Is it Obstruction of Justice to Delete Your Cellphone Memory?
Former Utah Attorney General John Swallow faces 11 felony charges and two misdemeanors for soliciting bribes, accepting gifts, and tampering with evidence.1 But Swallow also could be charged with obstruction of justice.
The Special Investigation Committee assigned to the Swallow case alleges that he purposely deleted electronic documents and falsified documents in an attempt to hide evidence.2
If you are under investigation for a crime, prosecutors could search your cellphone for evidence. Smartphones are essentially small handheld computers that fit in the palm of your hand. In fact, in the case of United States v. Neil Scott Kramer, the U.S. Court of Appeals determined that a smartphone is a computer.3
Law enforcement and prosecutors understand that in this day and age, cellphones are filled with personal information. In fact, a smartphone may even have more personal data than a computer. Therefore, the information on your cellphone will play a crucial role in your case.
That is why deleting your cellphone memory during an investigation could be considered obstruction of justice. Let’s take a look at California obstruction of justice laws.
Obstruction of Justice (California Penal Code Section 132 & 18 U.S. Code Section 1505)
Under California Penal Code Section 132, you can be charged with obstruction of justice if you intentionally:
- Avoid or prevent compliance with any civil or criminal investigation;
- Misrepresent any documents or material;
- Give false answers on written interrogations or oral testimonies; or
- Remove, conceal or destroy any documents or other material.4
“Documentary material” could include any handwritten material or electronic communication such as text messages and emails. Attempting to destroy this information or conceal it by deleting it from your phone’s memory could be considered obstruction of justice.
If you are accused of obstructing justice in relation to a federal criminal case, you may be punished under 18 U.S. Code Section 1505. The elements of this crime under federal law are very similar to those under California law.
Penalties for Obstructing Justice by Deleting Your Phone’s Memory
Under California law, obstruction of justice is a misdemeanor.
The penalties for a misdemeanor conviction of obstruction of justice include up to six months in county jail and up to $1,000 in fines.5
You face more serious consequences if you are convicted of obstructing justice while under investigation for a federal crime. Under 18 U.S. Code Section 1505, you could be sentenced to up to five years in prison if you are charged with obstructing justice during a federal investigation.
If it occurs during a federal drug trafficking case, you face up to 20 years in prison.6
Call the Criminal Defense Attorneys at Wallin & Klarich Today
If you are accused of obstructing justice, a conviction is far from guaranteed. The law is still not entirely clear on issues of technology and cellphones. Therefore, it is absolutely necessary that you have a skilled attorney bring these to the attention of the criminal justice system. Our attorneys at Wallin & Klarich have been successfully defending our clients accused of this crime for over 40 years.
With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, Wallin & Klarich is available to provide round-the-clock support no matter where you work or live.
Call us at (877) 4-NO-JAIL or (877) 466-5245 to discuss your case. We will be there when you call.
1. [http://www.sltrib.com/sltrib/news/58185969-78/swallow-shurtleff-utah-general.html.csp]↩
2. [http://utahpoliticalcapitol.com/2013/12/20/investigation-reports-swallow-deliberately-deleted-evidence-obstructed-justice/#]↩
3. [http://nydailyrecord.com/blog/2012/05/30/ediscovery-update-deleted-text-messages-and-ediscovery/]↩
4. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=132-141]↩
5. [Id.]↩
6. [https://www.ohiobar.org/forpublic/resources/lawyoucanuse/pages/lawyoucanuse-132.aspx]↩
