Making a federal case out of fishy facts: In Plain English

In 2002, Congress passed the Sarbanes-Oxley Act in the wake of the collapse of Enron Corporation, once the worlds largest energy trader. One provision was a response to revelations that Enron and its accountants had destroyed thousands of documents, computer hard drives, and emails that might have shed light on the company and its finances. The law makes it a crime to knowingly . . . destroy[] any record, document, or tangible object with the intent to impede, obstruct, or influence a federal investigation, even if such an investigation has not yet been officially initiated. Tomorrow the Supreme Court will consider exactly how broadly the law sweeps is it a crime even when the thing that was destroyed was a fish? Lets talk about Yates v. United States in Plain English.

John Yates is a commercial fisherman. In 2007, he was fishing off the coast of Florida when state fish and wildlife officers helping to enforce federal rules boarded his boat. They looked at his catch of over three thousand fish, determined that seventy-two red grouper were too small, and issued Yates a state civil citation. However, when Yates returned to port and officials inspected his catch again, they found only sixty-nine (instead of seventy-two) undersized fish; one of Yatess crew members told federal officials that Yates had instructed them to throw the smaller fish overboard and replace them with bigger fish.

Three years later, Yates was charged with violating the Sarbanes-Oxley Act by destroying the undersized fish to impede, obstruct, and influence the investigation and proper administration of the catching of undersized red grouper. He was convicted and sentenced to thirty days in prison, followed by three years of supervised release. A federal appeals court upheld his conviction, and in late March of this year the Supreme Court agreed to review his case.

The basic issue in the case is how courts should interpret the Sarbanes-Oxley Acts prohibition on destroying a tangible object. Yates concedes that, standing by itself, the phrase tangible object could apply to fish. But he argues that courts shouldnt interpret laws in isolation and should instead look at the broader context of the law. Here, because the phrase tangible object appears in the statute with the terms record and document, it should be interpreted as referring to something used to preserve information, such as a computer or a server. Elsewhere in the statute, Yates, Congresss use of the phrase makes a false entry in before the phrase record, document, or tangible object makes it even clearer that his reading is the correct one: after all, you cant make[] a false entry in a fish. His interpretation of tangible object, he told the Court, would also avoid the constitutional problem that can arise when a statute is so vague that it doesnt provide fair notice of the kind of conduct that will violate the law.

Although Yatess reasoning appears strong, the federal governments arguments are also compelling. They revolve around the phrase tangible object which, it says, is not limited to things like computers and servers, but instead includes all kinds of physical evidence. It is also significant, the government asserts, that when similar phrases have been used in other contexts, such as in the federal law that punishes tampering with witnesses, they have always been understood to cover all physical evidence. And, the government continues, if it is clear that the phrase tangible object refers to any physical evidence that might be relevant to a federal investigation, many of Yatess arguments fall by the wayside: it doesnt matter, for example, that the phrase appears in a group with the words record and document, or that the law was enacted in response to the Enron collapse. The government highlights what it regards as an inconsistency in Yatess case: if the Court were to agree with him, the law would bar a murderer from destroying his victims diary, but not the murder weapon. Congress, the government emphasizes, surely did not intend such an illogical result.

Beyond the basic question of how to interpret the Sarbanes-Oxley Act, tomorrows oral argument may also raise the broader issue of overcriminalization whether (among other things) federal law is being used to prosecute conduct that should really be the responsibility of the states, and whether criminal laws are being used to target conduct that should be addressed (if at all) through civil laws and regulations. Those concerns may have been partly responsible for last Terms decision in Bond v. United States, in which six Justices agreed that the federal ban on chemical weapons does not apply to a Pennsylvania woman who attempted (with little success) to poison her husbands mistress. The federal governments case may be stronger than it was in Bond last Term, but the oral argument may tell us more about whether the Court thinks it is strong enough for Yatess conviction to stand. Well be back to report on it in Plain English.