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Wednesday, October 29, 2014

Yates, A Fishy Case

Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it's a weird one.

The oddity of Yates begins with its factual background. A federal investigator caught a fishing crew with illegally small fish, in violation of a federal environmental and conservation law. The investigator recorded the 72 undersized fish and directed that the fishermen hand over the unlawful catch on their return to shore. Once the investigator had left, the fishermen threw the illicit cargo overboard in an apparent attempt to replace it with larger, lawful fish. When the fishermen returned to shore, the investigator realized that the substitute fish were red herrings. Since the discarded fish were evidence that the fishermen had engaged in illegal fishing in violation of federal law, the lead fisherman, named Yates, ended up being convicted of violating Sarbanes-Oxley’s obstruction of justice provision (18 U.S.C. §1519) and receiving a 30-day sentence. Yates lost his first appeal and petitioned for certiorari.

Consistent with a rising trend in Supreme Court litigation, Yates benefitted from a savvy publicity campaign coincident with the Court’s consideration of his petition. On April 24, 2014, the day before the Justices met in conference to discuss petitioner’s case at the Supreme Court, Politico prominently ran a piece entitled: “A Fish Story: I got busted for catching a few undersized grouper. You won't believe what happened next.” Written in the first person from Yates’s point of view, the piece discusses Yates’s cert petition and provides arguments in favor of his case that would seem out of place in a brief. For example, the piece concludes: “It says something about federal criminal law that it can be used against unassuming, hardworking Americans for a state civil matter. It says something else that federal officials can trespass those same laws with impunity.” The Court voted to grant cert the next day.

Despite the petitioner’s favorable publicity and support from prominent cert-stage amici NACDL and Cause of Action, the Court’s decision to grant was still something of a surprise. There was no circuit split, no transgression of Supreme Court precedent, and no special national interest justifying immediate resolution of the case. Moreover, much of the emotional energy behind the case seemed factbound in the extreme. The Court’s decision to hear such an odd and splitless case strongly suggested a desire to reverse and rule in favor of the defendant, perhaps on grounds that would reflect a broader skepticism toward the growth of federal criminal law. Reinforcing this impression, the Court’s decision to grant roughly coincided with its decision in Bond v. United States, a treaty power case that surprisingly turned on the Court’s sense that federal prosecutors had overreached and intruded on an area best left for states.

In the months that followed, a remarkably diverse coalition of prominent amici rallied to petitioner’s side. Yates’s supporters on the merits include the NACDL, Cause of Action, the Cato Institute, the Chamber of Commerce, leading criminal law scholars, and even Congressman Oxley of Sarbanes-Oxley. At the same time, a number of thoughtful commentators have suggested that the Court might change its mind after diving into the legal issue. Kevin Walsh nicely expressed this sentiment when he said that he started out “on the side of liberty” but “ended up on the side of text.”

The briefing is expansive, but a few salient points bear mention. By way of setup, here is the relevant text from 18 U.S.C. § 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

In brief, the government straightforwardly argues that the statute applies to the “conceal[ing]” of “any ... tangible object” with the intent to impede a federal investigation. Read in isolation, that prohibitory net is wide enough to catch the act of throwing undersized fish overboard. The defendant, by contrast, urges a contextual inquiry, emphasizing the phrase “mak[ing] a false entry in any record, document, or tangible object.” That language connotes the kind of conduct that prompted the law’s enactment—namely, Enron’s shredding of thousands of pages of potentially incriminating files. In Yates’s view, “tangible object” should be read as limited to objects, like files, that store information.

One way to assess Yates's prospects is to ask whether he can capitalize on any of the case's legal oddities. Here are some prominent contenders.

The feds shouldn’t worry about “a few undersized groupers.” You might expect that federal prosecutors would have bigger fish to fry. A similar sentiment was at work in Bond, where the majority couldn’t accept that it was a federal offense for a jilted lover to give her rival a minor burn or (hypothetically) poison a goldfish. The problem with this approach is that Yates was being investigated for violating an environmental regulation related to the conservation of fish in waterways—which, unlike mild chemical burns, is a routine thing for the federal government (and not just states) to be concerned with. Yates’s position thus seems to link the defederalization of criminal law with the defederalization of environmental law. Notably, some of Yates’s amici would likely welcome both forms of defederalization, but many would not.

Fish aren’t “objects.” One theme swimming just under the surface in Yates’s Politico piece and briefs is that it’s just plain silly to think that Sarbanes-Oxley meant to encompass fish when it prohibited the concealment of a “tangible object.” In Politico, for example, Yates was shocked that “the federal government charged me with the destruction of evidence—yes, fish.” Yates’s opening brief labels this result an “absurdity.” The suggestion, apparently, is that it’s odd to refer to fish as mere “objects,” which is stodgy and arid legal language. Surely that type of language is more naturally used in fluorescent-lit office spaces filled with humming shredders, rather than aboard sun-drenched boats on a rumbling ocean. But that intuition would require the Court to read a fishing exception into the statute, and even petitioner doesn’t argue for that result. Instead, petitioner’s rule would exclude many “objects” from the statute’s scope, including many things found in offices.

Congress doesn’t hide big fish in small ponds. Yates’s strongest legal claim to oddity is that the government’s reading has the effect of making § 1519 a very capacious provision—indeed, so capacious that it swallows up the listed terms “record” and “document,” as well as other federal laws relating to similar conduct. The Court has said that Congress doesn’t hide elephants in mouse-holes, and a similar sentiment may be at work here. In effect, the defendant limits the statute by reading it as: “any record, document, or similar tangible object.” While that conclusion finds strong support in the ejusdem generis canon, the government responds that the statute was deliberately modeled on similarly written provisions that are understood to be very broad. The government also gives examples involving concealment of corpses, drugs, and bloody knives. The suggestion is that Congress legislated a new, broader obstruction provision, rather than let wrongdoers even worse than Enron go unpunished.

To my mind, the assessment above indicates that this will be a much harder case for the defendant than the splitless grant would suggest.

From a theoretical standpoint, the most interesting issue in Yates is the question of how to ascertain ambiguity. In Bond, the Court seemed to reason that constitutional doubts could create ambiguity in a criminal statute. In his separate opinion, Justice Scalia railed against that result, arguing that ambiguity must preexist reliance on a substantive canon like constitutional avoidance. A similar interpretive choice is available in Yates, in that numerous defendant-friendly default rules—including ejusdem generis, noscitur a sociis, the rule of lenity, and a potential presumption against federal criminal regulation—seem capable of both creating and resolving statutory ambiguity. To the extent that the Court addresses this issue, Yates may shed light on whether the interpretive move in Bond was just a fluke.

Finally, I noted the other week that the North Carolina Dental Board case led to an astonishing amount of teeth-based wordplay in the press. Yates is bound to be even more irresistible on this score. When it comes to this case, coming up with contrived puns is like shooting -- well, you know what.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 29, 2014 at 12:24 AM | Permalink


"It's a terribly weak position and I'm surprised that the Court didn't come to the same conclusion before it granted cert."

Agree. Once you closely examine the intuitive reaction the legal issue mostly disappears. On Cape Cod recently there was a theft of thousands of oysters. It is intuitively strange that someone should be prosecuted for grand larceny for stealing oysters -- those prosecutions usually involve money, jewelry, electronic equipment, or vehicles -- but there is no good reason such a thing can't be prosecuted.

Posted by: alkali | Oct 29, 2014 5:06:58 PM

Some more problems for the petitioner:

His surplusage argument (i.e. that tangible object swallows record and document unless narrowed to record-like tangible objects), which you say is his strongest, just isn't correct. Actually, it's his reading that creates surplusage. Tangible object, as the government construes it, doesn't swallow document and record, because one can delete or alter, e.g., a Word document without destroying or altering a tangible object. (Yes, on some microscopic level you're changing the configuration of molecules on a hard drive somewhere, but I think if the statute only talked about tangible objects the government would be hard-pressed, at least, to get a conviction for the deletion/alteration of electronic documents.)

On the other hand, limiting "tangible object" to objects that contain records, as he proposes - hard drives, CD's, thumb drives, etc. - makes that phrase's inclusion in the statute utterly superfluous, as taking a hammer to a hard drive destroys the records that hard drive contains. Remarkably, petitioner's reply brief explains, in response to that argument, that "tangible object" isn't superfluous, because "a person could destroy a blank hard drive, mistakenly believing it contains incriminating information." Pet'r's Reply Br. at 7. So all "tangible object" adds, on his view, is blank hard drives or other blank "things used to preserve information" that a would-be obstructor mistakenly thinks contain records. It's pretty unthinkable that Congress added "tangible object" to the statute just to address the problem of unwitting blank hard drive destruction.

As to the ejusdem generis argument, I think two things undermine that. First, the very plausible claim that Congress simply was trying to cover all physical evidence and that "tangible object" just isn't your usual catch-all at the end of a list of terms with similar meanings. Second, usually when we apply ejusdem generis, we do so to an ambiguous term that's capable of bearing the narrowing meaning that canon gives it. (For example, petitioner cites a case where Justice Holmes held "vehicle," preceded by a list of ground vehicles, didn't include airplanes; in common parlance it usually doesn't.) Tangible object really only means one thing and until briefing in this case I'd never seen anyone use it to mean a miniscule subset of tangible objects that store information. If a mother tells her child to clear off all the half-eaten sandwiches, Coke cans, and other tangible objects from her bedroom floor (which also is covered with magazines and laundry), would anyone think she was only using "tangible object" to refer to unlisted food products?

More generally, what gives his argument some appeal is the oddity of convicting an undersized grouper-dumper under a document destruction provision in Sarbanes-Oxley. But it's clear, and he doesn't dispute, that the statute extends to undersized fish investigations; it criminalizes the destruction of documents or tangible objects with intent to influence "the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." His case is just about what a tangible object is. Thus, he would concede that, had he destroyed a fishing diary detailing how many undersized grouper he caught, that would violate the statute - even as he argues that concealing those very fish doesn't. It's a terribly weak position and I'm surprised that the Court didn't come to the same conclusion before it granted cert.

Posted by: Asher | Oct 29, 2014 2:19:40 PM

I appreciate the discussion here.

Another blog referenced the case & I looked into the story. Bond's crime to my mind was not quite as minor as Roberts et. al. made it out to be. The same applies here, especially (to quote the opinion below) that we aren't talking years in prison ala Bond but "30 days' imprisonment, followed by 36 months' supervised release."

As to the first comment, given all the prosecutions, there is going to be a few close cases. One value of the courts is to deal with them when they cross the line, but without context, it doesn't really tell me much about how bad the government goes overall.

As to the second, the case was taken for a specific question. Some aspects that some pointed to as making the prosecution unfair are not at issue though concerns about general unfairness might influence the justices to some degree. A case can be a bad prosecution on the merits without it being a case worthy of USSC review, especially with its limited docket. Bond was a major case involving treaty power and federalism. The discussion above notes "no circuit split, no transgression of Supreme Court precedent, and no special national interest justifying immediate resolution of the case."

Oh well.

Posted by: Joe | Oct 29, 2014 10:55:23 AM

While many of the facts never made it to court, there is more to the story. These fish had been on ice for four days prior to first measurement. Second, a grouper has an underbite. When the officer measuures from the top lip not the bottom lip, and does not measure in accordance with federal law, "mouth may be open or closed", there is up to one inch that is lost. The government's own witnessed agreed with us that fish shrink and the judge did rule, measurement should be in harvest state. The officer even testified he does NOT measure fish in accordance with federal law. We will never know the true measurement of these fish. In addition, all fish he measured hit 1/4 1/2, or 3/4. Not an 3/8 or 5/16, statistically improbable.

Now for the hook, the head of NOAA's law enforcement office was in front of Congress the same year my husband was indicted for SHREDDING 80% of his files while being investigated by the Inspector General's office. No indictment there. Not even a firing. Just a lateral move to another position. Justice, huh?

Posted by: sandy yates | Oct 29, 2014 8:58:23 AM


While I don't exactly sympathize with the defendant, cases like this aren't going to improve the government's reputation for overreaching in criminal matters.

That said, surely the defendant would've been guilty of something prior to SOX. Was there no wildlife- or lying-to-federal-officials-type provision the government could've relied on instead?


Posted by: Adam | Oct 29, 2014 7:57:51 AM

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