Supreme Court Asks If A Fish Is Always A Fish Or Sometimes A Computer Hard Drive

February 26, 2015

Sometimes a cigar is a cigar. Sometimes a fish is a fish -- or a grouper. Sometimes, however, federal prosecutors would have you believe that a fish is a digital drive on which evidence is written and archived and .  . . well, you know how the Law can be.  In today's Blog, we come across an equally provocative and absurd United States Supreme Court case, where we find a fisherman facing 20 years in federal prison for throwing fish overboard. Think I'm kidding? Consider this quote from the oral argument:

CHIEF JUSTICE ROBERTS:  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.

Miss Katie

The commercial fishing boat Miss Katie was six days on the Gulf of Mexico with a crew of three, including Captain John L. Yates, when, on August 23, 2007, Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded the vessel, which was in federal waters at that time of boarding but purportedly still within Officer Jones' jurisdiction as a deputized National Marine Fisheries Service federal agent. 

And now our fish story grows . . . or perhaps shrinks would be a more apt telling of this tale. Officer Jones comes across three red grouper hanging from a hook on deck, and he believes the fish are  under the 20 inches regulation that require their immediate release if undersized. Apparently smelling a bad catch, Officer Jones inspects the balance of the ship's catch and measures 72 undersized fish. A fellow officer records the measurements, which reveal that most of the 72 fish at issue were between 19 and 20 inches, with only three under that range but none less than 18.75 inches.

Groupin' Grouper

Putting aside his rulers, Officer Jones directed Yates to leave the undersized fish separated from the balance of his catch in wooden crates until returning to port. Prior to departing, Officer Jones issued Yates a citation.  When the Miss Katie docked four days later in Cortez, FL, Officer Jones was back on the scene, re-measuring the segregated fish in the crates. To his apparent surprise, all of the undersized fish were still under 20 inches but now somewhat longer than previously measured at sea. Officer Jones apparently sensed some form of tampering - and, under questioning, crew members admitted that they had thrown overboard the previously measured fish and replaced them with other grouper.

Mugshot of Confidential Informant Lester a/k/a "Fish Face" Grouper

Three Years Before The Mast

Inexplicably, the calendar advances from 2007 to May 5, 2010, at which time criminal charges are lodged against Yates, who was indicted for destroying property to prevent federal seizure; and for destroying, concealing, and covering up undersized fish to impede a federal investigation.  What the hell took three years? I dunno. Maybe the feds were taking their time reeling in this defendant. Notably, by 2010, the legal minimum for Gulf red grouper had been reduced from 20 to 18 inches (of which none of the cited catch was of such a diminutive stature).

Tangible Object -- As In Gulf Grouper?

Consider the federal statutes under which Yates was charged in the United States District Court for the Middle District of Florida ("MDFL"):
  • 18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
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.
  • 18 U.S. Code § 2232 - Destruction or removal of property to prevent seizure
(a)Destruction or Removal of Property To Prevent Seizure.- Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government's lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both. . .

Four Day Trial

Facing up to 20 years in prison on  §1519, after a four-day trial in August 2011, the MDFL jury found Yates guilty of knowingly disposing of undersized fish in order to prevent the government from taking lawful custody and control of them, in violation of 18 U.S.C. § 2232(a); and destroying or concealing a "tangible object with the intent to impede, obstruct, or influence" the government's investigation into harvesting undersized grouper, in violation of 18 U.S.C. § 1519. 

Last Known Photo of Lester "Fish Face" Grouper

11th Circuit Appeal

MDFL sentenced Yates to 30 days' imprisonment, followed by 36 months' supervised release. Yates appealed to the 11th Circuit and argued that MDFL had
  1. erred in denying his motion for judgment of acquittal on Counts I and II, because the government failed to present sufficient evidence to prove the fish thrown overboard were undersized;
  2. erred as a matter of law in denying his motion for judgment of acquittal on Count II, because the term "tangible object" as used in 18 U.S.C. § 1519 does not apply to fish; or in the alternative, the statute is ambiguous and the rule of lenity should apply; and
  3. abused its discretion by precluding him from calling an expert during his case-in-chief.
The MDFL conviction was sustained on appeal by the 11th Circuit, which interpreted "tangible object" pursuant to its "ordinary or natural meaning." United States of America, Plaintiff-Appellee, v. John L. Yates, Defendant-Appellant (Opinion, United States Court of Appeals for the 11th Circuit; 10-CR-00066; 11-16093, August 16, 2013)  

Supreme Court Appeal

On appeal, the United States Supreme Court reversed the 11th Circuit and remanded for further proceedings. Yates v. United States (Opinion, US Supreme Court, 13-7451, February 25, 2015).  As set forth in the Supreme Court's Official Syllabus:


JUSTICE GINSBURG, joined by THE CHIEF JUSTICE, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded that a "tangible object" within §1519's compass is one used to record or preserve information. Pp. 6- 20. 

(a) Although dictionary definitions of the words "tangible" and "object" bear consideration in determining the meaning of "tangible object" in §1519, they are not dispositive. Whether a statutory term is unambiguous "is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U. S. 337, 341. Identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute. See, e.g., FAA v. Cooper, 566 U. S. ___, ___. Pp. 7-10. 

(b) Familiar interpretive guides aid the construction of "tangible object." Though not commanding, §1519's heading-"Destruction, alteration, or falsification of records in Federal investigations and bankruptcy"-conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records. 

Section 1519's position within Title 18, Chapter 73, further signals that §1519 was not intended to serve as a cross-the-board ban on the destruction of physical evidence. Congress placed §1519 at the end of Chapter 73 following immediately after pre-existing specialized provisions expressly aimed at corporate fraud and financial audits. 

The contemporaneous passage of §1512(c)(1), which prohibits a person from "alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object . . . with the intent to impair the object's integrity or availability for use in an official proceeding," is also instructive. The Government argues that §1512(c)(1)'s reference to "other object" includes any and every physical object. But if §1519's reference to "tangible object" already included all physical objects, as the Government also contends, then Congress had no reason to enact §1512(c)(1). Section 1519 should not be read to render superfluous an entire provision passed in proximity as part of the same Act. See Marx v. General Revenue Corp., 568 U. S. ___, ___. 

The words immediately surrounding "tangible object" in §1519- "falsifies, or makes a false entry in any record [or] document"-also cabin the contextual meaning of that term. Applying the canons noscitur a sociis and ejusdem generis, "tangible object," as the last in a list of terms that begins "any record [or] document," is appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects used to record or preserve information. This moderate interpretation accords with the list of actions §1519 proscribes; the verbs "falsif[y]" and "mak[e] a false entry in" typically  take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See Gustafson v. Alloyd Co., 513 U. S. 561, 575. 

Use of traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and §1519 itself thus call for rejection of an aggressive interpretation of "tangible object."

Furthermore, the meaning of "record, document, or thing" in a provision of the 1962 Model Penal Code (MPC) that has been interpreted to prohibit tampering with any kind of physical evidence is not a reliable indicator of the meaning Congress assigned to "record, document, or tangible object" in §1519. There are significant differences between the offense described by the MPC provision and the offense created by §1519. Pp. 10-18. 

(c) Finally, if recourse to traditional tools of statutory construction leaves any doubt about the meaning of "tangible object" in §1519, it would be appropriate to invoke the rule of lenity. Pp. 18-19. 

JUSTICE ALITO concluded that traditional rules of statutory construction confirm that Yates has the better argument. Title 18 U. S. C. §1519's list of nouns, list of verbs, and title, when combined, tip the case in favor of Yates. Applying the canons noscitur a sociis and ejusdem generis to the list of nouns-"any record, document, or tangible object"-the term "tangible object" should refer to something similar to records or documents. And while many of §1519's verbs- "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in"-could apply to far-flung nouns such as salamanders or sand dunes, the term "makes a false entry in" makes no sense outside of filekeeping. Finally, §1519's title-"Destruction, alteration, or falsification of records in Federal investigations and bankruptcy"- also points toward filekeeping rather than fish. Pp. 1-4.

GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.