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.]