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.

  1. 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.
  2. 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.
  3. 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.

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8 Comments

Filed under Cert Stage, Interpretation

8 responses to “Yates, A Fishy Case

  1. Joe R.

    Is there no other federal criminal staute relating to tampering with evidence than this provision of Sarbanes-Oxley? It doesn’t seem relevant to the conduct for which Yates was haled into court.

  2. ColoComment

    Just a layman here (and I confess that I have not clicked through to the original paperwork as I probably wouldn’t understand it in any case), but I thought that Sarbanes-Oxley only applied to issuers that had publicly-traded securities, or had applied for securities registration, or that had otherwise to file financial reports. Or something like that….

    How does a fisherman fall within the purview of SOX?

    PS: why didn’t the investigator confiscate the undersized fish as evidence and take them with him?

  3. Joe R: I think that the Court will be very interested in figuring out how Section 1519 was intended to fit into the government’s overall ability to prosecute obstruction. For example, too much statutory overlap might be a signal that one or another statute should be read more narrowly. In Yates, there are other potentially applicable provisions; in fact, Yates was convicted on a second count with a multi-year max.

    ColoComment: SOX is a large statute with many pieces. This statutory component isn’t limited in the way you describe. As for why the authorities didn’t confiscate the fish, I am not sure. The US brief does suggest that the investigator considered sealing the fish on the fishermen’s boat, but didn’t want to deprive them of access to other items (like their provisions) in the same container. Perhaps the investigator lacked a feasible way to transport all those fish and so just kept a written record.

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