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The Fish and the Manual

Yates v. United States had oral arguments today before the Supreme Court. You’ll recall from our summary of the big cases for this Term that Yates is the case of a fisherman who, while at sea, was found by the game warden to have under-sized grouper in his hold, fish that went missing when the catch was inspected again at dock. He was accused of throwing the fish overboard and thus violating the Sarbanes-Oxley Act which according to the Assistant Solicitor General who presented the case to the Court today, forbids “the intentional destruction of ‘all types of physical evidence.'”

The applicable portion of the law is found at 18 U.S.C. § 1519 and reads:

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.

Now, you can read a transcript of the entire oral argument here, but I’d like to call your attention to 28:19-29:4 (start at page 28, line 19, end at page 29, line 4):

JUSTICE GINSBURG: Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys what to do when there are these overlapping statutes?

MR. MARTINEZ: Your Honor, the ­­ 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 ­­ 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. In this case that was Section 1519.

I recall that some time ago, we had some discussions about the prosecution of Aaron Swartz, mainly how awful it was that he was over-charged and threatened with the most terrible, severe, awful punishments the law could possibly bring to bear against him, and therefore how awful the prosecutors were that did this and drove a talented, promising young man to suicide.

Turns out, that was policy.

Anyway, both Justices Ginsburg and Scalia go on to ask Martinez, rather incredulously, whether anyone exercises any sort of prosecutorial discretion in a case like this (translated: “Do you people even think about what it is that you’re actually doing?”) and eventually ASG Martinez breaks down and admits that the penalty Yates faced, thirty days, was reasonable and that twenty years would not have been (translated: “Well, no, not right away, we just charge the max for whatever seems like it’s relevant and then we hope to plea it all out — but eventually we did the right thing!”).

Not a whole lot of discussion about whether the game warden should have squeezed the fishes’ tails, which was the defense at the trial court level. But it does sound like the Supremes are not particularly warm to the shape apparent under the blanket of the pleadings — Yates got charged with a bunch of extra crimes because he was a jerk, not because anyone actually thought he was guilty of what those laws were meant to get at.

 

Image credit: Wikimedia commons.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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17 thoughts on “The Fish and the Manual

  1. Sounds like somebody fished up.

    Working in an industry in which S-OX is invoked frequently (and being that the Act is targeted at bookkeeping shenanigans), I am darkly amused that it can be applied to grouper.

    #1. Aren’t there already “evidence tampering” / obstruction of justice type statutes they could have used?

    #2. They are only grouper. Wouldn’t it have made sense for the investigators to take possession of at least a few of the suspect fish immediately, rather than saying “meet us back on shore and we’ll clear this up there”? Pretty sure if they boarded a boat full of bales of white powder, they wouldn’t just let the boat make its own way back to shore, with the evidence aboard, unsupervised.

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      • The more I think about it, the more troubled I am by the idea that law enforcement can, without a court order, force me to store/convey, at my effort/expense, the very evidence it plans to nail me with. Doesn’t that run afoul of the right not to self-incriminate, or other due process concerns, as well as evidence-chain-of-custody requirements? Could they force me to rent a storage locker with a freezer to store the fish in, while they figure it out?

        I get that they want to avoid the destruction/tampering of evidence, but seems to me that the best way to do that is for the authorities to take custody of the evidence, not leave it in my hands and tell me I need to store it or carry it with me. That just seems dumb on a number of levels.

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      • Good point, glyph. And can the game warden really establish beyond reasonable doubt that the evidence was destroyed, given that there’s no evidence? All we have is his/her word, and while I know a lot of people treat police testimony like gold, there’s too much evidence of police lying under oath for me, at least, to ever accept their word at face value.

        I guess I’m not surprised that police seek the maximum possible charge. It’s a good enforcement strategy. But that’s where my libertarianism kicks in–I don’t think government should be in the business of maximum enforcement, period. I think there’s both an inherent illegitimacy about threatening penalties wildly disproportionate to the alleged crime, and there’s a hardening that occurs when government sees its role primarily as enforcer that makes it trend toward authoritarianism–or more precisely that makes the individuals within it trend toward authoritarianism, whether by a process of shaping their mental framework or by a process of self-selection for authoritarian personalities or both.

        I had a student once whose father was a county prosecutor. I met him a couple times, and really liked him. But both of them explicitly described defense attorneys as “the enemy,” and not exactly with a smile. Given that prosecutors push the boundaries of the Constitution, while defense attorneys rely on it and are sometimes our only protection against overzealous and abusive government, and I’m more inclined to see them as heroes, and prosecutors as the enemy of the public, for all that they claim to represent “the people.”

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      • “The more I think about it, the more troubled I am by the idea that law enforcement can, without a court order, force me to store/convey, at my effort/expense, the very evidence it plans to nail me with”

        I don’t know if it’s relevant, but the Coast Guard for instance, isn’t required to follow the 4th amendment when interdicting and searching vessels in US territorial waters. It may be that Fish and Wildlife has the same loophole for ‘environmental protection’ that the Coast Guard does (as long as no one is on land)

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  2. the prosecutor should charge the ­­ the offense that’s the most severe under the law.

    Isn’t this what the law sortamaybe demands? (As in, logically entails?) I get the notion of prosecutorial discretion and all, but it seems weird for a court to challenge a prosecutor for filing charges consistent with actual law, no? I mean, it’s not his fault that that law is on the books.

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      • I’m not sure, since I don’t know what my opinion about this actually is. Right now, I’m wondering why it is that members of the court are challenging Martinez for failing to use some other barometer than *the law* when charging someone with a crime. What standard would they prefer him to use?

        On the other hand, I think it highlights something Jason K brought up not too long ago regarding the scope of laws on the books and how violations of them aren’t actively challenged anymore.

        On the third hand, it seems to me that “the proper administration of the law” (which is the definition of “justice” I found online) or even “the fair and equitable treatment of all individuals under the law” (found in same) ought to be codified atleast to such an extent that Supreme COurt Justices don’t have to resort to questioning whether a prosecutor ever exercises discretion when filing charges.

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      • But on the fourth hand, the concept of proportionality — IOW, that the degree of the punishment should match the severity of the crime — is inherently not codifiable.

        And on the fifth hand “the law” includes, but does not consist entirely of, what Congress passes as legislation. To follow “the law” requires cognizance of more than statutes.

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      • What bothered me is the difficulty of counting 70 or so undersize fish accurately. Not only can measurement screw up (the tape measure slipped), but you could easily count the same fish twice because they slide around and all look about alike to us. I would have my doubts as to whether a person could repeat the exact count twice in a row while in a hold on a boat at sea. I’d favor regarding the initial count as a tentative measure, to be confirmed ashore, instead of taking the trivial discrepancy as evidence of misdeeds of the highest order.

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  3. “[I]t does sound like the Supremes are not particularly warm to the shape apparent under the blanket of the pleadings — Yates got charged with a bunch of extra crimes because he was a jerk, not because anyone actually thought he was guilty of what those laws were meant to get at.”

    But then why didn’t they hear Jones v. United States?

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