Phishing for Crime: A Tale of Why People Resent the Feds

Yates v. United States, in which the Court granted certiorari yesterday, is a tale of the irresponsible application of federal criminal law.  Jonathan Adler, at the Volokh Conspiracy, has a good summary.  To recap briefly, 18 USC 1519 makes it a crime for anyone who “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 or obstruct an investigation."  This was added in Sarbanes-Oxley, pretty clearly in reaction to the shredding of documents in connection with the Enron scandal and other accounting frauds.  Indeed, the section is often termed the "anti-shredding" section.  But the feds have chosen to apply it to commercial fisherman John Yates' destruction of three allegedly undersized red grouper.  A federal official boarded Yates's boat, inspected his catch of some 3000 fish, declared 72 of them as illegally caught because they were undersize, and ordered him to return to port with the 72 contraband piscine.  He did so, but on the way he tossed three grouper over the side. (Aside: Yates contends that the fish were not accurately measured and none of them were undersize.) Then he was charged and convicted of violating section 1519, which carries a maximum penalty of 20 years imprisonment.  Yates's claim on appeal is that he did not have fair notice that, in the context of this statute, a fish is a tangible object. 

Broadly speaking, there are two philosophies of statutory interpretation -- text, or what used to be called plain meaning, and legislative intent. Under either approach Yates should prevail.  Indeed, the government should never have brought these charges.  If plain meaning applies, there are two venerable maxims of construction that apply with especial force in the criminal context, where penal statutes are to be strictly construed.  Ejusdem generis is the principle that where specific items are mentioned and then a general reference is made to them, the general reference only includes things akin to the specific items.  Noscitur a sociis is the principle that an ambiguous word is to be interpreted in light of the words that are associated with it.  The statute does not define "tangible object" and its inclusion in a series of "any record, document, or tangible object" implicates each of ejusdem generis and noscitur a sociis. Tangible object, in this context, is a general reference to such things as records or documents.  An example would be tossing the memory stick into the shredder; it's a tangible object that records data.  The noscitur canon simply reinforces that conclusion.  The tangible objects with which 1519 is concerned do not extend to fish, which in no sense are records or documents.  They may be evidence of wrongdoing, but if Congress wanted to sweep that broadly it could have substituted the phrase "in or with respect to any evidence or potential evidence of illegal activity."  But it didn't.  Congress should justifiably be hoist by its own petard.

If legislative intent is your preference, it should be even more obvious that Sarbanes-Oxley in its entirety, and section 1519 in particular, was intended to criminalize the knowing destruction of records of financial misconduct.  To extend it to tossing fish, even illegally caught ones, over the side is a mockery of the legislative intention. 

It is overreaching of this sort that inspires cynical mistrust of government.   

Here is Yates's own story.  Here is another post (before the Court's grant of cert) by Ellen Podgor.  Here is ABC News' take.  Also, the Chicago Tribune's coverage is here.

Comments

[anon]

Calvin:
One cannot be hung by a petard!
As for the interpretation, did anyone consider that it would be difficult to make a false entry in a fish?

[Calvin Massey]

Anon is correct. One is hoist by one's petard.

[anon]

If you are going to mention the maximum penalty, fairness dictates you mention Yates got 30 days.

[Calvin Massey]

Anon: Yates got 30 days, mandated DNA testing, supervised probation, and the loss of his livelihood. And there's nothing to prevent the next judge from sentencing a future Yates to the maximum of 20 years.