One of the Supreme Court’s most interesting cases involves a fisherman and some undersized grouper.
In 2007, John Yates, a commercial fisherman, was working off the Florida shore. His ship, the Miss Katie, was boarded for a routine inspection by a federal deputized officer from the Florida Fish and Wildlife Conservation Commission. That officer noticed something odd about Yates’s catch – detecting some undersized grouper (regulations mandate that fish caught must be 20 inches or greater in length), he measured the fish caught and determined 72 grouper to be undersized. The officer told Yates to set aside those 72 fish aside in crates and that they were to be collected upon the ship’s return to the harbor. According to a crew member, Yates told his crew to throw the fish overboard and replace the fish with larger, legally sized fish. When Yates returned to shore, the officer counted the undersized fish and only counted 69, three undersized fish fewer than originally noted.
Yates was charged with three crimes under the 2002 Sarbanes-Oxley Act, a bill passed in light of the Enron scandal, in which the infamous energy company destroyed evidence that proved their defrauding of investors and the public. The text of the relevant part of that law, nicknamed “SOX,” is (emphasis added): “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.” Accused of blocking a federal investigation by destroying a tangible object, Yates was sentenced to 30 days in prison and a supervised release, including financial and travel limitations.
The question in this case is whether fish count as a tangible object. Yates contends that they do not since the list “record, document, or tangible object” creates a context of record-keeping things, like documents, which means a tangible object in the context of this law, would be something found in the office that would record information. The government’s lawyers, meanwhile, argue that, since SOX never defined the terms in the law, one must look at the words through their original meaning: a tangible object is a tangible object – an object that can be touched.
Yates argues that while the normal way to read a statute would be to look at its ordinary meaning, one must establish the surrounding context, since meaning entirely depends on the word’s context. Yates argues that the surrounding context supports the idea that the term “tangible object” referred to record keeping, since “document” and “record,” the two terms that are listed with “tangible object,” clearly refer to record keeping. So, for example, tangible object should refer to computers or hard drives, data storing mechanisms that are not “documents” or “records.” In fact, notes Yates, the statute earlier made reference to “making a false entry in” the listed record keeping places and, as he notes, one cannot make a false entry in a fish.
The government’s case relies on plain meaning interpretation of statute – if the law says a tangible object, it means any tangible object. In this context, they contend, stretching the original meaning of the law to the case is not very strenuous because it just mandates that evidence of wrongdoing is preserved, which, in this case, would be the fish. The government argues that the authors of SOX meant this part of the law to be a ban on destroying evidence, not necessarily related solely to white collar crimes. After all, the government says, Yates’s arguments wouldn’t make for consistent policy – for instance, he would allow a murderer to destroy the murder weapon but not the victim’s diary.
Yates is supported by numerous people and organizations, including Rep. Oxley, one of the co-sponsors of the legislation, and the National Association of Criminal Defense Lawyers, who argue that ruling in favor of the government would contribute to over-criminalization by expanding federal laws. Last year’s term featured a case, Bond v. United States, in which the Court weighed in on over-criminalization – after a woman used poison to attack her husband’s mistress, the government prosecuted her under an international treaty on chemical weapons. The Court ruled against the government’s response on a 9-0 decision. The government, in Yates, has no supporting amicus briefs.
In oral argument, the justices seemed perplexed and attacked both sides. While questioning John L. Badalamenti, the lawyer representing Yates, they tried to work out what pieces of evidence could be destroyed and what couldn’t be. Badalamenti’s explanation seemed fairly arbitrary. Pressed by Justice Breyer, he argued that it should be limited to objects that store business information. Justices asked about a number of examples regarding that arbitrary distinction, like that murder weapon example mentioned before, as well as whether destroying a picture taken of the fish would be illegal (destroying the photo would be, according to Badalamenti, but not destroying the fish). Justice Scalia remarked that the law seemed to be very expansive.
Roman Martinez, an assistant to the Solicitor General, argued on behalf of the government. Justice Scalia began by expressing frustration that a prosecutor would use a law like this against such a small crime. Justice Ginsburg then asked if there was any sort of manual from the Justice Department that would provide instructions for prosectors, to which Martinez responded that the manual instructs prosectors to go for the most severe charges possible. Scalia responded that, in cases of interpreting federal criminal laws, the Court must proceed with caution in light of this information. Justice Roberts expressed doubt at Martinez’s characterization of Yates, as a mastermind behind a cover-up scheme. “You make him sound like a mob boss,” Roberts said. Justice Alito seemed concerned about the prospect of using this law for all sorts of minute “cover-up” scenarios, such as kicking a small charcoal from a forbidden campsite in a public park.
The case offers a bit of commentary on over-criminalization in America: Martinez said that prosecutors from the government are trained to seek the most severe sentence available. Justice Scalia seemed particularly perturbed by this revelation. It was Scalia, in fact, who most prominently brought up the Bond case from last term and jokingly (perhaps) asked if the prosecutor of this case was the same as the one in the Bond case.
Todd Haugh, an Assistant Professor of Business Law and Ethics at the Kelley School of Business at Indiana University, wrote a fascinating article in the Northwestern Law Review on over-criminalization. And while Haugh writes that he supports a ruling for Yates, the substance of the article hardly touches on the merits of the case. Instead, Haugh describes the problem from a different angle: how does this over-criminalization affect the frequency and severity of actual white collar crime, which SOX was passed to prevent? Haugh argues that it actually increases these factors because the inclusion of minor crimes like the one in Yates and the one in Bond make make demons out of “good people”, like Yates. Including “good people” among the list of those accused of committing federal crime more easily rationalizes white collar crime because would-be white collar criminals see that they would be among the “good people.” That need to rationalize, argues Haugh, is a necessary psychological pre-condition for the committing of crime. Remember: in a lot of cases of white collar crime, the criminal often thinks he or she is doing good and that’s especially true if the crime is rationalized. It’s twisted but, of course, we’re talking about criminals. To be sure, Haugh applies these principles to the Yates case; he is essentially a white collar criminal, he tried to deflect responsibility and minimize the impact of his crime, and he displayed a lack of faith in law enforcement. As Haugh states immediately before the conclusion, the overly complex state of criminal law enforcement now “by no means excuses his behavior, but it does provide a new way of understanding overcriminalization’s harms.”
Ironically, though, it’s possible that Haugh’s argument would be exacerbated by not convicting Yates – after all, if Yates committed a crime, was a “good person,” and got off, then white collar criminals, if they have a rationalization, would be more likely to commit major crime because they would perceive themselves to be righteous. In fact, Haugh cites work by criminologists Gresham Sykes and David Matza, who find that the flexibility of criminal law itself can prove a further catalyst for crime. Ruling for Yates would certainly demonstrate that flexibility by saying “SOX is serious – in fact violating it could guarantee 20 years – but only in severe cases. If you destroy evidence in a minor federal investigation, you’re off the hook.” Of course, Haugh has a good response. Citing leading over-criminalization scholar William Stuntz, he argues that overly broad criminal statutes leave interpretation (and enforcement) up to prosecutors and law enforcement officers. The problem with that, of course, is there would be no national, consistent law – all criminal law and prosecution would be incredibly arbitrary. Second, since prosecutors, not courts, choose which law(s) to prosecute under, they can take a non-proper approach to prosecute the defendant, choose an easy crime to prove or a crime with a severe penalty or both, and force the defendant into a plea agreement, not because they are guilty but simply because the chances they get off (or at least not be given a severe sentence), irrespective of whether they’re actually guilty or innocent, massively decrease, ultimately circumventing the constitutionally guaranteed rights of the accused. All these pitfalls, Haugh argues, make the criminal justice less legitimate and more indefensible.
The Court’s decision was released on February 25. In a 5-4 vote, the Court sided with John Yates, overturning his criminal conviction. Justice Ginsburg wrote the majority opinion, which was joined by Justices Roberts, Breyer, and Sotomayor. Justice Alito, it seemed, was the swing vote, siding with the majority filing a concurring opinion to note that he only agreed with the outcome. Justice Kagan wrote the dissenting opinion, joined by Justices Kennedy, Scalia, and Thomas. The opinions are complex, in-depth discussions of methods of statutory construction, and in particular whether context matters.
Ginsburg’s majority opinion claims that while, ordinarily, one must look at the dictionary definition of a term, it is always important to understand the context of the word. In this case, the law is in the context of financial documents and records, and even the heading for the relevant section of the law announces that the text contained within is in the context of financial crime. Thus, we must use the rule of lenity and rule in favor of the defendant when the criminal statute is ambiguous. Justice Alito said that a fish is simply not a tangible object, or at least one that comes to mind. Alito’s concurrence also emphasizes the title of the relevant section, which was “Destruction, altercation, or falsification of records in Federal investigations and bankruptcy.” This certainly clarifies what the intent of this section of the law was – financial records.
Kagan’s dissenting opinion made clear the problem of over-criminalization and acknowledged that, in the ultimate goal of reducing the epidemic, ruling against Yates wouldn’t help, but she stated that the judiciary remaining only a judiciary branch, not a legislative branch, was of the utmost importance. There may be flaws in the law, but it is not the Court’s duty to change the law. Congress was “broad but clear.” Kagan argues that a fish is a tangible object, plain and simple. She even cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish as evidence. Kagan went on to write that destroying physical evidence of a crime is as deserving of a punishment as destroying a record documenting a crime. Kagan also noted that the logic of matching the verbs with the nouns (“you can’t make a false entry in a fish”) is an unprecedented form of logic in a court opinion.
Justice Robert’s siding with Yates is notable as a foreshadowing of his majority opinion in King v. Burwell, for which he wrote that “established by the State” should be interpreted to mean established by the states and/or the government since any other interpretation would defeat the purpose of the legislation. And as Noah Feldman, professor of constitutional and international law at Harvard University, writes in an article for Bloomberg View, Alito’s refusal to join Ginsburg’s decision could reflect his own prediction of ACA – that he didn’t want to be caught contradicting himself.
For a litany of puns, read this article. Relatedly, alternate titles for this post were “SOX with Lox” and “On the Waterfront.”