Near the end of the Supreme Court’s last term, the Court accepted a case that presented the seemingly bizarre question of whether a fisherman who tossed a fish back into the water had broken documents retention rules contained in the Sarbanes-Oxley law that is primarily meant to regulate the stock market and financial industry. Earlier this week, the Court heard oral argument in the case, and, if anything, the Justices seemed about as confused by the argument in the case as a lay person might be:
WASHINGTON — Most of the justices seemed troubled by Supreme Courtarguments on Wednesday about the prosecution of a Florida fisherman for throwing three undersize red grouper back into the Gulf of Mexico.
The fisherman, John L. Yates, was convicted of violating the Sarbanes-Oxley Act of 2002, a federal law aimed primarily at white-collar crime. The law imposes a maximum sentence of 20 years for the destruction of “any record, document or tangible object” in order to obstruct an investigation.
Mr. Yates’s primary argument was that fish are not the sort of tangible objects with which the law was concerned.
Chief Justice John G. Roberts Jr. seemed to agree. He asked what people would say “if you stopped them on the street and said, ‘Is a fish a record, document or tangible object?’ ”
Justice Antonin Scalia said, “I don’t think you’d get a polite answer.”
But Justice Anthony M. Kennedy said it would be odd to let Mr. Yates throw fish overboard, destroying evidence, but to allow him to be prosecuted for tearing up photographs of the fish.
Though Mr. Yates seemed likely to prevail on his main argument, the justice’s real ire was focused elsewhere.
Some were critical of the decision to prosecute Mr. Yates at all.
“What kind of a mad prosecutor would try to send this guy up for 20 years?” Justice Scalia asked. (Mr. Yates was sentenced to 30 days’ imprisonment.)
The Supreme Court has been wary of stretching federal laws to fit minor crimes, ruling in June in Bond v. United States, for instance, that a chemical weapons treaty could not be used as the basis for a prosecution of a domestic dispute.
“Who do you have out there that exercises prosecutorial discretion?” Justice Scalia asked the government’s lawyer, Roman Martinez. “Is this the same guy that brought the prosecution in Bond last term?”
Mr. Martinez said Mr. Yates’s crime was a serious one, involving lying and a cover-up.
Chief Justice Roberts was skeptical. “You make him sound like a mob boss,” he said.
The case arose from a 2007 search of the Miss Katie, Mr. Yates’s fishing vessel. A Florida field officer, John Jones, boarded the ship at sea and noticed fish that seemed less than 20 inches long, which was under the minimum legal size of red grouper at the time.
Mr. Jones, an officer with the Florida Fish and Wildlife Conservation Commission and a federal deputy, measured the fish and placed the 72 he deemed too small in a crate. He issued a citation and instructed Mr. Yates to take the crate to port for seizure.
But Mr. Yates threw the fish overboard and had his crew replace them with larger ones. A second inspection in port found only 69 undersize fish and aroused suspicions, and a crew member eventually told law enforcement officials what had happened.
Some justices were wary of the sweep of the law, which applies to “any matter within the jurisdiction of any department or agency of the United States.”
Justice Stephen G. Breyer said the law would allow prosecution for the destruction of a census form. “The risk of arbitrary and discriminatory enforcement is a real one,” he said.
John L. Badalamenti, a lawyer for Mr. Yates, said that sustaining the law would mean that “the American people will be walking on eggshells.”
Mr. Martinez acknowledged that the law may be subject to attack as too broad and vague. But he said those issues were not squarely raised in the case argued Wednesday, Yates v. United States, No. 13-7451.
Justice Samuel A. Alito Jr., who is generally sympathetic to arguments from prosecutors, was skeptical.
“You are really asking the court to swallow something that is pretty hard to swallow,” he said. The law, he said, “is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of 20 years.”
Lyle Denniston summarizes the argument, and provides some more detail for Justice Scalia’s comment that it made no sense to use this law to prosecute a guy over fish:
From the outset, then, this case had the potential to come down to the question of whether there was too big a gap between the original intent of Congress and the choice that federal prosecutors made in this specific case when they went after the fisherman and the dumping of seventy-two red grouper — itself not a crime but, at most, a civil offense justifying a fine.
That was the theme that an assistant federal public defender from Tampa, John L. Badalamenti, leaned on throughout his time at the lectern Wednesday. The Justices were quite penetrating in their questioning, and, at one point, Justice Anthony M. Kennedy, while saying that the lawyer’s objection had “considerable force,” suggested that the reading of the law he was pushing could mean that the law had an even wider breadth than the government had argued.
The exchanges left the initial impression that most of the members of the Court were skeptical of Badalamenti’s points, as they tried various hypotheticals to test just what kinds of evidence his view of the law would allow prosecutors to challenge as an obstruction of a federal investigation. The fisherman’s lawyer wanted the law confined to the destruction of records or other items used to store information, and the Justices spun out a series of scenarios to gauge what that would entail.
Early on, it seemed as if the fisherman’s lawyer was not really getting across his basic argument that the law was drafted in such sweeping terms that it was potentially draconian. Gradually, though, that idea was creeping into the argument, as when Justice Stephen G. Breyer commented that, “at first blush,” the law “seems far broader than any witness-tampering law, any obstruction statute, any lying to a federal agent law that I’ve ever seen.”
(…)
Scalia was saving his involvement for the government’s lawyer, an assistant to the U.S. Solicitor General, Roman Martinez, who came prepared to argue that the law did, indeed, reach the intentional destruction of “all types of physical evidence.”
Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days. “What kind of sensible prosecutor does that? Who do you have who exercises prosecutorial discretion? Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one? Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors. Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws. When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked. Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time. He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
Denniston’s colleague Amy Howe summarized that part of the argument for her “In Plain English” recap of the argument:
Assistant to the Solicitor General Roman Martinez encountered even more skepticism during his thirty minutes of oral argument, as Justice after Justice voiced concerns about the potentially sweeping reach of the government’s interpretation of the statute. Justice Antonin Scalia was Martinez’s main antagonist, unleashing a barrage of questions and comments that removed any doubt about where his sympathies lay. He complained that, under the statute, Yates had faced a maximum sentence of up to twenty years. What federal prosecutors, he asked Martinez, have this kind of discretion in choosing what charges to bring? Referring to last Term’s Bond v. United States, in which a Pennsylvania woman had been charged with violating the federal laws implementing an international chemical weapons treaty after she tried unsuccessfully to poison her husband’s lover, Justice Scalia asked Martinez whether the prosecutor in this (Florida) case was “the same guy” as in Bond. “What kind of mad prosecutor,” Scalia continued, “would ask for twenty years” in prison for destroying fish?
Justice Ruth Bader Ginsburg joined the fray, asking whether the Department of Justice gives federal prosecutors any guidance on what charges they should bring in a case like this. A similar statute, carrying only a five-year maximum sentence, would also apply to Yates’s case, she noted. Martinez’s response – that a manual instructs federal prosecutors to bring the charges that are most severe – drew even more ire from Justice Scalia. He warned ominously that, “if that’s going to be the Department of Justice’s position, we’re going to have to be very careful about interpreting the scope” of laws like these.
The Chief Justice also appeared skeptical of the government’s argument. He inquired whether the government would bring charges under this particular statute whenever someone destroys a “tangible object.” Martinez assured him that the federal government does not actually file criminal charges in “every fish disposal case.” However, that answer appeared to provide little comfort to the Chief Justice, who shot back that the important thing was that, on its reading, the government could do so. And the possibility of a twenty-year sentence, the Chief Justice suggested, would give government lawyers “extraordinary leverage” to try to get someone to plead guilty. Justice Stephen Breyer would later echo these concerns, telling Martinez that, “if you can’t draw a line, there is a risk of arbitrary or discriminatory enforcement” of the statute.
What happened here is often the fun part of oral argument at any level. With little warning you can see an argument head off in a direction that nobody was anticipating, and it can often end up being the basis for what happens in a given case. In this case, led by Justice Scalia there appears to be some segment of the Court that is wondering why this case even made its way before them and how a prosecutor could make a seemingly bizarre decision like using a law meant to deal with destruction of documents in the course of a securities fraud investigation to prosecute in a case dealing with the proper size and number of fish taken from a waterway. Given the potential sentence in this case, which admittedly is probably not the sentence that Yates would receive in this case given Federal sentencing guidelines, that question seems to be even more important and the overkill that the prosecutors are engaging in becomes even more obvious. Let’s accept for the sake of argument, then, that what Yates did was wrong both in that he was catching fish outside the appropriate regulations and that he attempted to dispose of the evidence before he got back to port. Potentially, there would be some charge that could be brought against him for destruction of evidence, although that leaves open the question of whether throwing a fish that is still alive back in the water is really “destruction” of anything but lets leave that one aside for the moment. Given that, it’s unclear to me why it was necessary to charge Yates under the law with the most extreme law possible, except to chalk it up to the rather unpleasant habit of prosecutors at all levels to overcharge and over punish.
As noted above, there seem to be some similarities between the way the Justices reacted to the government’s argument in this case and their decision last term on a case dealing with the use of a chemical weapons treaty to prosecute a woman who had attempted to poison a woman who was having an affair with her husband. In that case, the Court ruled that the treaty could not be used in a domestic law enforcement matter because the case was too far afield from the intent behind the law that as adopted to enforce the treaty. That seems to be the case here as well. Even accepting the legitimacy of Sarbnes-Oxley, the law was obviously not intended to cover fish even if its wording could be stretched to do so. Given that, it would seem likely that the Court’s best option here would be to throw out the conviction on that basis. Yates may have done something wrong, but what he did wrong was not what Congress was intending to punish when it adopted this law and prosecutors should not be permitted to stretch the law in this manner.
Here’s the text of the Oral Argument:
