Today in Supreme Court History: August 23, 2007

8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a "record."

The Roberts Court (2010-2016)

Comments

[Dan Schiavetta]

Actually the Court held that the fish were not a “tangible object”.

Lopez v. United States, 404 U.S. 1213 (decided August 23, 1971): Douglas orders draft resister released on his own recognizance; defendant claimed he had not been allowed to assert conscientious objector status after induction date but was now allowed to under Elbert v. United States, 492 U.S. 99; Ninth Circuit then remanded for reconsideration on issue of whether his belief as to not being able to assert status was in good faith, 452 F.2d 1311

Jimenez v. U.S. District Ct., S.D. Fla., 84 S.Ct. 14 (decided August 23, 1963): Goldberg denies stay of extradition sought by ex-dictator of Venezuela who had argued that 18 U.SC. 3188 requires him to be freed if more than two months had passed since he was “committed for rendition”; Goldberg “assumes” Venezuela will honor its promise to guard Jimenez’s personal safety (in fact it did; he was in jail for five years before trial and sentenced to time served, exiled to Spain, later returned to Venezuela but was disqualified from running for that country’s senate)

[Michael P]

fish were not a “tangible object”.

In the immortal words of Stanley Kirk Burrell to describe the challenges inherent in dealing with the fish caught by John Yates and his crew, “U can’t touch this.”

What Notorious RBG actually wrote for the Supreme Court:

Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.

[Dan Schiavetta]

Money is not tangible. Fish are.

[Brett Bellmore]

Sure, but it's not "a tangible object", it's "A tangible object captured by §1519".

They didn't rule that fish weren't tangible, they ruled that they weren't the sort of tangible objects the law applied to.

[Bob from Ohio]

The statute says "false entry in any record, document, or tangible object”

In what universe is throwing a fish overboard a "false entry"?

[Sarcastr0]

In a functional, not formal one.

[Bob from Ohio]

"not formal one."

Its a criminal law, it has to be "formal"

Good thing you gave up law.

[Sarcastr0]

In understanding the meaning of ambiguous statutory terms, functional reasoning is not forbidden because it’s a criminal case.

I think you may mean intent or purpose of the full text?

Oh, looks like you're getting bodied down below. Maybe don't come in so hot.

[Bob from Ohio]

"Maybe don’t come in so hot."
No fun in that.

[Riva]

Uh huh. Some might say ambiguous criminal statutes are themselves not particularly desirable. If a criminal statute is ambiguous, it must be construed in favor of the defendant. Where did you go to law school, the Jack Smith School of Law?

[jb]

Hey, Riva and I agree on something (in theory, at least)!

The rule of lenity should indeed be how criminal statutes are interpreted, but in practice it almost never seems to happen.

[Noscitur a sociis]

Suppose that Congress did in fact want to enact an evidence tampering statute that would have covered the conduct charged in Yates (as every state evidence tampering statute I'm familiar with would). How should they have written the statute to remove the ambiguity that you're perceiving?

[Sarcastr0]

Yates was charged with section 1519, which makes it a crime to knowingly alter, destroy, mutilate, conceal, cover up, falsify, or make a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence a federal investigation. So, you can see a certain amount of overlap in the language and intent we're talking about. And long story short, Yates caught some fish. The fish were too short, too small, violated federal law. He was caught, but then he destroyed the fish. He threw the fish overboard, destroyed the evidence. The question for that case was, “Is a fish a tangible object?” Five Justices said, “No, not consensus on the reasoning.”

There was a four Justice plurality written by Justice Ginsburg, joined by the Chief Justice Breyer and Justice Sotomayor, that basically tried to say, “Tangible object has to be like a document, something that records or preserves information.” And then Justice Alito wrote an opinion that was the same, but also vaguer and seemingly designed to prevent the majority opinion, there being a majority opinion that people could rely on in future cases. And I thought that it was not his strongest work. And then a very effective dissent by Justice Kagan, who says, “A tangible object is a tangible object,” and fish is a tangible object.

Will: A fish is an object, and you can hold it. That's how they threw it overboard. It's tangible.
Dan: Seems pretty tangible.
Will: Yeah.

[Sarcastr0]

Moderation is eating all my responses; sorry for the choppiness and lack of a link.

[Sarcastr0]

Will: The reason I hate the case is I personally resent it for the fact that when I first heard about the case and saw the cert petition, I thought, “Oh, wow, this is outrageous, practical overreach. The court's going to step in and stop it.”

Will: And then what I hate about it is that I was sold too hard, that when I focused on it, I realized that the Justices, like, I had been hoodwinked, and a fish is a tangible object.

Dan: But five of them stayed hoodwinked, or at least willfully hoodwinked themselves.

Will: If they figured it out before it was too late, I wouldn't be mad at them.

Dan: Yeah. So, interesting one. I taught that one every year when I was teaching 1L criminal law before I moved over to con law, so I could have the privilege and joy of using your casebook. And the students like that one a lot, I think, because it is this battle between what the statute actually says and then underlying concerns about overcriminalization. A friend of the show, Richard Ray, has a great blog post from a number of years ago called something like Yates and the ghost of Bill Stuntz, where he talks about Justice Kagan's dissent, where she calls out what the majority is doing for their concern about larger pathologies within federal criminal law but that are not squarely presented by the statute. So, check that out. But that's all by way of background to this case.

That was in 2015. Court's membership has somewhat changed. Some Justices still in the court, some Justices from that case not on the court, but that's very much in the background.

[JoeFromtheBronx]

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.

Perhaps the full text is more helpful.

(The Yates opinion has an interesting split. The dissent was by Justice Kagan, with whom Justice Scalia, Justice Kennedy, and Justice Thomas joined.)

[Noscitur a sociis]

Are there perhaps some other words in the statute before the start of your quotation that could be relevant?

[JoeFromtheBronx]

Like what?

The title, which Kagan argues won’t settle the question?

“18 U.S. Code § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy”

I quoted the statutory text. A title only goes so far. For instance, more than "records" are involved.

https://www.law.cornell.edu/uscode/text/18/1519

[Noscitur a sociis]

I was replying to Bob from Ohio (and making more or less the same point you did, your comment wasn’t loaded when I posted), not you.

[bernard11]

Then what is this five dollar bill I'm holding in my hand, if not money?

Some money is intangible. Some is tangible.

[Mr. Bumble]

What you have left after taxes?

[Aoidized]

The reactions to Harris' speech demonstrates exactly why universal franchise is a bad idea. Most people have no idea about policy and don't think critically. They vote based on whether someone seems like a nice person or a good speaker. That's how you end up with hustlers like Obama in office.

[ReaderY]

In short, people who don’t agree with you shouldn’t be allowed to vote.

At least you’re being honest about the current Republican Party’s main platform.

Your belief in your competence, let alone superiority to others, is like most of your type greatly exaggerated. In fact, that’s pretty much been MY platform these last few decades commenting on this blog. There are plenty of people like you on the left as well as the right.

As Socrates put it millenia ago, realizing that one doesn’t know is the first step to acquiring knowledge. Many have too much self-confidence to be able to take that first step.

[Aoidized]

Not at all. Plenty of legitimate people disagree with me. But low information types who are susceptible to emotional platitudes should not be allowed to vote.

[SRG2]

By definition, anyone who thinks the 2020 election was stolen is a low-information voter.

[Krychek_2]

I may regret having asked this, but how, and by whom, would it be determined who is a low information type susceptible to emotional platitudes? To me, that describes most Trump supporters.

[Aoidized]

For one, all women are susceptible to emotional platitudes. Anyone with an IQ under 95, which is nearly all blacks.

It's not hard to come up with a list of reasonable criteria.

[Dan Schiavetta]

Muted.

[Mr. Bumble]

Another one bites the dust.

[jb]

Turns out that's actually how you get Trump in office:

https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/07/low-information-voters-are-a-crucial-part-of-trumps-support/

[Aoidized]

What do you consider people who vote for Democrats for free sail phones?

[jb]

Anecdotes

[Krychek_2]

And as we all know, the plural of anecdote is not data.

But more to the point, why should I take seriously someone who can't even spell a simple word like "cell"?

[JoeFromtheBronx]

Ruth Marcus in her op-ed “Justice Gorsuch’s book of fish tales,” argues that the Yates case — and Gorsuch’s selective citation of facts [huh; shocking from the prayer coach opinion author] is a telltale example of the approach of his new book.

https://www.washingtonpost.com/opinions/2024/08/22/justice-gorsuch-book-incomplete-facts/

He was “disqualified from running for that country’s senate” … ah, other nations have such quaint laws regarding such things.

[David Nieporent]

I haven't read Gorsuch's book, but Marcus's column makes little sense. "Look at this overcriminalization" is not rebutted by saying, "Actually, they were guilty."

[JoeFromtheBronx]

She doesn't say that it is rebutted for that reason.

She doesn't say overcriminalization is not a thing. She grants it very well might be. She notes at one point regarding Yates:

You might know that information and still think the government overreached in making a federal case out of this.

She is arguing that when he makes his case, he is too selective on the details. He is too simplistic in promoting his frame.

And, yes, I think that is a problem with the guy, even sometimes when I agree or am sympathetic, to his point of view.

As she says early on:

My beef in this column is not with Gorsuch’s more libertarian worldview. It’s with the license he takes in making his case about the “human toll.”

[David Nieporent]

But nobody claimed the defendant hadn't thrown the fishvidence overboard. (I mean, I'm sure someone did, but that wasn’t the point in dispute.) So how does saying, "Actually, he did do that" undermine the claim about the "human toll"?

[Noscitur a sociis]

(I mean, I’m sure someone did, but that wasn’t the point in dispute.)

Someone is claiming that in these very comments!

[Noscitur a sociis]

Edit: And to be clear, denying that he had thrown the fish overboard was a key part of his defense at trial.

[Noscitur a sociis]

Gorsuch's point* is that Yates's conduct is so obviously innocuous that the fact that anyone would even think about prosecuting him is a sign of something gone seriously wrong. Marcus's point, in turn, is that Gorsuch is tendentiously minimizing Yates's actual conduct, and that knowing what he really did makes the response (a prosecution, conviction, and modest jail sentence) seem quite reasonable.

*As described by Marcus; I haven't read the book but it seems right based on the quotations she provides, my understanding of the book's theme, and the kind of thing Gorsuch typically says.

[ducksalad]

Driver is waiting in long line to enter US at border. K-9 officers walk up and down the line of cars. Dog alerts, officer looks into back seat, finds that cause of alert is some Mexican chorizo. Officer tells driver that uncured meat products can’t be brought into US; moves on to next car. Driver tosses chorizo over the bridge railing into the river. When he makes it to the actual inspection point, they ask what happened to the chorizo.

What is the best spin here:

(a) Driver was trying to bring himself into compliance with the law.
(b) Driver was engaged in an international conspiracy violate the Sarbanes-Oxley Act.

[Brett Bellmore]

Under current law, he could have just eaten it... This actually came up on my flight home from the Philippines; You can board the plane with foodstuffs that are unimportable, so long as you eat them before landing.

[NvEric]

Exactly. I came to a CA ag inspection stop. Had some apples. They would seize the apples or I could eat them all right there. No crime in attempting to import banned produce even though I may have know they might impound them.

Now the fish case might be a little different, but maybe not. There was no destruction of evidence. The under sized items were returned to nature. The initial contact off-shore should have done that. To then bother the court system with a spurious and trivial case based solely on an inappropriate statute is the real crime .

Using §1519, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy", is overreach.

The differences between the fish and my apples is only in scope and intent.

[Noscitur a sociis]

There was no destruction of evidence. The under sized items were returned to nature.

"I didn't destroy the evidence, I just put it on the bottom of the ocean!" doesn't strike me as a very compelling defense. Especially not in the case of a statute that also prohibits concealing and covering up evidence, not merely destroying it.

[Michael P]

You can also leave unimportable food items on the plane. Or declare them at the customs point, but that is by far the most hassle.

[OFFTHEHOOKCORTEZ]

The facts are: no fish were not thrown over board and replaced. The fish were measured once from the ice holds and second in a thawing. In addition the state officer measured by state law not federal law. (Commercial fishing is under federal law). State rule ..Tip of snout to tip of tale vs. mouth open or closed ....grouper has an underbite with the bottom lip extension.

NOAA 's own leader, Dale Jones destroyed 80% of his files while being investigated by attorney general...can you say violation of Sarbanes-Oxley.

Their allegation...replaced 72 short fish with 69 new short fish....that's about the dumbest thing I have ever heard. The ticket was written...that's like throwing your car away after a speeding ticket.