By Terry Baynes
(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 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 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 it was unconstitutional to prosecute someone for destroying records before any official investigation had been launched. He continued the appeal even after he was released in November, after serving less than 11 months.
While the 6th Circuit on Monday recognized 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 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 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.
(Editing by Daniel Trotta)
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