred links. These posts are just going to get lost in time like, ah, tears in rain. Everyday you post, at least a few people will check out the link in your name.

  • ||

    Because he's glib and doesn't want to contribute any actual content.

  • SIV||

    Fuck that pussy "college rock".
    These guys don't even know where Amherst, Mass is:

    Crazy Cavan and the Rhythm Rockers: My Little Sister Gotta Motorbike

  • ||

    First rule of federal investigators

    1. Plead ignorance above all. "I don't know where my hard drive is"

    Second rule of federal investigators

    2. Plead poor memory. "I don't recall seeing any child pornography"

    Third rule of federal investigators

    3. After completing rules one and two, STFU.

  • alan||

    1.5 Uhm, she looked 18 to me.

  • Pendulum||

    No, no, no.

    Rule 3 is the only one you need.

  • Old 22||

    Just keep it simple:
    "I will not speak to you without a lawyer present. Am I free to go?"

  • ||

    I'm happy we are using this Sarbaned-Oxley deal to fight that whole financial crime thing.

  • Pope Jimbo||


    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.

    Shouldn't the FEC be very busy locking up 435 lawbreakers right now?

  • Mark Bennett||

    His sentence, per ECF, was 37 months. Two years' supervised release.

    (No sex-offender registration? Priceless.)

  • MrDamage||

    If Brian C. Hicks avoided sex offender registration, he did indeed bag himself a bargain. Anyone know for sure of he would have been required to register upon release?

  • ||

    You would think anyone who deals with that kind of stuff would utilize full disk encryption. I mean seriously.

    www.net-privacy.us.tc

  • ||

    Seems like that disk is encrypted pretty well now. 128-bit keys can't hold a candle to 32-oz hammers.

  • MrDamage||

  • ||

    Just wire your house/apartment like Brill from Enemy of the State. If the cops come knocking, run to the emergency gun and ammo vest you keep in the closet, grab the detonator, and jump out of the window. Blow the fucker up, and POP goes a SWAT team!

  • ||

    Your anarcho-libertarian violence fantasies are fascinating. Do you have a newsletter or blog that I may ignore?

  • ||

    If you didn't catch it, it was joke. Either you're as colossally retarded as you appear to be, or you're a disingenuous shit looking for an excuse to bitch.

    Additionally, I'm not an anarchist. Either get better at this shit, or do yourself a favor and disappear.

  • Lib'Tarian||

    Res Publica Americana|7.20.11 @ 7:45AM
    I want my "ideological enemies" to die, and rightly so, only when they're bringing their ideology to rule over others
    [i.e., when they represent a government]. Your right to act according to immoral, tyrannical, unjustifiable bullshit [the anarchist's definition of "government"] ends once you swear your oath of office and acquire the power to govern people [i.e., when they go to work for a government. Having done so, they are now RPA's "ideological enemies," and RPA wants them to die].

  • ||

    At least that Big Fan guy stuck to a pretty amusing meme -- you, on the other hand, are just damned awful at this, aren't you? I'm a "libertarian" republican (small "r"), not an anarchist.

  • Number 2||

    Not overbroad? Consider this.

    The USDA decides to survey public opinion on fresh-squeezed orange juice. You receive the survey in the mail, read it, and decide that your views on the subject are none of the government's business, and that the survey itself is a waste of government money. As an act of protest you toss the survey into the trash.

    Congratulations. You have just knowingly destroyed a document or tangible item with the intent to impede the investigation/administration of a matter within the jurisidiction of a government agency. Therefore, you are a criminal. Enjoy your time in prison.

    Nah...no overbreadth issue here.

  • ||

    Why doesn't anyone take us seriously?

  • Phlogistan||

    I saw Schindlers List. Does that make me a Nazi war criminal?

  • ||

    It's one thing to willfully fail to keep or destroy records that the government requires you to maintain for some period, and another thing to destroy miscellaneous paperwork that gets generated during your activites.

    It is one thing to be formally told that you are under investigation and need to produce (or let the authorities search for and seize) particular documents or other evidence -- then destroy those things before the government can get them, but quite another thing to suspect that the cops are on your tail and take your own steps to tidy up after some misdeeds before they have actually confronted you.

    I think the defendant was stupid for telling authorities that he deliberately destroyed anything about which they were curious. But it seems to me that, before S-O could be invoked, the government needed to serve a warrant naming the hard drive. Similarly, in business, they need first to tell a business either that certain documents fall under the category of records that must be retained, or that the business is currently under investigation and NO documents of the categories named in a warrant can be destroyed.

    Otherwise, the gates are thrown open for government fishing expeditions, of the type that the Fourth Amendment was intended to prevent.

  • Dank||

    Mental note, keep formatted hard drive with OS around if I ever need to swap it out.

  • coniefox||

    What a disgusting active!

  • ||

    If I delete spam containing child porn, could I go to jail? I'm a victim of ID theft and I routinely destroy ALL information before throwing it away. I destroy all CDs, DVDs and hard drives no matter what I think is on them. Given this, a government agent could easily put me in jail by going through my trash. I could think of hundreds of scenarios where this terrible law could be used against honest law abiding citizens and don't you dare think for a moment that it couldn't happen. This ruling should be overturned and this terrible law should be abolished even if it means this kiddy porn freak goes free.

  • ||

    Check with your SOX compliance officer. You need a rational-basis document retention policy that is applied across the board.

    What? You don't have a SOX compliance officer?

  • ||

    http://www.zerohedge.com/contr.....y-us-bank-

    Whats funny is that when you have an actual example of financial fraud, taking place in front of justices that comment that the assertions made by a bank are contradictory and unbelievable.......(crickets chirp) no prosecutions.
    The law is just kabuki - they go after who they want to and they ignore who they want - nobody oversees prosecutors.

  • friend||

    the boy recieved emails with pix..did not order..he was a sweet kid and has killed himself.HAPPY?

  • wrong||

    funny how it fails to mention he was a minor..the same age as the images
    he "viewed".

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