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Court Upholds Sarbanes-Oxley Conviction of Child Porn Defendant

By Robyn Hagan Cain on July 26, 2011 | Last updated on March 21, 2019

The news has been full of child pornography cases this summer. Just a few examples: Earlier this month, there was the California decision that a man who superimposed his teenage daughter's face on pornographic images was protected by the First Amendment because the relevant parts of child pornography must feature a child. In June, there was the story of a forced yearbook recall in Big Bear Lake, California after authorities discovered teenagers getting frisky in the background of a yearbook photo from a school dance.

With such sensationalist fare, we almost overlooked this arguably bland, unpublished Fourth Circuit challenge to a Sarbanes-Oxley conviction, until we realized that the law was being used to prosecute a man suspected of possessing child pornography.

Let's break this down together, shall we?

Brian Hicks was under investigation for the possession of child pornography. After learning that federal agents wanted to speak with him, Hicks destroyed his hard drive, (not exactly the behavior of an innocent man). He was subsequently charged with, and convicted of, destruction, alteration, or falsification of records in a federal investigation, a charge created under the Sarbanes-Oxley Act.

Hicks argued multiple theories on appeal, including violations of his Fourth and Fifth Amendment rights. His most interesting argument, however, was one that the Fourth Circuit glossed over in a footnote: Congress did not intend for an anti-destruction provision of the Sarbanes-Oxley Act to apply to a child pornography prosecution. The court declined to delve into the legislative history of the Sarbanes-Oxley Act because the statute under which Hicks was prosecuted was "plain and unambiguous."

While the statute under which Brian Hicks was prosecuted was plain and unambiguous, so was the full name of the legislative act that created that statute: Public Company Accounting Reform and Investor Protection Act of 2002. The law, better known as the Sarbanes-Oxley Act, was enacted "to protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws made pursuant to the securities laws" in the wake of corporate and accounting scandals at several major U.S. corporations, most notably Enron.

Unpublished opinions are not binding precedent in the Fourth Circuit, but it is noteworthy that the Fourth Circuit chose to apply a law that was obviously written to regulate public companies and protect investors to prosecute an individual for a crime so entirely unrelated to reporting and accounting practices.

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