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April 28, 2014

Curious SCOTUS cert calls in criminal cases continuing, though overcriminalization now on docket

Court-yates_0056I was lamenting earlier this month in this post that the Justices seem to have relatively little interest in big criminal justice issues of late (especially on sentencing fronts), though I suppose I could have reconsidered this idea after SCOTUS last week took up two new criminal cases as reported here.  Today, via this new order list, SCOTUS showcases some more curious cert pool splashing around as detailed in this post at SCOTUSblog:  

The Court on Monday granted review in two new cases; both will be decided next Term. One seeks clarification of what a home loan borrower must do in order to get out from under the mortgage because the lender allegedly failed to provide full disclosure of the loan terms (Jesinoski v. Countrywide Home Loans).

The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal investigation. At issue in Yates v. United States is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish. A fisherman convicted of destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action. The Court limited its grant to the first question raised in the petition.

The ongoing mystery of what the Court is doing with a California murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday. The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased. Presumably, that case will be listed again this week, for a twenty-first time. It has been put before the Justices in every scheduled Conference since September.

The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home. The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense....

In accepting review of the Yates case, the Court will be spelling out the scope of a law passed in the wake of the corporate scandals, particularly involving Enron Corp. A provision of that law made it a crime to interfere with a federal investigation by destroying, hiding or altering vidence. The law forbids destroying, multilating, altering, concealing or falsifying “any record, document or tangible object,” with the intent to impede or obstruct a federal investigation.

The case involves John L. Yates, a Floridian who captained a commercial fishing vessel, Miss Katie, working the waters of the Gulf of Mexico. An inspector boarded the vessel in 2000 to check for compliance with fishing regulations. While on board, he saw several red grouper fish, which appeared to him to be smaller than the 20-inch minimum size for taking that species. He measured them, and found 72 that he deemed were too small.

Yates and his crew were told to return to port, and not to disturb the catch. Yates later was charged with violating the law against destroying evidence, for allegedly ordering a crew member to throw the undersized fish overboard. The crew then replaced the discarded fish with other red grouper.

At his trial on criminal charges, including destroying evidence, Yates’ lawyers contended that the law against destroying evidence was designed only to deal with documentary evidence, and that its coverage of “tangible objects” meant to apply on to the same category. That argument failed in the trial court, and Yates was convicted of violating that provision by ordering the casting overboard of the small red grouper. The Eleventh U.S. Circuit Court of Appeals upheld his conviction, rejecting his challenge to the scope of the evidence law.

I have complained about the recent tendency of SCOTUS to take up lots of seemingly quirky criminal justice cases unlikely to have a huge impact, and then also dodging big issues like the reach and application of the Second, Sixth and Eighth Amendments in light of recent rulings. This new Yates case strikes me as another example of a seemingly quirky criminal justice case with only limited implications UNLESS some Justices were eager to make a big stink about the feds going criminally after a little fisherman.

If a majority of Justices were to develop some novel jurisprudence to help fisherman Yates prevail (and, as this local article highlights, he seems like a pretty sympathetic character), this Yates case could possibly become a very big part of on-going policy debates concerning the overfederalization and overcriminalization of seemingly small matters that arguably could and should be handled through civil means and without too much federal prosecutorial involvement.  Indeed, I suspect (and certainly hope) that this Yates case might bring out more amici from the right than from the left, largely because the big concern raised by the case is the ability for small local businesses to conduct their affairs without facing criminal prosecution for not playing nice with federal bureaucrats. 

April 28, 2014 at 11:52 AM | Permalink

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Comments

Ick. This is one of those cases where SCOTUS should uphold the ruling but it seems like they took the case to strike it down. I glanced through the brief of the NACDL and I was astounded by it--it seems wrong on every major point. Disappointing.

Posted by: Daniel | Apr 28, 2014 1:12:40 PM

This seems a dubious application of the text, but far from clear if it was just a matter of a law that might be as a policy matter too broad but applied correctly.

One or more of the briefs raised the specter of a civil offense potentially making someone liable for a long prison sentence. But, the guy here got thirty days and three years of regulated release. The latter has some hard consequences for his livelihood, but the obstruction alleged was not necessarily trivial.

Posted by: Joe | Apr 28, 2014 2:06:25 PM

As to "playing nice" -- would it be different if big fishermen were involved? Creativity would be helpful there. I can see the right supporting him, given their (selective) opposition to obstructive federal regulations.

Since the real punishment here to me seems to be not the thirty days (not to trivialize even that long in prison) but the burdens on the livelihood arising from the conviction (a felony, I gather), the civil v. criminal concern might be a fine line. Would not possibly a civil response to the problem at issue -- obstruction (not playing nice) -- include comparable burdens?

Posted by: Joe | Apr 28, 2014 2:14:02 PM

What this case really illustrates to me is that the NACDL is only interested in defending the rich fat cats. What a beautiful ploy--throw the little guy under the bus in the name of defending him.

Let's be clear here: the fisherman in this case would be worse off under the NACDL's brief. If penalties are shifted from the criminal law to the civil law the fisherman loses his right to a lawyer. Does that matter? Of course it does. Go look at the submissions to SCOTUS--the appeal in this case was filed /in forma pauperis/. So the poor fisherman really is a poor fisherman, so poor that under the NACDL brief he wouldn't get any help fighting the government. NACDL: we want to save you from the government by taking away your right to fight the government.


Posted by: Daniel | Apr 28, 2014 3:28:06 PM

The NACDL is understadably concerned with having people avoid criminal convictions (particularly felony convictions). Yes, the cost of civil cases is not insubstantial, but it's an apples and oranges thing. They're fighting for the principle that criminal laws should be interpreted narrowly to ensure defendants receive fair notice of what conduct is prohibited. That's an important, long-standing principle and I think they're right there (even if, as a perverse consequence, the Federal Public Defender is removed from the case).

Given the cases that the NACDL were amicus for previously (probably all of them, but I remember their brief for Salinas v. Texas so I can say that with confidence), I guarantee most of their amicus briefs are not on behalf of "rich fat cats."

Posted by: Erik M | Apr 28, 2014 4:45:30 PM

hmm a whole 72 fish out of how many 1,000's on the boat. Talk about an anial gov't fucktard. lucky they didn't decide the so-called inspected was too small or too stupid and tossed his ass back.

as for this bit of treasonous criminal stupidity!

"The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home."

funny but none of the copies of the 2nd amendment I have specify you can only bear your arms IN the house! in fact considering WHY and WHEN it was written any thought in that direction could be considered not only criminal stupidity but treason and grounds for summary execution for being just too damn stupid to live.

as for this case!

"The ongoing mystery of what the Court is doing with a California murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday. The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased. Presumably, that case will be listed again this week, for a twenty-first time. It has been put before the Justices in every scheduled Conference since September."

My biggest question is who is putting it on the schedule over and over and over. IF it is the justices themselves then they need to be informed ""time to make a damn decision one way or another. Since you will no longer get paid until that decision is rendered"". if it's someone else. Sounds like long past time to smack the idiot upside the damn head and tell them to give up.

Posted by: rodsmith | Apr 28, 2014 6:01:07 PM

For Ryan v. Hurles, the Justices are putting it back on the docket each time. The likely explanation is they're writing some kind of opinion on it. Cases continue until everyone has written all they want to say. My guess is it's either a Per Curiam opinion with concurring and dissenting opinions or it's a denial of cert with concurring and dissenting opinions. I would be shocked if they grant it unless one of those concurring or dissenting opinions convinces enough people to take the case.

In other words, at this point, it's not indecision keeping it there.

Posted by: Erik M | Apr 28, 2014 6:47:07 PM

well they should still get off their asses and say something. Not just leave it in limbo.

Posted by: rodsmith | Apr 29, 2014 12:11:49 AM

rodsmith's first statement is confused. The normal process of inspection is that you test a small part of something to test the batch or whatever. You do this at home too -- you might take a taste to test something. That is what was done here & the person was convicted with interference with said inspection.

As to the 2A, Heller clearly suggests that the RKBA is applied outside of the home. It does say that it is particularly important there, especially for the right of personal self-defense. And, it is -- the home is a special place of solace and importance, protecting family and self. The government has much less power to invade one's home. It is not that the right doesn't exist outside the home ultimately. It is the level of regulation allowed outside it.

Posted by: Joe | Apr 29, 2014 9:46:50 AM

Rod, most appellate courts work by something like consensus -- at least with regards to the timing of when opinions get released. Obviously, there is something being drafted, probably with competing drafts. Other than the unofficial deadline of the end of June (which makes the Supreme Court unique as those of us who do appellate practice all have horror stories of cases under submission for two years or more), there really is no deadline and judges are done with their drafting and re-drafting of opinions when they are done. It's not as if Ryan v. Hurles is the only opinion that their chambers are drafting. Putting it on each conference is a way for the rest of the justices to put pressure on the drafters to rap things up and stop trying to re-draft to respond to each new draft from the other side. But until a judge is satisfied that their opinion is ready to be released, the majority is not going to force them to issue it.

Posted by: tmm | Apr 29, 2014 9:56:34 AM

no joe my statement is not confused. if your looking at 20,000 fish in a cargo hold 70 the wrong size is a rounding error not grounds for criminal action. at that point my 2nd one comes into play. where the inspector is more a stuck up twit with an obvious axe to grind that might need to fall off the ship. As for the 2A I was looking at this!

"The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense...."

sorry but in my opinion the constitution does NOT give them the right to control what I do with my guns. As long as I'm an American citizen and I'm not violating any normal law with my weapons they are mine to do with as I wish. It is certainly not my problem when some dumbed down idiot see's my gun in a holster on my person and get's the shit scared out of them things to the media that they call the cops. It's not the cops problem either. Unless the chicken shit can state some illegal activity besides "he's got a gun in a holster"


tmn I know that's how they work but I'm sorry 20+ times up at bat I'd think the great and power justices could by this time manage to get off their lazy asses and at lest tell SOMEONE they have taken the case and an opinion is forthcoming.

of course I also think that once they have taken a damn case they should have "x" amount of days to render a damn decision and no decision that is classified as "unpublished" is legal.

Posted by: rodsmith | Apr 29, 2014 4:45:57 PM

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