The Champion

May 2011 , Page 22 

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‘Honey Laundering,’ A Toilet Flush, and a Governor’s Yahoo Account: The New Age of Anticipatory Obstruction of Justice

By T. Markus Funk

Late one night last year, a defense attorney’s client decided to erase a document file folder and certain emails from his personal laptop computer. As it turns out, a month earlier the client had gotten himself involved in a small-time mortgage fraud scheme with two college friends. With some time to reflect on what he had done, the client began to experience some pangs of concern that his wife — or even worse, federal law enforcement — might one day gain access to the documents and emails and figure out what he had been doing.

The client’s fear about perhaps someday being the subject of law enforcement attention was very real. That said, there is no evidence that the client knew of an ongoing — or even planned — investigation. Instead, his otherwise unremarkable actions were little more than an anticipatory “precaution.”

The question now confronting the defense attorney is whether the client’s actions violated the law.

Pursuant to the under-used, but particularly power-packed, 18 U.S.C.

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