United States v. Yates

A fishy Case of OVER-CRIMINALIZATION

In 2007, John Yates was on the hunt for red grouper off of the coast of Cortez, Fla. His boat was boarded by John Jones, a state Fish and Wildlife officer who, at the time, was working on behalf of the National Oceanic and Atmospheric Administration..

Jones was suspicious that the fisherman were catching and keeping fish smaller than the 20-inch minimum. He was right: Seventy-two grouper in the hold were undersized and therefore a violation of federal law. That’s seventy-two fish out of more than 3,000 fish in the hold. Yates, the captain of the boat  was issued a civil citation from the states and ordered to return to port the next day., When officials more closely inspected the entire catch, they found that sixty-nine of the fish – not seventy-two– were undersized.

Ostensibly pissed off at the flagrant actions of Yates who presumably threw three oversized fish off of the boat, the federal government charged Yates with the destruction of evidence i.e. three fish. A prosecutor, paid by the federal government, elected to utilize his broad prosecutorial powers to prosecute the destruction of three fish. Yates was arrested at his home and blacklisted by boat owners in his community. Regardless of the outcome, he lost his ability to earn a living.

The Sarbanes-Oxly Act

This may seem strange but it gets stranger. Yates was charged with violating the Sarbanes-Oxley Act, which was passed after the Enron scandal and sought, among other things, the preservation of evidence during a criminal investigation. The Sarbanes-Oxley Act makes it a crime to destroy, alter or cover up “any record, document, or tangible object with the intent to…impede or obstruct” the investigation of “any matter within federal jurisdiction”. The court ultimately determined that the Government overreached by deploying a financial fraud law against a commercial fisherman. The court interpreted the phrase in the statute “tangible” in a way that does not include fish, and more specifically undersized grouper because fish are not generally used to record or preserve information.

But, Congress had bigger fish to fry: Congress was concerned about document-shredding parties and bonfires filled with  sensitive federal documents in large financial fraud investigations – not the destruction of three fish.

Yates was convicted by a federal jury of twelve members who were all but forced to convict him because of the Government’s interpretation of the law and the trial court judge’s ratification of it. Yates appealed all the way to the Supreme Court. This means that this case passed the laugh test and didn’t seem fishy to a federal prosecutor, a federal district court judge, a federal appeals court, and the entire panel of the 11th Circuit. It now rested in the hands of the most powerful court in the land.

The court reversed the conviction determining that a fish is not a tangible object. Justice Kagan dissented and argued that a tangible object is “of course a discrete thing that possesses a physical form” and therefore a fish should be considered a tangible object. Support for this assertion was the popular children’s short story One Fish Two Fish Red Fish Blue Fish (1960). I’m not kidding, you can read the opinion yourself: Yates v. United States, 574 U.S. 528 (2015).

The tragedy in this case is that the “anti-shredding provision” of Sarbanes-Oxley Act carries a maximum term in jail of 20 years. Meaning that, according to the Government, Congress believed that Mr. Yates could serve 20 years in prison for throwing three undersized fish overboard. Mr. Yates, sitting in handcuffs, carried out of his house, heard the maximum punishment during arraignment as 20 years. Thankfully he elected to go to trial with such a weight over his head and proceed all the way to the supreme court.

But what if he didn’t? What if his case died on the line like so many others? Imagine he had elected to take after those who take their lashings instead of trying their chances against the power of the federal government?

Scalia Speaks out on over-CRIMINALIZATION

Mr. Yates is a hero whose case allowed the Supreme Court, led by Antonin Scalia to this powerful exchange:

Justice Scalia: What kind of mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?

Martinez: Your Honor, we did not ask for 20 years in this prosecution.

Justice Ginsburg: But you did- you did – you charge—

Justice Kennedy: What did you ask for?

Justice Ginsburg: You charged two offenses: […] and Yates is not questioning the applicability of that. IS there any guidance that comes from 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 and the other, twenty. 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 thee overlapping statutes?

Martinez: Your honor, 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 offense that’s the most severe under the law. That’s not a hard and fast rule but that’s kind of the default principle.

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 statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

            Scalia’s words were a warning to the Justice Department: Make more reasonable decisions about how you seek justice, or I’ll do it for you. By that he meant that he will do it by narrowly construing federal statutes and congressional intent and limiting the expansive authority of the U.S. Government to use financial fraud anti-shredding statutes against a fisherman who destroys three fish.

            Justice Roberts hit the proverbial nail on the head in his next statement: “But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you, you’re facing 20 years, so why don’t you plead to a year, or something like that. It's an extraordinary leverage that the broadest interpretation of this statute would give federal prosecutors.

            The point that Roberts was making is that there are several obstructions of justice statutes that existed before the Sarbanes-Oxly act. But only one criminalized obstruction of a civil offense which was under Section 1519. Instead of applying the statue on the books that applied the Conduct, and just as in the bond case, the prosecutor elected to expand the interpretation of an unrelated statue – clearly outside congressional intent – and apply it to conduct with no logical relationship with the conduct to be regulated.

            This is the essence of overcriminalization. This is how it plays out in our system and how prosecutors can wield their power well outside the express intention of congress, blurring the sacred separation of powers that keeps our system of government working and protecting the people from the overwhelming power of the Government.