Constitutional Law Criminal Law Litigation

Fishy Case Makes SCOTUS Question Feds Prosecutions

The US Attorney’s Office took a beating in oral arguments before the Supreme Court yesterday over a case involving illegal fishing. The case shows how the Office often stretches the language and meaning of criminal statutes to cover actions that were never meant to be covered by the statute.  I have never been a fan of criminal statutes that get named after somebody  as they are usually a reaction to one particular criminal event and then get used to encompass a whole set of other events that have nothing to do with the original crime. While that scenario usually applies to laws named after victims of  horrific crimes, its also applicabel to laws named after the Congressmen who passed them.

The case I am talking about involves a ludicrous application by the US Attorney’s Office of a particular section of the Sarbanes-Oxley Act, passed to fight corporate fraud after the Enron Scandal. The Sarbanes–Oxley Act of 2002, also known as the ‘Public Company Accounting Reform and Investor Protection Act’ (in the Senate) and ‘Corporate and Auditing Accountability and Responsibility Act’ (in the House) sets new or enhanced standards for all U.S. public company boards, management and public accounting firms. The sections creating criminal penalties for corporate fraud including manipulation of records to avoid or obstruct prosecution, were made particularly severe but were not limited to public companies, justbusinesses”  

Section 1519 of the Act states:

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. 

As you can see this language is very broad and sweeping. It doesn’t just cover public companies, it doesn’t just cover corporate fraud; it covers anyone destroying any “record, document or tangible object”  with the intent to obstuct a prosecution by any Federal agency. A recipe for trouble that snared a local fisherman in the govenrment’s net.

These guys could get you 20 years in jail .  Photo Courtesy of
These guys could get you 20 years in jail .
Photo Courtesy of

A fish-and-wildlife officer found 72 grouper that appeared to be less than the 20-inch minimum size limit on John Yates’s commercial fishing boat  The game officer issued the fisherman a civil citation and ordered Mr. Yates to bring the fish back to port. Instead, Mr. Yates told his crew to throw the fish overboard and replace them with bigger fish that met the size requirements, according to the complaint. Yates was arrested and charged with violating Section 1519 of the Sarbanes Oxley Act.  After all, the government alleged, he “destroyed” “tangible objects” “with the intetnt to impede” “the investigation” “of a department or agency of the United States.” He was convicted and sentenced to 30 days in jail and five years probation.   The appeal went up to the Supreme Court and was argued yesterday. While all the judges had questions for Mr. Yates’ lawyer (except Justice Thomas of course), those questions were relating to elements of statutory construction. In other words, was the term “tangible objects” limited by the two terms in front of it: “record” and “document” so that Congress meant “tangible objects” like record or document or did “tangible object” maintain it its normal meaning – anything you can touch. But the judges reserved their principal tounge-lashing for the government.

While they focused a great deal about the intent of Congress in passing the bill, the really interesting exchange came when Justice Scalia and Justice Ginsburg talked about the potential 20 year sentence the statute contains. The Justice was very aware that federal judges have broad sentencing power and appellate courts have very limited review of that power if a judge sentences a defndant to a sentence that is contemplated by the statute.  So Scalia was worried about the exercise of prosecutorial discretion in this case to bring the complaint under Sarbanes Oxley (with its 20 year penalty) as opposed to other Federal criminal obstruction-of-justice statutes which usually have 5 year maximum penalties. The exchange forced the US Attorney arguing the case to reveal a dirty little secret of the government’s operation – in deciding to prosecute they are told to seek the statute that provides the greatest   penalty to the defendant. So first Scalia deflected the AUSA Roman Martinez’s argument that its Congress who decided to put 20 years onto the statute nothis office:

JUSTICE SCALIA:  No, 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 or risk sending him up for 20 years?
MR. MARTINEZ:  Your Honor, we did not ask for 20 years in this prosecution.  And let me try to explain . . .

That led to the following exchange between Justice Ginsburg  and Martinez:

JUSTICE GINSBURG:  You charged two offenses . . .  Is there any guidance that comes from  [The Department of] Justice to prosecutors?  I mean, the code is filled with overlapping offenses.  So here’s a case where the one  statute has a 5 ­year maximum, the other 20.  The one that has the 5­ year clearly covers the situation.
Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys  what to do when there are these overlapping statutes?

MR. MARTINEZ:  Your Honor, the ­­my  understanding of the U.S. Attorney’s Manual is that the
general guidance that’s given is that the prosecutor should charge ­ once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­ the offense that’s the most severe under the law.
That’s not a hard and fast rule, but that’s kind of thedefault principle.  In this case that was Section 1519.


So the government doesn’t choose the statute that most closely fits the crime – rather it chooses the staute that gives the defendnat the most exposure to jail time. That rightfully sent Scalia off in a tizzy:

JUSTICE SCALIA:  Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive those statutes are.  I mean, if you’re saying we’re always 9 going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

MR. MARTINEZ:  Your Honor, that’s ­­. . .

JUSTICE SCALIA:  Or ­­ or how much coverage I give to severe statutes.

The Court spent much of the balance of the argument mocking the government’s position that Sarbanes-Oxley was meant to cover such cases, asking about picking daisies in a National Park and then throwing them away as park ranger approaches for example. Justice Kennedy joked that perhaps the statute should be changed to the Sarbanes Oxley-Grouper Act.

While the Court showed clear distaste for the application of this langauge to these facts, criminal practitioners know that these types of cases are heard in courtrooms every day.  Prosecutors – especially Federal prosecutors- have incredible power to wield a 20 year count over a defendant’s head by charging them with obscure statutes never meant to cover the conduct alleged. That’s part of tye reaosn so many cases end inpeas. Credit goes to Mr. Yates for having the courage and tenacity to stare down a 20 year sentence and take his case to trial and all the way to SCOTUS. Hopefull the oral argument inthis case will shed some light on the Dept. of Justice’s misguided policy and have DOJ instead look to exercise its discretion to find the law that most closely fits the cirme.


Text of the full argument is here:



2 replies on “Fishy Case Makes SCOTUS Question Feds Prosecutions”

Scalia: “I’m going to be very careful about how severe I make statutes.”

Congress may not be busy making statutes but someone is.

As it turns out not that careful because — shock — Scalia voted for the more expansive reading which would have upheld the Yates conviction. Scalia was in the minority though and Yates won by one.

Kagen voting with the dissenters with the Dr. Seuss joke/cite. I wonder if Yates thought it was funny.

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