United States v. Ganier

468 F.3d 920 (6th Cir. 2006)

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Nature of the Case

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Facts

D was CEO, Chairman of the Board, a shareholder, and a founder of Education Networks of America, Inc. ('ENA'). D was linked with certain high-ranking Tennessee officials, and John Stamps, a lobbyist for ENA over allegations of improprieties and favoritism in connection with contracts awarded to ENA by the State of Tennessee and solicitations of Tennessee and Texas officials for additional contracts. A federal grand jury began an investigation in September 2002. In December 2002, after the grand jury issued subpoenas on various companies and state agencies, D allegedly attempted to implement an email 'retention' policy at ENA in which employees' emails would be set to delete after six months, deleted files relevant to the ongoing investigation from his laptop computer, deleted relevant files from his desktop computer, and deleted relevant files from an ENA employee's computer. D was indicted on one count of endeavoring to obstruct justice and three counts of altering, destroying, or concealing documents with intent to impede a federal investigation, and the case proceeded to trial. D filed a summary of expected expert testimony on June 17, 2005, in which he indicated that he would offer evidence that the files in question were transferred to the recycle bin rather than deleted, and that approximately 225 duplicates and similar drafts of the allegedly deleted documents remained on the computers. P's forensic computer specialist, Special Agent Wallace Drueck of the IRS, decided to use forensic software to determine what searches were run on the three computers. The day before the date set for trial, Drueck determined from reports generated by the forensic software that searches had been run in December 2002 using search terms relevant to the grand jury investigation and the allegedly deleted files. The next morning, before the jury was impaneled, D filed a motion to exclude the reports and related testimony, which the district court granted. The government timely appealed, and the district court stayed the trial pending the appeal.