Readings — From the January 2015 issue

Tort Fishing in America

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From the November 2014 Supreme Court oral argument in Yates v. United States. In 2007, a Florida Fish and Wildlife officer found seventy-two undersize red grouper on John L. Yates’s commercial-fishing vessel. After being ordered back to port, Yates threw three of the illegal fish overboard. He was convicted under Section 1519 of the Sarbanes–Oxley Act, which prohibits the destruction of “any record, document or tangible object” to obstruct an investigation, and was given a thirty-day jail sentence. John L. Badalamenti was a lawyer for Yates, Roman Martinez for the government.

justice ginsburg: How do you respond to the illustration the government gave — that you can be indicted under 1519 if you destroy a letter the victim you murdered has sent you, but you can’t be indicted if you destroy the murder weapon?

badalamenti: Congress did not intend 1519 to be applied in that situation.

justice roberts: What if the knife had the defendant’s name on it? Is that destroying a record?

badalamenti: It is not. One would not refer to an inscription of one’s name as a permanent account of an event. It’s just an identification.

justice breyer: And what is your view, given what you’ve said, of the best way to narrow this statute?

badalamenti: Perhaps to accept our position that it relates specifically to business record keeping.

ginsburg: Isn’t a fishing vessel a business?

badalamenti: It would be, Your Honor, it would be.

justice kennedy: Suppose the fisherman took pictures of the fish, and then he destroyed both the pictures and the fish. Liability?

badalamenti: A picture? It is a permanent account of an event. But it wouldn’t be a tangible object because it’s not a device designed to preserve the information.

kennedy: The photograph isn’t?

badalamenti: If it were stored on a memory card, that would be a tangible object.

kennedy: It seems very strange that you can throw away the fish, but you can’t throw away the picture.

justice scalia: Is there any other provision of federal law that has a lesser penalty that could have been applied to this? What kind of a mad prosecutor would try to send this guy up for twenty years?

martinez: Your Honor, we did not ask for twenty years. Just to emphasize what happened here: Mr. Yates was given an explicit instruction by a law-enforcement officer to preserve evidence of his violation of federal law. He directly disobeyed that. He then launched a convoluted scheme to cover up the fact that he had destroyed the evidence and enlisted other people, including his crew members, in executing that scheme and lying about it. And then —

roberts: You make him sound like a mob boss or something. [Laughter.] The fish were — How many inches short of permitted were the fish?

martinez: It varied fish by fish, Your Honor. But the prosecution in this case was not about the size of the fish, and I think it would be very strange if this Court were to say that the law is applied differently when the offense is trivial.

roberts: But if I understand your answer to Justice Scalia, any case in which someone destroys a tangible object, you should prosecute them under this statute?

martinez: We would not prosecute every fish-disposal case, and we do not.

roberts: But the point is that you could.

martinez: Your Honor, the issue in this case is specifically whether a fish counts as a tangible object. Their whole point has been that it’s impossible to imagine that Congress could have wanted Sarbanes–Oxley, an Enron-related statute, to prohibit the destruction of fish, and yet that’s the point we all agree on here today. If you stop someone on the street and ask them, “Is a fish a tangible object?” the answer would almost certainly be yes.

roberts: Well, what if you said, “Is a fish a record, document, or tangible object?”

scalia: I don’t think you would get a polite answer to either of those questions.

justice alito: Mr. Martinez, you are really asking the Court to swallow something pretty hard. What if it was one fish? One undersize fish?

martinez: We only have to charge if the person — with knowledge and intent — deliberately takes that one fish and throws it overboard to escape liability. That’s what the statute says.

kennedy: Perhaps Congress should have called this the Sarbanes–Oxley–Grouper Act.

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