Jan 30 (Reuters) - A former college
student convicted for hacking into Sarah Palin's e-mail account
during the 2008 presidential election lost a bid to overturn his
felony conviction on Monday.
The former University of Tennessee student, David Kernell,
argued that he was not aware of any pending investigation when
he deleted information from his computer related to the hacking
of Palin's account. But the U.S. Court of Appeals for the 6th
Circuit found that Kernell's awareness of a possible future FBI
investigation was enough to uphold a conviction on obstruction
of justice.
Kernell guessed his way into Palin's Yahoo! account in
September 2008, stumbling upon the correct answer to the
password security question of where Palin met her spouse. After
snooping through Palin's email and taking several screenshots,
he changed the account's password and posted it on an Internet
message board where he boasted about the breach.
The incident gave rise to one of the most high-profile jury
trials in the Eastern District of Tennessee's history, with
testimony from Palin and her reality TV star daughter, Bristol
Palin. While Kernell claimed the hacking was a college prank,
the prosecution painted the breach as a politically-motivated
attempt to derail the campaign of Palin and her presidential
running mate John McCain.
A jury convicted Kernell of a misdemeanor for accessing a
protected computer and a felony for destroying records in
anticipation of a government investigation. The trial judge
sentenced Kernell to a prison term of one year and a day.
Kernell appealed the felony conviction, arguing that it was
unconstitutional to prosecute someone for destroying records
before any official investigation has been launched. He
continued the appeal even after he was releasead in November,
after serving less than 11 months.
While the 6th Circuit on Monday recognized that the law was
both vague and broad, it concluded the law applied directly to
Kernell's conduct. In one message-board post, Kernell expressed
fears of an FBI investigation. Other evidence showed that he
deleted his Internet browsing history and cleaned his hard drive
to erase any trails of the hacking. That was sufficient evidence
of obstructive intent, the court ruled.
Kernell's lawyer Wade Davies said the opinion confirms that
Kernell had no knowledge of an official investigation at the
time of the alleged obstruction. He plans to seek review by the
full court of appeals or the Supreme Court on the
constitutionality of being convicted for obstructing justice
without knowledge of a pending investigation, he said.
The Department of Justice did not immediately respond to a
request for comment.
The case is USA v. Kernell, U.S. Court of Appeals for the
6th Circuit, No. 10-6450.
For the prosecution: Mark Krotoski of the Department of
Justice.
For Kernell: Wade Davies of Ritchie, Dillard, Davies &
Johnson.
(Reporting By Terry Baynes)
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