Commercial fisherman John Yates got let off the hook by the Supreme Court of the United States today. Caught by Officer John Jones of the Florida Fish and Wildlife Conservation Commission in the Gulf of Mexico harvesting undersized red groupers in federal waters, Yates ordered a crew member of the
Miss Katie to toss the suspect catch into the sea. Yates was charged—not with violation of some federal fishing law, but with violating a provision of the post-Enron Sarbanes-Oxley Act, which provides:
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.
"A fish is a tangible object," prosecutors argued. "Oh, come on, that's not what SarbOx was about—it's about financial records," Yates' attorneys responded.
In a 5-4 decision this morning, the Supreme Court agreed with Yates that this application of SarbOx was one tale too far, and dismissed the charge.
Head below the fold for one of the more unusual court lineups you'll see, and the first time that Donald Rumsfeld and Dr. Seuss were quoted in the same case.
It takes five votes to get to a majority, and it's the narrowest holding the controls, so we look to Justice Alito's one-man concurrence for the actual ruling here. Basically, he says, read the statute in context, and it's hard to imagine that Congress really meant to talk about fish:
Start with the nouns. Section 1519 refers to “any record, document, or tangible object.” The noscitur a sociis canon instructs that when a statute contains a list, each word in that list presumptively has a “similar” meaning. A related canon, ejusdem generis teaches that general words following a list of specific words should usually be read in light of those specific words to mean something “similar.” Applying these canons to §1519’s list of nouns, the term “tangible object” should refer to something similar to records or documents. A fish does not spring to mind—nor does an antelope, a colonial farmhouse, a hydrofoil, or an oil derrick. All are “objects” that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?.... To be sure, “tangible object” presumably can capture more than just e-mails; Congress enacts “catchall[s]” for “known unknowns.” But where noscitur a sociis and ejusdem generis apply, “known unknowns” should be similar to known knowns, i.e., here, records and documents. This is especially true because reading “tangible object” too broadly could render “record” and “document” superfluous.
...Next, consider §1519’s list of verbs: “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in.” Although many of those verbs could apply to nouns as far-flung as salamanders, satellites, or sand dunes, the last phrase in the list—“makes a false entry in”—makes no sense outside of file-keeping. How does one make a false entry in a fish? “Alters” and especially “falsifies” are also closely associated with file-keeping. Not one of the verbs, moreover, cannot be applied to file-keeping—certainly not in the way that “makes a false entry in” is always inconsistent with the aquatic.
Again, the Government is not without a response. One can imagine Congress trying to write a law so broadly that not every verb lines up with every noun. But failure to “line up” may suggest that something has gone awry in one’s interpretation of a text. Where, as here, each of a statute’s verbs applies to a certain category of nouns, there is some reason to think that Congress had that category in mind.
Justices Ginsburg, Breyer, Sotomayor and the Chief Justice (I told you this was weird) provide the other four votes, because they would've gone a bit further by limiting the statute
only to apply to record-keeping documents, rather than Alito's more limited "well, at least it doesn't apply to fish":
We agree with Yates and reject the Government’s unrestrained reading. “Tangible object” in §1519, we conclude, is better read to cover only objects one can use to record or preserve information, not all objects in the physical world....
The section applies to anyone who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the requisite obstructive intent. (Emphasis added.) The last two verbs, “falsif[y]” and “mak[e] a false entry in,” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See, e.g., Black’s Law Dictionary 720 (10th ed. 2014) (defining “falsify” as “[t]o make deceptive; to counterfeit, forge, or misrepresent; esp., to tamper with (a document, record, etc.)”). It would be unnatural, for example, to describe a killer’s act of wiping his fingerprints from a gun as “falsifying” the murder weapon. But it would not be strange to refer to “falsifying” data stored on a hard drive as simply “falsifying” a hard drive.
And they'd apply the rule of lenity, a canon which states "when in doubt, it's fairer to the defendant to apply a criminal statute narrowly":
Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object,” as that term is used in §1519, we would invoke the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” That interpretative principle is relevant here, where the Government urges a reading of §1519 that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil. In determining the meaning of “tangible object” in §1519, “it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.”
If you're doing the math, that leaves Justice Kagan, writing for herself and Justices Scalia, Kennedy, and Thomas (awkward?) who dissented, and would have led prosecutors hold onto this catch. Why? In her typically blunt, clear, straightforward language, Justice Kagan explains:
This case raises the question whether the term “tangible object” means the same thing in §1519 as it means in everyday language—any object capable of being touched. The answer should be easy: Yes. The term “tangible object” is broad, but clear. Throughout the U. S. Code and many States’ laws, it invariably covers physical objects of all kinds. And in §1519, context confirms what bare text says: All the words surrounding “tangible object” show that Congress meant the term to have a wide range. That fits with Congress’s evident purpose in enacting §1519: to punish those who alter or destroy physical evidence—any physical evidence—with the intent of thwarting federal law enforcement.
The plurality instead interprets “tangible object” to cover “only objects one can use to record or preserve information.” The concurring opinion similarly, if more vaguely, contends that “tangible object” should refer to “something similar to records or documents”—and shouldn’t include colonial farmhouses, crocodiles, or fish. In my view, conventional tools of statutory construction all lead to a more conventional result: A “tangible object” is an object that’s tangible. I would apply the statute that Congress enacted and affirm the judgment below.
I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).
You get the idea, but gosh darn it, Kagan can
write. Just a few things you'll see if you keep reading the dissent:
That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. ...
And legislative history, for those who care about it, puts extra icing on a cake already frosted.
And so §1519 was written to do exactly that—“to apply broadly to any acts to destroy or fabricate physical evidence,” as long as performed with the requisite intent. S. Rep. No. 107–146, at 14. “When a person destroys evidence,” the drafters explained, “overly technical legal distinctions should neither hinder nor prevent prosecution.” Id., at 7. Ah well: Congress, meet today’s Court, which here invents just such a distinction with just such an effect...
As Congress recognized in using a broad term, giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy. A person who hides a murder victim’s body is no less culpable than one who burns the victim’s diary. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch logfor the same reason. Congress thus treated both offenders in the same way....
The plurality searches far and wide for anything—anything—to support its interpretation of §1519. But its fishing expedition comes up empty....
But §1519’s meaning should not hinge on the odd game of Mad Libs the concurrence proposes. No one reading §1519 needs to fill in a blank after the words “records” and “documents.” That is because Congress, quite helpfully, already did so—adding the term “tangible object.” The issue in this case is what that term means. So if the concurrence wishes to ask its neighbor a question, I’d recommend a more pertinent one: Do you think a fish (or, if the concurrence prefers, a crocodile) is a “tangible object”? As to that query, “who wouldn’t raise an eyebrow” if the neighbor said “no”?
And this is a great conclusion:
Still and all, 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.
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
So, what's the big deal? Because not every case—and especially those which are not of constitutional dimension—turns on traditional "liberal/conservative" distinctions. And not every case is a "big case." But these are the cases where the Supreme Court gives guidance on a criminal statute which could impact a lot of people, harshly and unintentionally. And now, it can't.