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November 5, 2014

"Fish, Shotguns and Judicial Activism"

Images (3)The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:

Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.

The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....

Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.

In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.

For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.

Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.

The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.

The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?

You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?

The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”

The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.

Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism. 

Some previous related posts:

November 5, 2014 at 10:42 AM | Permalink


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"If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism."

You have to tell me what "activism" means. Talk about void for vagueness.

Posted by: Joe | Nov 5, 2014 12:20:40 PM

It seems to me that the wording of the law says: "makes a false entry in any record, document, or tangible object.” How did Yates make a false entry? The law seems to forbid making a false entry IN...and then lists items you may not make a false entry into. Which does not apply to fish in any way.
Yes, it seems he tampered with evidence...but isn't there some other part of the law that forbids tampering with evidence? especially when instructed be authority not to? Couldn't the authority put something like.."Crime scene..Do Not Cross" on to the (supposedly crated) fish...and if the person then violated that, there would be a problem?
It just seems like the Government picked the wrong statute to apply to this behaviour...and at this point, I'd tell them "no dice...try to pick some better statute next time"

Posted by: folly | Nov 5, 2014 1:24:05 PM

"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."


The second comment to me errs by selectively quoting the law. He was convicted of destroying or concealing a tangible object (fish). To me, it seems pretty clear that throwing fish overboard, e.g., to interfere with fish and wildlife management is a form of "destroying" or "concealing" evidence. The rub would be the "tangible object" aspect of the case, but the statute seems to open up to this application.

Scotusblog suggests the justices were concerned that the law would be applied to trivial offenses and the like, but this seems to be possible for any number of broadly written statutes that are broadly written to address any number of situations that arise. Guarding against interference with fish and wildlife conservation laws is a valid concern. The ultimate sentence here was thirty days and supervised release. Not a grand threat to civil liberty at the end of the day to my eyes.

Posted by: Joe | Nov 5, 2014 1:52:26 PM

Does the TITLE of the Statute count for something? At your suggestion
I looked up the law which is titled:

18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

Is a fish a record? If we go by the title only RECORDS would be at issue wouldn't they? Do we go by the common meaning of each word, including the
title to get a context? The statute again seems to be relating solely to purposefully made records. Again, I'm not suggesting something was not amiss here...I'm just thinking this was the wrong statute to use.

Also having been myself indicted for Federal Crimes (and acquitted)...I assure you it is no small matter to be accused or convicted in this country of ANYTHING. The Government tried to convince Aaron Swartz they "only wanted six months" and we know how that ended up...so even 30 days can be a pretty unhappy thing. This is the type of situation where civil penalties might have been better suited.

Posted by: folly | Nov 5, 2014 3:59:03 PM

The title helps provide context but the text speaks of "record, document, or tangible object" so more than "records" are at issue here.

We can't merely go by the title. The title suggests the immediate concern and/or inspiration but the actual text is a more broad anti-obstruction statute and that is how it has been used down to someone involved in the Boston Marathon bombing -- http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-7451_resp.authcheckdam.pdf

Any time in prison can be "unhappy" here. But, the concern of some is that this is a particularly outrageous application federal prosecution, including enough to be one of the tiny number of appeals heard by SCOTUS. As a whole, I don't think this is such a "grand threat" as all that. I use the qualifier advisedly. ANY threat to liberty matters, but there is some sense of perspective.

Posted by: Joe | Nov 5, 2014 5:43:43 PM

i think the gov't and the fish inspectors should be glad he didn't do what I would have. your on MY boat and out of god knows how many thousand fish you find a dozen under size and start talking shit. I would have dumbed HIS ASS over the side. Now THAT is how you dispose of evidence. NO Inspector! no Case! Sorry never saw him!

Posted by: rodsmith | Nov 5, 2014 10:39:59 PM

Guess we'll see if they dust off Holy Trinity.

Posted by: federalist | Nov 6, 2014 12:24:16 AM

Joe. There is no provision in the constitution allowing judicial review of legislation. It stems from a flawed and corruption filed decision. It lay dormant for 50 years because it was ridiculous. Then it reared its ugly, treasonous head in the Dred Scott decision, and set off a Civil War. Lincoln had an arrest warrant completed and was handing it to a federal marshal when a filthy lawyer traitor persuaded him to take it back. It was to arrest Chief Justice Taney for his role in Dred Scott, for treason. He would have been arrested, tried and hanged.

Although I consider lawyer dumbass Lincoln to be the most catastrophic and the very worst President in history, I am with Lincoln when it comes to judicial review. Every single instance is an insurrection against Article I Section 1, granting law making power to the legislature. All those allowing it are subject to arrest for insurrection, trial, and the death penalty for treason.

The greatest President was a farmer. George Washington.

Posted by: Supremacy Claus | Nov 9, 2014 8:19:50 AM

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