Are Fish Tangible Objects?

By: Louis Forristall

             On November 5, 2014, the U.S. Supreme Court heard oral arguments for Yates v. United States that focused on this seemingly absurd question, and the outcome could impact much more than fish. The statute at issue was passed as part of the Sarbanes-Oxley Act. The Act provides a ban on paper shredding, and was passed in response to Enron executives’ alleged destruction of documents to hide evidence. The Supreme Court’s decision in Yates could impact the handling of records, documents and any other object that could be potentially relevant to a federal investigation. Despite concerns from Court, the statute’s potentially broad applications are restrained by statutory and institutional limitations, and can also be significantly reduced with proactive steps from businesses.

 

            The appellant, John L. Yates, was a captain of Miss Katie, a shipping vessel operating off the coast of Florida.[1] On August 23, 2007, the Miss Katie was boarded by a field officer of the Florida Fish and Wildlife Conservation Commission who was empowered to enforce federal laws.[2] While on board, the officer found three red grouper fish that measured under the 20 inch minimum size for taking that species.[3] Yates and his crew were instructed to return to port, and not to disturb the catch.[4] On the way, Yates instructed the crew to throw seventy-two undersized fish overboard, and replace them with red grouper of legal size.[5]

            At trial, the Department of Justice charged Yates with violations of 18 U.S.C. §§ 2232(a) and 1519, the latter being the Sarbanes-Oxley Act’s anti-shredding provision.[6] § 1519 provides a ban on destroying “any record, document, or tangible object… with the intent to obstruct an investigation… within the jurisdiction of any department or agency of the United States.”[7] Yates was convicted by a jury on both charges, and sentenced to thirty days imprisonment followed by 36 months’ supervised release. [8]

            Yates appealed the conviction on the grounds that the term “tangible object” as used in §1519 only applies to “records, documents, or tangible items that relate to recordkeeping,” not fish.[9] The Eleventh Circuit disagreed, holding that “tangible object” should be given its “ordinary or natural meaning.”[10] “Tangible object” can be plainly defined as an object “having or possessing physical form.”[11] The court then held that plain meaning to apply to fish. At no point did the court’s opinion mention that the law was passed as part of the Sarbanes-Oxley Act, or the history surrounding that act, because the presence of a plain definition rendered contextual analysis and legislative history irrelevant.

            Before the Supreme Court, Yates argued that “the ‘natural’ and ‘sensible’ meaning of the phrase ‘tangible object’ includes only items used to preserve information.”[12] Yates also focused on concerns that the Eleventh Circuit and the Government’s interpretation of “tangible object” could result in broad applications of the law.[13] Led by Justice Scalia, the Court expressed concerns in their questioning of the government’s representative that its interpretation could lead to lengthy prison sentences for very minor violations.[14] Justice Breyer went as far as to propose a hypothetical where someone is charged with a violation of the act for picking a wildflower.[15]

            Regardless of the interpretation adopted by the Court, the case’s outcome has major implications for recordkeeping in general. One concern expressed at oral argument is that the government’s proposed interpretation would create major uncertainties for businesses and individuals as to whether the government could bring charges whenever someone destroys a tangible object.[16] This concern is significantly limited requisite mental state of the statute. In order to violate the act, offender must have the “intent to impede, obstruct, or influence the investigation” of any agency of the United States. Questions of intent are determined “by the sufficiency of the evidence against” the defendant.[17] Therefore innocent or even negligent destruction of documents or tangible documents does not violate § 1519. [18]

            Chief Justice Roberts also expressed concerns that the government’s interpretation would provide them with “extraordinary leverage” when seeking guilty pleas. [19]Justice Breyer added that if the government “can’t draw a line, there is a risk of arbitrary or discriminatory enforcement” of the statute.[20] Justice Breyer’s comment was directed at the government’s inability to point to a Department of Justice policy detailing how U.S. Attorneys should use § 1519. The Court’s concerns that the law could be applied in arbitrary or discriminatory manners is mitigated by the reasonableness of factfinders at trial. Judges and juries are able to take these concerns into account, and will be unlikely to convict defendants charged with excessively minor offenses under the Act.Even if the narrow interpretation proposed by Yates is adopted, which would limit § 1519 to items used to preserve information, the danger of lengthy prison sentences for trivial acts would still exists. All Yates’s interpretation would do is limit the type of acts the laws applies to.[21]

            Ultimately the Court must decide between Yates’s narrow interpretation that could lead to “odd” results, and the government’s potentially over-broad interpretation that could lead to arbitrary enforcement of the law. The Court adopt the government’s interpretation because the plain language of the statute is clear.The drafting of the statute clearly shows that Congress meant for the Act to have a broad application. As the Eleventh Circuit held, based on the plain meaning of § 1519 “tangible object” “unambiguously applies to fish.” [22] When the meaning of statutory language is clear, the court must “enforce plain and unambiguous statutory language according to its terms.” [23] Most importantly, courts must adopt this interpretation of the statute when possible regardless of some policy of Congress, or considerations of injustice or inconvenience arising from the statute, [24] making most of Yates’s and the Court’s concerns expressed at oral argument irrelevant.

            Although the Court’s concerns should not influence their reading of the plain language of the statute, some of their concerns about the scope of their potential ruling are legitimate.Through their drafting of the Sarbanes-Oxley Act, Congress delegated broad powers to federal agencies in order to avoid interference with investigations, like the investigation at issue in Yates. Although the Court’s concerns regarding an overbroad interpretation could eventually prove legitimate, that is an issue that should be addressed by Congress, not the Court. In the meantime, the potentially broad applications of the Sarbanes-Oxley Act feared by the Court can be easily reduced by businesses. Liability under the statute can be avoided if companies adopt document retention policies and standard policies for discarding tangible objects. Additionally, companies should implement policies to suspend deletion of documents when a possibility of investigation arises. The use of these standard policies would help to persuade judges that there was no intent to impede a federal investigation in the deletion of documents or objects.

 


[1]United States v. Yates, 733 F.3d 1059, 1061 (11th Cir. 2013) cert. granted in part, 134 S. Ct. 1935, 188 L. Ed. 2d 959 (2014).

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 1062.

[6] Id.

[7] 18 U.S.C. § 1519.

[8] Yates, 733 F. 3d at 1063

[9]Id. at 1064.

[10] Id.

[11] Black’s Law Dictionary 1592 (9th Ed. 2009).

[12] Amy Howe, Justices Take the Measure of Fish Case: In Plain English, SCOTUS Blog (November 5, 2014), http://www.scotusblog.com/2014/11/justices-take-the-measure-of-fish-case-in-plain-english/.

[13] Id.

[14] Id.

[15] Id.

[16] Lyle Denniston, Argument Analysis: Building to a Scalia Crescendo, SCOTUS Blog (November 5, 2014), http://www.scotusblog.com/2014/11/argument-analysis-building-to-a-scalia-crescendo/.

[17] 40 No. 23 The Lawyer’s Brief 2 (West).                                      

[18]6 No. 8 Wallstreetlawyer.com: Sec. Elec. Age 15 (Westlaw).

[19] Amy Howe, Justices Take the Measure of Fish Case: In Plain English, SCOTUS Blog (November 5, 2014), http://www.scotusblog.com/2014/11/justices-take-the-measure-of-fish-case-in-plain-english/.

[20] Id.

[21] Lyle Denniston, Argument Preview: Can Plain Language be Vague?, SCOTUS Blog (November 4, 2014), http://www.scotusblog.com/2014/11/argument-preview-can-plain-language-be-vague/.

[22] Yates, 733 F. 3d at 1064.

[23]Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S. Ct. 2149, 2156, 176 L. Ed. 2d 998 (2010).

[24] Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 18, 15 S. Ct. 508, 509, 39 L. Ed. 601 (1895).

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