SARBANES-OXLEY, SHORT FISH & FEDERAL OVERKILL.

Sarbanes-Oxley, Short Fish & Federal Overkill.

Yates v. United States, 514 U.S. __ (Decided February 25, 2015), is an interesting case.  Yates was a fishing boat captain, on a multi-day fishing run off the coast of Florida, when his boat was boarded by Florida Fish and Wildlife Conservation Commission member John Jones.  Jones was deputized by the National Marine Fisheries Service to enforce federal laws, and he boarded the boat to check on Yates’ catch.  Jones discovered 72 red grouper that were less than the minimum legal length of 20″, the shortest being 18.75″.  Jones had the short fish placed in a crate on Yates’ boat and instructed Yates to hold onto them until he finished his fishing expedition and returned to shore.  When Yates returned to shore, however, Jones discovered that the fish on board, although less than 20″, weren’t quite as short as the length measured at sea.  Jones questioned Yates’ crew and learned that Yates had thrown the original short fish overboard and replaced them with fish caught over the remainder of the fishing expedition.  Jones took his grievance to a U.S. Attorney’s Office.  Thirty-four months after the short fish were measured on Yates’ boat, Yates was indicted for two federal offenses.  In the meantime, the fishing regulations had been changed to reduce the minimum length of red grouper to 18″.   The two federal statutes Yates was charged with violating were 18 U.S.C. §2232(a) (destroying or removing property to prevent a seizure) and 18 U.S.C. §1519 (knowingly altering, destroying, mutilating, concealing, covering  up, falsifying, or making a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence an investigation).  The §2232(a) offense is punishable by a maximum of 5 years in prison.  The §1519 offense is punishable by a maximum of 20 years.  The original, underlying offense of keeping short red grouper is a civil offense, punishable by a fine and/or fishing license suspension only.

Yates agreed that §2232(a) applied to the alleged conduct, but he argued that §1519 did not apply.  The §1519 offense was enacted as part of the Sarbanes-Oxley Act, in response to the document shredding committed by Enron employees to cover up their misdeeds.   Yates argued that, although §1519 prohibits destroying a tangible object to impede an investigation, the statute’s context indicates that it applies only to destruction of items having to do with documents and information, not fish.  Five justices of the U.S. Supreme Court (Ginsberg, Roberts, Breyer, Sotomayor in plurality, Alito concurring) agreed with Yates and found that, when construed in context, the §1519 prohibition against destruction of tangible objects does not extend to undersized fish.   Justice Kagan wrote the dissent, joined by Scalia, Kennedy and Thomas.  Kagan accused the other 5 justices of bending over backwards to reach their result, torturing rules of statutory construction to avoid the plain meaning of the words “tangible object.”   Kagan basically didn’t think their exercise in statutory construction passed the straight face test, as much as she might believe it’s ridiculous to prosecute Yates for a felony punishable by up to 20 years for tossing short fish overboard, when possessing short fish in the first place is only a civil infraction.  Kagan suggested that the plurality/concurrence were re-writing a statute they didn’t like, which is not the appropriate role of the Court no matter how ridiculous a statute is in application.  But I really like what Justice Kagan had to say about the statute itself and the federal criminal code in general, as follows:

“I tend to think, for the reasons the plurality gives, that §1519 is a bad law–too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code”  [my emphasis].  Yes!  Deep pathology in the federal criminal code!

I put this quote from Justice Kagan in my trio of favorite Supreme Court quotes of late, along with this quote from Justice Thomas’ dissent in City of Indianapolis v. Edmond, 531 U.S. 32 (2000) regarding the constitutionality of suspicionless roadblock stops:   “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” And then there’s this one (the only one of the trio not from a dissent) from Justice Roberts’ opinion for the Court, regarding warrantless searches of cell phones, in Riley v. California, __ U.S. __ (2014):  “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is…simple–get a warrant.”

But words are only words, except when they define the power of the government to convict and imprison…at will or at whim.



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