Tom Brady Is Lucky It Was Only an NFL Investigation

August 5, 2015

By: Sara Kropf

shredded evidenceDeflategate is a riveting story. In this corner: a star quarterback who may have cheated in a playoff game. In the other corner: a despised NFL commissioner flexing his disciplinary muscle by upholding the QB’s four-game suspension.

What’s turned out to be the most interesting part of the story is not whether the footballs were deliberately deflated to win the game, but whether Tom Brady improperly destroyed key evidence during the NFL’s investigation.

From what I’ve read, Mr. Brady is lucky that he was only being investigated by the NFL and not the FBI. He apparently ordered that his cellphone be destroyed the very same day he was scheduled to meet with the NFL’s outside law firm conducting the internal investigation. He then refused to turn over texts and emails on the phone to the investigators as well.

If he’d been under federal criminal investigation, he’d be looking at an obstruction of justice charge.

What Happened to the Cellphone?

According to the report of the internal investigation:

[A]lthough Tom Brady appeared for a requested interview and answered questions voluntarily, he declined to make available any documents or electronic information (including text messages and emails) that we requested, even though those requests were limited to the subject matter of our investigation (such as messages concerning the preparation of game balls, air pressure of balls, inflation of balls or deflation of balls) and we offered to allow Brady’s counsel to screen and control the production so that it would be limited strictly to responsive materials and would not involve our taking possession of Brady’s telephone or other electronic devices. Our inability to review contemporaneous communications and other documents in Brady’s possession and control related to the matters under review potentially limited the discovery of relevant evidence and was not helpful to the investigation.

A few months later, the NFL learned that Mr. Brady’s cellphone had been destroyed and that the timing of its destruction was awfully suspicious. According to Mr. Goodell’s July 28, 2015 decision upholding the sanction:

The most significant new information that emerged in connection with the appeal was evidence that on or about March 6, 2015-the very day that he was interviewed by Mr. Wells and his investigative team-Mr. Brady instructed his assistant to destroy the cellphone that he had been using since early November 2014, a period that included the AFC Championship Game and the initial weeks of the subsequent investigation. During the four months that it was in use, almost 10,000 text messages were sent or received by Mr. Brady using that cellphone. At the time that he arranged for its destruction, Mr. Brady knew that Mr. Wells and his team had requested information from that cellphone in connection with their investigation. Despite repeated requests for that information, beginning in mid-February 2015 and continuing during his March 6, 2015 interview by the investigators, information indicating that Mr. Brady might have destroyed his cellphone was not disclosed until months later, on June 18, 2015, and not confirmed until the day of the hearing itself.

To be fair, Mr. Brady denies wrongdoing. He said in a Facebook post that:

I also disagree with yesterday’s narrative surrounding my cellphone. I replaced my broken Samsung phone with a new iPhone 6 AFTER my attorneys made it clear to the NFL that my actual phone device would not be subjected to investigation under ANY circumstances. As a member of a union, I was under no obligation to set a new precedent going forward, nor was I made aware at any time during Mr. Wells investigation, that failing to subject my cell phone to investigation would result in ANY discipline.

What If The FBI Had Been Investigating This Case?

If a person did the same thing as Mr. Brady during an federal criminal investigation, he’d likely be charged with obstruction of justice.

There are a several obstruction of justice statutes but the one invoked most often is 18 U.S.C. § 1512(c):

(c) Whoever corruptly –

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The other common one is 18 U.S.C. § 1505, which carries a maximum 5 year sentence. It reads, in part:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress . . . [s]hall be fined under this title, imprisoned not more than 5 years. . .

A twenty–or even five–year sentence is a big deal compared to a 4-game suspension.

What Is Obstruction of Justice?

Prosecutors have used federal obstruction statutes to reach a host of activities–destroying computers, altering documents, making false statements in an interview with federal agents, tampering with witnesses or jurors.

This charge has been used in such high profile cases as Arthur Andersen LLP; Martha Stewart; Andrew Fastow (former CFO of Enron); I. Lewis “Scooter” Libby; L’il Kim and Frank Quattrone (banker for Credit Suisse First Boston).

Let’s say that a person learns that she’s under investigation for conspiracy. She knows her cellphone contains communications with the people with whom she is supposedly in a conspiracy. She destroys her cellphone.

This person would be in a world of hurt. The government would undoubtedly conclude that she destroyed the phone to impede its investigation into her and charge her with obstruction of justice in addition to conspiracy.

Generally speaking, to prevail on an obstruction charge, the government must prove:

(1) a “proceeding” was pending at the time of the wrongful act;

(2) the defendant knew about the proceeding;

(3) the defendant intended to interfere, impede or obstruct this proceeding.

Most courts impose a high standard for intent in obstruction cases. They require the government to show that the defendant acted with the specific intent to impede a government investigation. “Specific intent” means that the defendant’s conduct was deliberate (i.e., not inadvertent) and that the defendant sought to bring about the specific result of obstructing the investigation. It is usually hard to prove what is going on in the defendant’s head.

WWFBID (What Would the FBI Do)?

Texts are notoriously hard to obtain. Cellphone companies don’t keep texts for very long or at all. So, the only way to obtain them in most cases is to obtain the cellphone itself and hope that the sender or recipient has not deleted them.

They may be hard to get, but texts are often critical evidence in cases.

Had the FBI been conducting the Deflategate investigation, things would have gone a bit differently. The grand jury would have issued a subpoena for the phone and Mr. Brady would have been required to turn it over. Or, the prosecutor would have obtained a search warrant for its seizure. Either way, federal agents would get the phone and review everything on it—relevant or irrelevant, highly personal or business related.

I read with amusement Mr. Brady’s statement that his lawyer “made it clear” to the investigators that the cellphone “would not be subject to investigation under ANY circumstances.” That wouldn’t happen in a criminal investigation; I don’t get to tell the FBI how it will conduct the investigation.

We have no idea whether Mr. Brady’s lawyer told him to destroy the phone. It seems unlikely. But, if a lawyer representing a criminal defendant gave that kind of advice, she may face her own obstruction charges. (However, these types of charges against a lawyer may not stick.)

Tom Brady may be upset about the NFL’s decision and he may be unhappy about the 4-game suspension. Mr. Brady is damn lucky it was only the NFL on the other side of the table and not the FBI.

My clients aren’t that lucky.

Please Don’t Destroy Evidence. Please.

One of the very first things I tell any potential client in a criminal case is to keep all the evidence. Destroying evidence, even inadvertently, can lead to criminal charges for obstruction of justice.

I may be able to help you craft a successful defense to the substantive charges you face, but if you destroy evidence? You are making the prosecutor’s job a whole lot easier. And mine a whole lot harder.

Disclosure: I’m a Baltimore Ravens fan so I’m no fan of the Patriots. This one still hurts. I’m also no fan of Roger Goodell and the process used during the investigation seems questionable, at best. At least in a criminal case you know that destruction of evidence could lead to punishment; it appears that no such rule existed before Goodell decided it did.

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