The Supreme Court in Yates: The Wrong Response to Overcriminalization
Of fishes and tangible objects
The Supreme Court ruled last week in Yates v. United States that fish are not “tangible objects” within the meaning of a federal obstruction of justice statute. Although many are hailing Yates as a win in the fight against overcriminalization, it’s a Pyrrhic victory at best.
Concerns about overcriminalization – the belief that there are too many criminal laws on the books and too many inappropriate prosecutions – may be addressed in several different ways. We could focus on training prosecutors to do a better job of exercising their discretion in deciding when to bring cases and what crimes to charge. We also could focus on urging Congress to write criminal statutes that are clear and narrowly focused, and not to respond to seemingly every problem by enacting more criminal sanctions. Ideally, we could persuade Congress to undertake a sweeping overhaul and reform of the federal criminal code.
But the worst way to respond to overcriminalization is for courts artificially to narrow criminal statutes through results-oriented decisions that ignore the plain language of the law and ultimately lead to irrational results. Unfortunately, that’s exactly what the Supreme Court did in Yates.
Yates will be remembered for many things. The different opinions feature some of the strangest bedfellows among Supreme Court Justices in recent memory. It may be the first time a Supreme Court opinion has included two references to Dr. Seuss as well as one to the children’s game of Mad Libs. And it almost certainly set a Supreme Court record for bad puns, as Justices, brief writers, and commentators alike were unable to resist the many opportunities for groaners about fish and fishing.
But Yates should not be seen as some kind of milestone in the fight against an out-of-control criminal code. There’s an old saying that bad cases make bad law. In Yates, a prosecution that seemed excessive led the Supreme Court to adopt a strained and irrational interpretation of a relatively straightforward statute. The outcome will deprive prosecutors of a useful tool in other, more serious cases, and will do absolutely nothing to cure the problem of overcriminalization.
The Supreme Court's Decision
Captain John Yates was fishing in the Gulf of Mexico when an inspector boarded his vessel and discovered about seventy red grouper that were below the legal minimum size. The inspector issued Yates a civil citation and instructed him to keep the undersized fish on ice until he returned to port, where federal officials would seize them. Once the inspector left his boat, however, Yates ordered a crew member to throw the undersized fish overboard and replace them with larger ones. He also instructed his crew to lie to federal officials about what had happened.
Yates was charged with three crimes, including obstruction of justice under 18 U.S.C. § 1519. That statute provides up to a twenty year penalty for anyone who “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 federal matter. The government charged that Yates violated this statute by destroying a tangible object – the undersized fish – with the intent to obstruct the federal investigation of his violation of the fishing regulations.
Yates’ primary argument was that § 1519, which was passed as part of the Sarbanes-Oxley reforms in the wake of Enron and other corporate scandals, is an “anti-shredding” provision aimed at the destruction of documents and business records. In context, he argued, the term “tangible object” refers only to objects that may store information within them, such as computer hard drives or flash drives. The statute, he claimed, does not cover every kind of tangible object imaginable – and does not cover the destruction of fish.
Writing for a four-Justice plurality, Justice Ginsburg (joined by Chief Justice Roberts and Justices Breyer and Sotomayor) agreed with Yates. Although acknowledging that “tangible object” is not ambiguous on its face, Justice Ginsburg concluded that, considered in context, the term must be given a narrower reading. Because Congress had in mind Enron, Arthur Andersen, and document shredding when it passed the statute, the term “tangible object” should be interpreted to mean only objects “used to record or preserve information.”
The plurality held that canons of statutory construction support this interpretation. The term “tangible object” is preceded by the words “document” and “record,” which suggests it refers to objects that, like documents and records, store information. Similarly, the statute prohibits “falsifying” or “making a false entry in” documents, records and tangible objects. Those verbs, Justice Ginsburg concluded, also support a narrow interpretation of “tangible object:” although one can make a false entry in a computer hard drive, for example, one cannot make a false entry in a fish.
Justice Alito wrote a separate concurrence to emphasize the narrowness of the Court’s opinion. Although he thought it was a very close call, he agreed with the plurality that Yates had the better of the statutory interpretation argument.
In dissent Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas, adroitly gutted the other opinions. (I warned you the fish puns were hard to resist.) She said the question is really a simple one: does “tangible object” in the statute mean what it means in common, everyday English usage? She concluded that the answer is “yes,” and that “conventional rules of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible.”
Justice Kagan agreed that Congress was concerned with the destruction of evidence that would impede federal investigations when it passed § 1519. But evidence may take many forms, including not just documents and records but other objects as well. Given the concerns about obstruction of justice, it made sense for Congress to pass a ban on destruction of evidence of any kind, and it used broad language to do so.
The rules of statutory construction relied upon by the plurality and concurrence, Justice Kagan continued, come into play only when there is ambiguity in the statute. Here there is none: “tangible object” is a very broad term, but it is not ambiguous. The plurality and concurring opinions, she argued, are essentially exercises in creating ambiguity where none exists and then resolving it in favor of the defendant. There is no reason to believe, she concluded, that “tangible object” in §1519 means anything other than what it says.
The Result: a Mixed-Up World Worthy of Dr. Seuss
There is a fundamental incoherence at the heart of the plurality and concurring opinions. The decision narrows the class of evidence to which the obstruction statute applies by holding that “tangible object” in §1519 should be limited to objects that “record or preserve information,” and concludes that class of evidence is limited to objects such as computer hard drives and flash drives.
But all evidence, in whatever form, "records and preserves information." That’s what makes it evidence. A bloody knife, a stained article of clothing, and a ziplock of drugs all are of value to a federal investigation only because of the information they contain and convey. Information may include words on a page, but may also include an object’s dimensions or physical characteristics; things contained on the object such as fingerprints, bloodstains, or DNA; or simply the fact that the object exists. It would make no sense for Congress to ban destruction of only one form of evidence and not the others.
Suppose the inspector had taken photographs of the undersized fish, given them to Yates, and told him to bring the photos back to port to turn over to authorities along with the fish. Under the majority’s decision, it would now violate §1519 if Yates destroyed the photographs, but not if he destroyed the fish themselves – which are, of course, the best evidence of the violation. An interpretation of a statute that leads to such absurd outcomes should be suspect.
Nor can the Court’s decision be defended on the ground that Congress was concerned with corporate and financial fraud when it passed §1519. Evidence of such fraud is not limited to documents and records. For example, one aspect of the Enron investigation concerned fraudulent accounting transactions involving several Nigerian oil barges. Suppose a target of the investigation, seeking to cover up the transactions by denying the barges ever existed, ordered the barges towed out to sea and sunk. That would obstruct the Enron corporate fraud investigation just as Arthur Andersen’s document shredding did – but now it would not be covered by §1519 because a barge, according to the Court, is not a “tangible object.”
What’s more, although the Court supported its decision by noting that Congress had “trained its attention on corporate and accounting deception and cover-ups,” the Court’s holding does nothing to limit §1519 to such cases. The statute will still apply, for example, in a terrorism case if the suspects destroy their e-mail communications, or in a homicide case if a suspect destroys letters tying him to the victim. The Court claimed that §1519 is aimed only at a particular kind of case, but reached a result that limits the statute only to a particular kind of evidence.
The Yates result is further undermined when one considers how easy it would have been for Congress to use narrower language, if that was truly its intent. If the focus was solely on objects that store information, why not write the statute to say “document, record, or data storage device?” If the intent was for the law to apply only to corporate fraud investigations, why not include those words in the statute? The Court seems to believe that Congress was being deliberately opaque, and then performs mental gymnastics to “discover” Congress’ true meaning. It’s far more likely, as Justice Kagan observed, that Congress simply meant what it said and said what it meant.
An Ineffective Way to Combat Overcriminalization
Justice Kagan pointed out near the end of her opinion what really seemed to be driving the majority: concern about “overcriminalization and excessive punishment in the U.S. Code.” She agreed that §1519 may be a bad law that sweeps too broadly, but said the remedy is not for the Court to rewrite the law: “we are not entitled to replace the statute Congress enacted with an alternative of our own design.”
It was pretty clear from the oral argument that the prosecution troubled most of the Justices. Interestingly, though, two of the Justices who seemed most concerned at oral argument about prosecutorial discretion and why the case was charged as it was – Justices Scalia and Kennedy – both joined Justice Kagan in her dissent. Although they thought the prosecution was excessive, they recognized that the proper remedy was not to adopt a tortured and unnatural reading of the statutory language.
The dissenters are correct, as evidenced by the fact that Yates will actually do nothing to reduce overcriminalization. Many of the groups that filed amicus briefs in support of Captain Yates were focused on the problem of overcriminalization. Those groups are now claiming victory, but those claims are misguided. Recall that Yates was charged with three different crimes, and was convicted of two – his other conviction was for violating 18 U.S.C. §2232(a), which prohibits destruction of evidence to prevent its seizure. That felony conviction remains undisturbed.
If the argument is that someone who engages in conduct like that of Captain Yates does not deserve to be prosecuted at all, merely removing one arrow in the federal prosecutor’s quiver will not achieve that result. There are plenty more charges from which to choose – such as §2232(a) -- if a prosecutor is so inclined.
Others may point out that charging Yates with §1519 was particularly inappropriate because it is a twenty-year felony. But this is mostly a rhetorical point; no judge or lawyer involved in the case would ever have believed that Yates faced anything close to twenty years. If an over-zealous prosecutor tried to intimidate Yates by threatening to lock him up for twenty years, a defense lawyer likely would laugh in the prosecutor’s face. As Justice Kagan observed, statutes like §1519 provide a wide range of potential penalties because they apply to a wide range of misconduct. We rely on judges to fashion an appropriate sentence in any given case. The judge in Yates’ case did just that, sentencing him to only 30 days in prison.
What’s more, the decision in Yates does nothing to prevent §1519 from being applied in other trivial cases where a twenty-year felony may seem excessive. For example, as Justice Kagan pointed out, if Captain Yates had destroyed a ship’s log recording the catch, rather than the fish themselves, that could still be prosecuted under the Court’s decision.
So when all is said and done: Yates is still a convicted felon; if another Captain comes along tomorrow and does exactly the same thing he may still be prosecuted and face the same ultimate punishment; and §1519 itself may still be applied in minor cases where it seems clearly excessive, so long as the right kind of evidence is involved. Given all of that, where exactly is the victory in the fight against overcriminalization?
In the meantime, other cases not as trivial as Yates’ will be affected. For example, two friends of the alleged Boston Marathon bomber Dzhokhar Tsarnaev were recently convicted of violating §1519 by taking his backpack, which contained evidence of his involvement in bomb-making, and throwing it in a dumpster. Now that the Court has ruled a backpack is not a “tangible object” under §1519, those convictions likely cannot stand.
By imposing a strained interpretation on the statute in Yates, the Court has removed a potentially valuable tool that prosecutors could use effectively in other cases in which all would agree it is completely appropriate. The Court’s definition of “tangible object” may have led to the desired outcome in Yates’ case, but it leaves behind a statute that draws arbitrary distinctions, ignores common English usage, and makes little sense.
Bad cases make bad law. That’s the true legacy of Yates.
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