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November 7, 2014
Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"
Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:
The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent. The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.
Fish are funny. First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even. The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices. And this wasn’t all the Scalia show. Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.
But overcriminalization is not. Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution. Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it. At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.” (Again, to great laughter.) In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion. Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause. Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.
And neither is severe sentencing. Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction. A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available. The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.” He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.
Overcriminalization exacts real hams. I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context). Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement. This is what so many of the Justices were reacting to during the argument. But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law. The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.
Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner. According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail. The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.
November 7, 2014 at 10:43 AM | Permalink
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Comments
The USSC doesn't seem to be consistently concerned with heavy sentences including "three strikes" laws even when the person is given a long prison sentence, including not even taking such cases. But, a guy gets thirty days and suddenly the mere potential is a travesty. I find this a bit much myself.
As a general matter, overcriminalization etc. is a concern, but this to me is a bad avenue for it. There was a real obstruction here, the text of the statute was reasonably applied & the net result was reasonable punishment. I understand that the prosecutor asked for more, but the system worked here. And, this isn't an 8th Amendment proportional review case. If the guy wins here, disposing of a body, e.g., might not count since it is not the sort of "object" that is argued to be at issue here.
Posted by: Joe | Nov 7, 2014 11:21:26 AM
ETA: If we are concerned about length of time here, even something absolutely clearly a good fit to the statute could result in unreasonable sentences. Twenty years for obstruction by some financial firm, e.g., of some business records is a bit much.
Posted by: Joe | Nov 7, 2014 11:31:14 AM
I think the point is, though, that there were other, already existing provisions to charge Yates (and your body disposer) with, rather than using a provision aimed at financial records. The Justices were concerned that the only limiter in how all these overlapping criminal provisions are used is the prosecutor's office, which demonstrated it's most interested in leveraging plea agreements. If that's the case, then the way the Court addresses overcriminailzation and its consequences--prosecutors as lawmakers and adjudicators--is to narrowly read criminal statutes.
Posted by: TJH | Nov 7, 2014 11:37:08 AM
"Mmm ... real hams."
- Homer Simpson
Posted by: tyler | Nov 7, 2014 12:02:12 PM
The government's brief cited various cases -- including those more serious than disposal of fish -- where this provision was used. Why was it used in such cases?
I respect the rule of leniency though again note that more probably should be said about the range of cases where this provision was used. But, we get comments about "inherent absurdity" of the prosecution. The prosecution was not absurd. The guy obstructed justice. Don't know what there is not "to buy" there. This isn't Carol Bond giving someone a rash (which is exaggerated itself -- the chemicals used very well could have done a lot more than that as they were indiscriminately used in public places).
Posted by: Joe | Nov 7, 2014 12:46:23 PM
I would disagree that the statute makes prosecutors into lawmakers or adjudicators (or at least not any different than any other statute).
The prosecutors are not the ones making this law broad (that was Congress who used a broad term that by its plain language would cover fish if fish were evidence). They are also not technically adjudicating at least not any more than is required by any attorney in any case deciding whether their facts meet the legal requirements).
The real issue (and it exists on both the civil side and the criminal side at every level of government and always has) is that the executive branch does not have (and never will) have the staff to investigate every potential violation of the law and take every one of those violations to trial. The legislature (mostly) knows this and takes advantage of it by writing very broad laws to cover ever conceivable circumstance. It is then left to the executive to make "wise" choices about what misconduct merits the use of those limited resources.
To some extent the problem in this case is not that tampering with evidence isn't and shouldn't be a crime, it's the manual apparently telling inexperienced prosecutors to look for the maximum possible charge that they can shoehorn the case into fitting. The existence of broad discretion in the executive branch is not a bad thing in itself. It is a bad thing when the executive fails to use that discretion in a semi-reasonable way.
Posted by: tmm | Nov 7, 2014 3:03:57 PM
"As a general matter, overcriminalization etc. is a concern, but this to me is a bad avenue for it."
I'm with Joe here. The statute says what it says. Scalia's statements to the contrary, Bond is easily distinguishable since that comes out of a foreign policy context. Now, I do understand how they are the same in the sense that both can been seen as the Executive taking the intent of Congress and warping it. But it's critical to draw a distinction between overzealous prosecution and prosecution that gives full faith and credit to Congress that produces wacky results. If the prosecution was "mad" in Yates it was because Congress wanted that result.
Posted by: Daniel | Nov 7, 2014 3:43:16 PM
"The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.” He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing."
This is why I continue to have respect for the courts. When law makers (legislative branch) and law enforcement (executive branch) run too amok, the last hope is the courts, and cases like this one put it in perspective. It is a sort of satire on the dysfunctional love affair between the two manic branches. The most important SCOTUS cases in history have all recognized this incest-like love affair that lost sight of the boundaries of the balance of powers.
Posted by: George | Nov 7, 2014 4:30:32 PM
That was the methodology of the Inquisition 1.0. Find a productive male. Accuse him of some made up charge breaking some made up rule. You blasphemed by eating meat on Friday. That was a regulation likely lobbied by the fishing industry in rent seeking. It is not even religious. Then present a plea deal, take the assets. Go build the Vatican and Sistine chapel.
We are in the Inquisition 2.0. Same business model. Government may lie in a matter, the defendant may not. The Inquisition ended when French patriots beheaded 10,000 church officials. Same remedy model applies here.
Posted by: Supremacy Claus | Nov 7, 2014 7:55:18 PM
Guffaws may seem alright, but do absolutely nothing wrt to "The Law" (heads bowed please). How about lawmakers stop passing bad, overbroad statutes, and repeal the bad ones on the books. Do it NOW before their number appears to seem infinite.
Also, an occasional (or frequent) flogging of an overzealous prosecutor and supporting LE could do wonders, not only for the nations psyche, but its morale.
Posted by: albeed | Nov 7, 2014 8:49:56 PM
A constitutional amendment imposing desuetude on the states, where a statute or regulation is void if not enforced for 5 years. Each year, states would publish all voided statutes and regulations. Idiotic gestures by legislators to get their names in the paper would be repealed by the discretion of prosecutors. "Enforced" should mean prosecuted to a guilty verdict, so judges and juries could express their disapproval as well. Plea agreements are contracts, and should not count as a conviction. Today, only West Virginia has desuetude in effect.
Posted by: Supremacy Claus | Nov 7, 2014 11:32:19 PM
Yates is a hard case. I don't think it's vague. I think the language is extremely clear. It's just scarily overbroad. I agree with Justice Scalia one the "is this the same Prosecutor who decided Bond was a good idea?" But, while Congress created deliberately overbroad laws counting on Prosecutorial discretion, there's nothing in the Constitution or United States Code that suggests courts should depart from the clear language of a statute to make up for Prosecutors not using discretion.
Trust me, I wish they would. Prosecutions like this are absolutely ridiculous. In fact, I would go further. Having to rely on discretion in the first place is an inherent problem. They shouldn't give a rule that only exists when Prosecutors fail to properly exercise discretion. That just leaves open the oddball case where the Prosecutor chooses not to exercise discretion and it slips through the cracks. However, no rule like that is justified by the law, it's just justified by what the law should be. If Congress passes a ridiculously overbroad law that doesn't infringe on the First Amendment, it is a valid law. And I have some concerns that the Court would be rewriting the statute in the guise of interpreting it.
Posted by: Erik M | Nov 8, 2014 9:54:01 AM
"Prosecutions like this are absolutely ridiculous."
People who interfere with federal inspections by disposing of the stuff that is being inspected and so forth can at some point be given criminal penalties w/o it being ridiculous. The absolute ridiculous thing would be the length of time that was sought out. The resulting punishment actually given to me was not ridiculous. And, justices of the Supreme Court opining on sound prosecutorial discretion is a tad much. That is not their job.
But, the "should be" comment in a good one. Liberals are supposed to let law rule, not aim for what "should be" as ideal policy. The criticisms to me repeatedly are a bit much (often based on a disagreement on what the law is) and cases like this show it is far from a one-sided thing in practice.
Posted by: Joe | Nov 8, 2014 11:02:10 AM
ETA: Judges do have a responsibility to determine if prosecutors used discretion in a way that was unauthorized in some fashion. But, not simply a bad choice given even if the law authorizes a prosecution, it just is a bad idea. Anyway, as I understand it, it isn't the "prosecutor" but the general policy that applies to all that is the problem.
Posted by: Joe | Nov 8, 2014 11:08:04 AM
You don't think they could have proven the case without the fish themselves?
Posted by: Erik M | Nov 9, 2014 7:50:53 PM
I agree with the point TJH makes. I think the issue is not the fact that the system did not work in this instance; there seems to be no question that Yates committed the crime as set forth in the statute. Rather, it is seems that the Court is concerned with the implications of broad statutes, the prosecution's unofficial policy to, once it has been decided to charge an offender with a criminal charge, charge the offender with the most severe offense, and the potential bargaining power that this could give prosecutors when constructing plea bargains.
Ultimately, the Court appears to be concerned about the over-broadness of statutes created by Congress then left up to the discretion of the prosecution. Furthermore, Martinez's statement about charging an offender with the most severe offense seems to raise an alarm about the implications of vagueness in statutes. Although the Court's concern may not apply specifically to Yates's situation, I think the transcript indicates the Court's concern about future implications of this framework in general.
Posted by: HBC | Nov 10, 2014 11:09:00 AM
Regarding Yates, fish sometimes have a mind of their own. Since it is true that all fish, are in essence, tangible objects, this case, in essence, is about discrimination. I am wondering if one could purchase fish netting, with a warning that makes it clear, "danger, no shrimps and/or shrimps allowed", thus releasing the fisherman from being responsible for those fish who believe they are a good catch, and thus, allow themselves to get caught up in the net.
I am someone who has yet to encounter a fish I did not like.
Posted by: N.D. | Nov 17, 2014 10:57:53 AM
One would think spending 30 days in jail for failing to discriminate against fish, like the outrageous fine of $36,500 per person, for providing a Health Care Plan sans contraception coverage, when the fine for not providing Heath Care at all is $2,000 per person, would be a violation of the principle of proportionality, and thus The Eighth Amendment. Let's hope, common sense and Justice will prevail.
Posted by: N.D. | Nov 17, 2014 11:12:24 AM
Just wondering if the fish were still alive when they were returned to the sea.
Posted by: N.D. | Nov 17, 2014 11:20:09 AM