As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)
Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “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 in relation to or contemplation of any such matter.”
On appeal, the question was simply whether a fish counted as a “tangible object.” Quite obviously, under any ordinary or dictionary understanding of “tangible object” a fish would qualify. Yet, the Court nonetheless ruled in Yates’s favor. A fish, it turns out, is not a “tangible object” for purposes of §1519.
In attempting to overcome a plain-meaning interpretation of a statute, Yates faced a challenge familiar to many litigants, civil and criminal. So, how did Yates pull it off? Many lawyers are no doubt already combing the case for helpful language.
There is a significant difficulty, though, with using Yates as precedent: the Court managed no majority opinion. Justice Ginsburg wrote a plurality opinion for four Justices. Justice Alito provided the key fifth vote in favor of Yates, but wrote separately, apparently in order to distance himself from some of the plurality’s more adventuresome statutory interpretation maneuvers.
If we put the plurality opinion together with Alito’s, three considerations seem to emerge as decisive. First, the pairing of “tangible object” with “record” and “document” suggests that “tangible object” refers to objects used in filekeeping. Justice Alito (echoing the plurality) invoked two impressive-sounding Latin canons of statutory construction on this point:
The noscitur a sociis canon instructs that when a statute contains a list, each word in that list presumptively has a “similar” meaning. A related canon, ejusdem generis teaches that general words following a list of specific words should usually be read in light of those specific words to mean something “similar.” Applying these canons to §1519’s list of nouns, the term “tangible object” should refer to something similar to records or documents. A fish does not spring to mind . . . .
Second, the plurality and Alito looked to the list of prohibited actions, which included “makes a false entry in.” Obviously, it makes no sense to apply this verb phrase to fish—one cannot make a false entry in a fish in the same way that one could make a false entry in a record or document.
Third, the plurality and Alito emphasized the title Congress attached to §1519: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” As Alito pointed out, “This too points toward filekeeping, not fish.”
Writing what should be regarded as the case’s controlling opinion, Alito was careful to note that “perhaps none of these features by itself would tip the case in favor of Yates, [but] the three combined do so.” With this narrowing language, Alito was evidently trying to limit the precedential impact of the case.
The plurality opinion adds a number of interesting interpretive considerations to the mix, and with four Justice signing on, including Chief Justice Roberts, the analysis is worth paying attention to.
First, the plurality indicated that “although dictionary definitions of the words ‘tangible’ and ‘object’ bear consideration, they are not dispositive of the meaning of ‘tangible object’ in §1519.” The plurality explained, “In law, as in life . . . the same words, placed in different contexts, sometimes mean different things.” By the same reasoning, the plurality rejected the suggestion that “tangible object” should be given the same interpretation it has received in discovery rules.
Second, the plurality looked to the placement of §1519 within Chapter 73 of Title 18. The plurality observed that the surrounding provisions “prohibit[ed] obstructive acts in specific contexts.” This seemed an unlikely place to put an “all-encompassing ban on the spoliation of evidence,” as the government suggested §1519 was.
Third, the plurality thought that the government’s expansive interpretation of §1519 would render another provision, §1512(c)(1) superfluous. This provision imposes a similar penalty on anyone who “alters, destroys, mutilates, or conceals a record, document, or other object . . . with the intent to impair the object’s integrity or availability for use in an official proceeding.” If “tangible object” in §1519 were as broad as “other object” in §1512, then it would seem that §1512 would have nothing to add.
Fourth, the plurality cited a seemingly narrow definition of “records, documents, or tangible objects” adopted by the U.S. Sentencing Commission in the Sentencing Guidelines.
Fifth, the plurality noted the severity and breadth of the statute. “It describes not a misdemeanor, but a felony punishable by up to 20 years in prison. And the section covers conduct intended to impede any federal investigation or proceeding, including one not even on the verge on commencement.”
Finally, the plurality invoked “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”
It seems to me that much of the plurality opinion misses the forest for the trees. As often happens in statutory interpretation cases, the plurality gets caught up in the various canons with their unrealistic assumptions of hyper-precise legislative drafting. The big question that the plurality never gets around to answering is why it would make sense for Congress to criminalize the destruction of an object “used to record or preserve information” (the plurality’s definition of “tangible object”) but not the destruction of other evidence. Isn’t the harm essentially the same whenever evidence is destroyed, regardless of the specific type of evidence?
I think the dissent is correct in identifying what really animates the plurality opinion:
If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. . . . That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code.
If that really is the plurality’s problem with a broad interpretation of §1519, the dissent, written by Justice Kagan, does not disagree with the underlying policy concerns:
I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
Still, the four dissenters would leave it to Congress to find a solution, and not try to address the “pathology” of the federal criminal code through statutory interpretation.
As I discuss in this article, I do think there is room within the traditional principles of statutory interpretation for the Court to rein in some of the excesses of federal criminal law, and there has been a quiet, if halting, trend in that direction over the past decade. It is another question, though, whether such a narrowing construction is appropriate in a case like Yates in which the plain language of the statute seems to point so strongly in the other direction.