Ernest Hemingway’s classic The Old Man and the Sea is about an old man who hasn’t caught a fish in 84 days and the ultimate destruction of his greatest catch, an 18-foot marlin. Oral argument in the Supreme Court’s classic Yates v. United States is about John Yates, a Florida fisherman, and the willful destruction of federal evidence in the form of 18-inch red groupers.
In 2007, Yates was stopped on board his boat, the Miss Katie, by a state official who measured his fish and found that 72 came in somewhere under the 20-inch legal minimum. The official wrote up a citation and ordered Yates to preserve the evidence in a wooden crate and return to shore to get in big, big trouble. Instead, Yates had his crew chuck the shrimpy grouper into the Gulf of Mexico and then tried to claim that the larger fish in the crate were the same ones detained earlier by the Florida inspector. A crew member admitted he had thrown the fish overboard at Yates’ direction.
Instead of going after him for the fishing violation, the feds charged Yates under a provision of the Sarbanes-Oxley Act of 2002, enacted after the Enron scandal to prevent financial firms from shredding documents and otherwise destroying evidence. Yates was convicted in 2011 under a section making it a crime to tamper with or destroy “any record, document, or tangible object” with the intent to influence or obstruct a federal investigation under “any matter within the jurisdiction” of any federal agency. Conviction can bring up to 20 years in prison. A jury convicted Yates. He served 30 days in jail. The 11th U.S. Circuit Court of Appeals upheld the conviction, under the theory that a fish basically qualifies as a “tangible object.”
No, seriously: grouper.
Or as Assistant Solicitor General Roman Martinez tried to characterize it this morning:
Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of federal law. He directly disobeyed that. He then launched a convoluted cover-up scheme to cover up the fact that he had destroyed the evidence. He enlisted other people, including his crew members, in that scheme and in lying to the law enforcement officers about it.
“You make him sound like a mob boss or something,” interrupts Chief Justice John Roberts, as the courtroom erupts in laughter. There is a lot of erupting in laughter today.
In keeping with the mood of the electorate, the main theme of the morning can be summed up as “hating on the federal government.” One justice after another takes a run at the Obama administration and its deranged overcharging of a sneaky fisherman with a federal document-shredding statute. The Justice Department won’t budge. “If you stop someone on the street and ask them, ‘Is a fish a tangible object?’ the answer would be yes,” Martinez explains patiently.
“Well, what if you stopped them on the street and said, ‘Is a fish a record or document or tangible object?’ ” retorts the chief justice.
“I don’t think you would get a polite answer to either of those questions,” chuckles Justice Antonin Scalia, who is having as much fun as a hunter can have talking about fishing.
Representing Yates this morning, Assistant Federal Defender John Badalamenti tries to limit the definition of a “tangible object” to items on which records could be stored. Justice Elena Kagan objects that elsewhere in the same statute “other object” refers to objects generally. She confesses that she can’t recall the Latin name for the canon of statutory interpretation governing such matters. (Scalia supplies it, deadpan: “Ejusdem generis,” to which Kagan shoots back, “I deserved that.”)
Justice Ruth Bader Ginsburg presses Badalamenti about how it can be possible that under his view of the statute you can be convicted “if you destroy a letter that the victim that you have murdered has sent you, but you can’t be indicted if you destroy the murder weapon?” The chief justice then wonders if you can be indicted if you destroy the murder weapon (a knife now, because, you know, fishing) “if the knife had the defendant’s name on it?” A colleague in the press office wonders whether you are on the hook for destroying fish with financial records inscribed on them. This, this is where our boat is sailing.
Justice Sonia Sotomayor asks what Badalamenti would have proffered as a defense had his client, Yates, been charged under another provision of the statute that requires that the wanton fish destruction be done “corruptly.” Badalamenti replies that it wouldn’t have been “corrupt” in the sense that it was “wrongful, immoral, depraved, or evil.” Sotomayor pushes back: “Destroying and substituting fish is not a corrupt act?” she marvels.
Badalamenti replies, “It would have been my defense.” To which Sotomayor responds, grinning, “Touché.”
Justice Anthony Kennedy, getting in on the action: “Suppose the fisherman took pictures of the fish, and then he destroyed both the pictures and the fish. Liability?” He adds, “I’m talking not about a film on one of these screens, but an old-time film that you can pick up. A picture, a picture!” When Badalamenti concedes that Yates would have been liable had he thrown away a photo of the undersized grouper, Kennedy replies, “It seems very odd that you can throw away the fish without violating the act, but you can’t throw away the picture.”
This whole case lives under the mushroom cloud of Bond v. United States, a similarly goofy case from last term in which a woman was charged under a federal chemical weapons treaty for seeking revenge upon her former best friend (who had been improvidently impregnated by Bond’s husband) by spreading some toxic chemicals on her friend’s car, mailbox, and door knob in the hopes that her former friend would develop an uncomfortable rash. The court held, 9–0 that “an ordinary speaker would not describe Bond’s feud-driven act of spreading irritating chemicals as involving a ‘chemical weapon.’ ”
So, too, most of the justices seem to have very little patience with the feds going after John Yates with a white-collar destruction-of-evidence statute that carries a maximum penalty of 20 years in prison, merely because, as Scalia puts it to the assistant solicitor general a moment later, “This captain is throwing a fish overboard.” Scalia is only just getting started: “He could have gotten 20 years. What kind of a sensible prosecution is that? ... Who do you have out there that exercises prosecutorial discretion? Is this the same guy that brought the prosecution in Bond last term?” When Martinez tries to explain that this is the statute Congress drafted, Scalia is having none of it: “I’m not talking about
Congress. I’m talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years?”
Ginsburg asks what the Justice Department does when it has two “overlapping” statutes, one that carries a five-year sentence and another with a 20-year sentence. Martinez replies that in general the protocol is to “charge the offense that’s the most severe under the law.”
Scalia, upon hearing this, says, “If you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.” He catches himself talking about “making statutes” and amends that to say “or how much coverage I give to severe statutes.”
Roberts is unhappy with this vast discretion as well, asking Martinez, “According to the Justice Department manual, any case in which someone destroys a tangible object, you should prosecute them under this statute, because I assume 20 years is the maximum available penalty?”
“We do not prosecute every fish disposal case,” replies Martinez. Huge relief to the good people at Finding Nemo.
Justice Stephen Breyer wonders why the feds don’t have a normal destruction-of-evidence statute that would avoid deploying Sarbanes-Oxley against Sponge Bob. (The statute has, in fairness, also been used against child pornographers and a confederate of the Boston Marathon bombers.) Breyer also wonders if he himself could be sent up the river for 20 years if he destroyed a post office survey because “I hate postmen and I rip it up.”
Martinez tries to cite 35 instances in which the U.S. code uses “tangible objects” to refer to every little physical thing, but Scalia again stops him short: “Is there such a thing as an intangible object? I’m trying to imagine one.”
Justice Samuel Alito, listening to all this, finally says to Martinez: “You have arguments on all of these points, but you are really asking the court to swallow something that is pretty hard to swallow.” (All references to the Book of Jonah are purely accidental.) “Do you deny,” he continues, “that this statute, as you read it, is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of 20 years?” Twenty years! For tossing “a trout,” he adds.
Again Martinez tries to distract the court from its concerns about the crazy breadth of this statute by reminding the justices that the only issue before them is: “What did Congress intend with the term any tangible object?”
At which point Kennedy leans forward and grins: “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.” (I suspect his clerks voted for “Grouper, I don’t even know her” but were overruled.)
The Old Man and the Sea closes with the protagonist, older and wiser, dreaming of lions on an African beach. Yates v. United States closes with lawyers who now know what it must feel like to be devoured alive by lions on an American bench.