Is a fish a "tangible object"?

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Or more precisely, is a fish a "tangible object" in the sense that throwing undersized fish overboard would fall within the purview of 18 U.S.C. § 1519, which states that

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.

John Brewer alerts us to the fact that the Supreme Court has recently agreed to review the holding of a lower court that the noun phrase "'tangible object,' as § 1519 uses that term, unambiguously applies to fish.”

John writes that

It may also be relevant that the criminal statute in question was enacted as part of the Sarbanes-Oxley Act (generally understood to have been passed in response to Enron-type scandals which inter alia involved allegedly improper shredding of evidence of accounting chicanery)  whereas Yates was the captain of a fishing vessel which was busted catching grouper below the minimum legal size and then impeded the government’s investigation by throwing the evidence (i.e. the undersized fish) overboard.

The lower court opinion is here — page with links to Supreme Court briefing is here.

This reminds me of a passage in Eben Moglen's "Anarchism Triumphant: Free Software and the Death of Copyright" (First Monday, August 1999):

[I]n my role as a legal historian concerned with the secular (that is, very long term) development of legal thought, I claim that legal regimes based on sharp but unpredictable distinctions among similar objects are radically unstable. They fall apart over time because every instance of the rules' application is an invitation to at least one side to claim that instead of fitting in ideal category A the particular object in dispute should be deemed to fit instead in category B, where the rules will be more favorable to the party making the claim. This game – about whether a typewriter should be deemed a musical instrument for purposes of railway rate regulation, or whether a steam shovel is a motor vehicle – is the frequent stuff of legal ingenuity. But when the conventionally-approved legal categories require judges to distinguish among the identical, the game is infinitely lengthy, infinitely costly, and almost infinitely offensive to the unbiased bystander.

Prof. Moglen footnotes a more positive view of the same process from S.F.C. Milsom,  Historical Foundations of the Common Law, 1981:

The life of the common law has been in the abuse of its elementary ideas. If the rules of property give what now seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit the phenomena of property. If the rules of contract give what now seems an unjust answer, try tort. … If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence. And so the legal world goes round.

I've quoted Prof. Moglen before ("Allegations of forced fermatic practices", 11/27/2003), and as before, I don't entirely agree with his conclusion.  It seems to me that the common law, as Moglen and Milsom describe it, is like human intelligence in general, which is constantly using (what in other circumstances we call) analogy and metaphor to put old things into new frameworks, or new things into old frameworks. This makes it difficult to create workable semantic ontologies, or to keep track of word senses — and it certainly makes work for lawyers. But the whole system has been stumbling along for some time, and seems likely to continue on its chaotically stable course.

Update — Some relevant earlier posts:

"Is a cow a motor vehicle?", 4/16/2006
"Grand Theft Bovine; Or, When is an antelope not a document?", 4/19/2006
"Is a cow a negotiable instrument? Can a woman be a 'reasonable man'?", 4/21/2006

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22 Comments »

  1. Stan Carey said,

    April 30, 2014 @ 4:30 am

    Of possible interest: Lexicon Valley did a podcast last month on the legal implications of semantic categories (e.g., tomatoes as fruit or vegetables, X-Men figurines as dolls or toys).

  2. Simon K said,

    April 30, 2014 @ 4:45 am

    Reminds me of the lengthy battle in the UK over whether Jaffa Cakes should be considered as biscuits (cookies, to our American friends) or as cakes.

  3. Yerushalmi said,

    April 30, 2014 @ 5:11 am

    Everybody has a "this reminds me", it seems. Here's mine: "Verbatim: What is a photocopier?", NYT 3/27/2014.

    The court case here involved when the office started charging for CD copies of documents at the same $2-a-page rate as photocopying.

  4. Zubon said,

    April 30, 2014 @ 7:28 am

    If the captain had instead fileted and eaten the fish in question, I imagine that would fall under "mutilate" and "destroy." I'm looking forward to the first trial of a captain making false entries in a fish.

  5. John said,

    April 30, 2014 @ 8:06 am

    And here's my "this reminds me": an article by George Monbiot about the legal gymnastics involved in grouse shooting in the UK, including the way grouse flip-flop between being "livestock" and "wild animals" depending on whether the appropriate legislation is convenient to hunters or not at the point it applies — for example, you can't hunt livestock, but you can't trap wild animals, so while you're shooting them they're wild animals and when you're re-catching them they're livestock.

    http://www.monbiot.com/2014/04/28/the-shooting-party/

  6. Ray Girvan said,

    April 30, 2014 @ 8:20 am

    I'm reminded of a similar fictional example – Rider Haggard's Mr. Meeson's Will, which contains a legal discussion of whether a person (a woman who has a will tattooed on her back) can be a legal document.

  7. Eric P Smith said,

    April 30, 2014 @ 9:30 am

    I'm reminded of the English tax case of Bourne v Norwich Crematorium, where the question is whether the cremation of human remains is "the subjection of goods or materials to a process". The court held that cremation might possibly be described as a "process" but that human remains are not "goods or materials". As the court said, "English words derive colour from those which surround them."

  8. Dan T. said,

    April 30, 2014 @ 9:49 am

    @Simon K: And the Jaffa Cakes legal case web page popped up a warning for me about the site using cookies, which are in this instance neither biscuits nor cakes.

  9. Neal Goldfarb said,

    April 30, 2014 @ 11:46 am

    @Zubon: " I'm looking forward to the first trial of a captain making false entries in a fish."

    From Is a cow a negotiable instrument? Can a woman be a "reasonable man"?:

    Simon Musgrave writes:

    Relevant to the Language Log posts on the status of cows are two sections from a favourite book of mine, A.P. Herbert's Uncommon Law (London: Methuen, 1935). Case #32 in this book reports the actions (heard together) Board of Inland Revenue v. Haddock and Rex v. Haddock, where Mr Haddock attempts to pay his tax bill by writing a cheque on the side of a cow, and causes a public disturbance when he delivers the cheque. Various arguments are given as to whether the animal constitutes a negotiable instrument, the presiding judge ruling that it certainly does and that the Collector of Taxes erred in not accepting it. Case #20 reports argument from the Court of Appeal in which Mr Haddock (again!) suggests that motor cars have the legal status of wild beasts — and finds sympathetic judges.

    Alas, the case of Mr. Haddock and his cow is fictitious (but not, however, a legal fiction). Nevertheless, it has been discussed in court opinions in real cases (link) and in books on the law of negotiable instruments (link, link). The book that the latter link points to suggests that a check written on a cow would not be negotiable because it would not meet the requirement that negotiable instruments be freely transferable: "A cow cannot easily be transferred in the ordinary course of business."

    Although not directly relevant, see also the 1828 case of Mechanics' & Farmers' Bank v. Schuyler, which concerned the question whether checks must be dated, and which was reported at 7 Cow. 337.

  10. J. W. Brewer said,

    April 30, 2014 @ 12:53 pm

    I think a lot of these other examples are a bit different from issue presented by the case at hand. If one contrasts the general category "tangible object" with some other general category like "intangible object," there may be a bit of blurriness at the edges and some difficult borderline cases, but a fish would probably not be one of them.

    The linguistic issue here I think is more about how strictly compositional the meaning of sentences is once you know plausible standard meanings of the component words or fixed phrases on a freestanding basis. If "tangible object" unambiguously includes fish when it's a freestanding NP without context, does it necessarily do the same in the context of this particular sentence, or does something about the sentence as a whole force or at least suggest a narrower semantic scope that would be implausible for the NP in a freestanding vacuum? (And can we then consider the sentence qua sentence in a vacuum, or do we need more context about the genre of the text and its historical circumstances etc.?)

    Note that if the sentence had read "any document, record, or *similar* tangible object" (perhaps some other modifier/qualifier would also work), it would be a much easier issue for the defendant's side. So one way of thinking about the question is whether the best reading of the sentence in context is to read it as if implicitly containing such a modifier/qualifier, or if the omission of such a modifier/qualifier should be taken to require the NP to be read with a broader ("ordinary" if in a vacuum) scope.

  11. Daniel Barkalow said,

    April 30, 2014 @ 1:13 pm

    Looking at the actual lower-court ruling, the "tangible object" is really a crate of fish, and the captain is accused of making false entries in the crate of fish by replacing those fish with different fish. I think the implicit intent of the statute is to apply to objects whose state has been arranged to convey meaning; while a fish is not normally such an object, a crate containing specially selected fish does store the information that those fish were the ones that were selected.

    I think the court let him suck them into a silly position by not rejecting his argument on the basis that he was never accused of disturbing a fish, but rather of disturbing a sealed crate of evidence, and a crate with specific contents is definitely a tangible object and also relevant to SOX.

  12. Ray Girvan said,

    April 30, 2014 @ 1:48 pm

    An example where I think the semantics starts to get problematical is in legal definitions of intangible data processes in terms of tangible metaphors.

    In the UK press, there are frequently reports of computer crime defendants being charged with making obscene images. It doesn't seem generally known that "making" in UK computer misuse law is the term used for transferring remote data to one's computer; it can mean downloading, but can also mean viewing a website (on the rationale that doing so "makes" a copy on the screen).

    This breaks away so wildly from the everyday semantics of "making" that I'm sure it's prejudicial. Most people who read that someone has been charged with "making obscene images" will assume that they've been directly involved in taking photos, whereas it generally means that they've done a lot of web browsing and those "made" images refer to the contents of their browser cache.

  13. J. W. Brewer said,

    April 30, 2014 @ 2:08 pm

    Ray Girvan: it is not uncommon for legal jargon to be potentially misleading to a lay audience. Whether the burden ought to be on the legislature to change the labels given to particular offenses (which are not necessarily misleading to the insiders) or on the media to report the charges via some sort of paraphrase that is less likely to mislead their readers is a separate question. (Occasionally the legislature will rename things just because the old names have become problematic, as when the New York legislature enacted amendments to stop using "sodomy" in the name of various criminal offenses covering non-consensual acts, acts involving minors, etc., presumably because the word was thought to have pejorative baggage left over from the old days when even between-consenting-adults-in-private "sodomy" was a crime.)

    Here, I would guess that an American newspaper would likely have used a high-level (and not unfair) paraphrase like saying that the defendant had been charged with (and then convicted of) "destroying evidence."

  14. Daniel Barkalow said,

    April 30, 2014 @ 2:19 pm

    @J. W. Brewer: I think that, even if we read it as "some (similar) tangible object", a crate designated to contain certain fish of relevance to the case is a record of which fish those are. It would be an easier argument if he were accused of somehow stretching the fish in the crate rather than replacing them with different fish, since then it would be the fish, rather than the arrangement, that would have been altered.

    It seems to me that the intuitive reading of "narrow-X, narrow-Y, or general-Z" is to include any Z which has the characteristics that typify X or Y, even if it has characteristic which are unusual for X or Y but usual for Z. A crate of fish is not a typical document or record, because it encodes information directly in the physical arrangement of fish rather than symbolically, but direct representation of information is normal for tangible objects, so that abnormality must be within what the "or tangible object" phrase is intended to ignore.

  15. J. W. Brewer said,

    April 30, 2014 @ 2:27 pm

    Daniel Barkalow: That is an excellent reframing of the issue, and quite possibly one the Government's lawyers have not thought of. (I don't know enough about the case's procedural history to have an opinion as to whether it would be too late for them to raise it for the first time at this stage.)

  16. Tom V said,

    April 30, 2014 @ 3:17 pm

    A classic of American literature discusses this problem, "Pigs is Pigs" by Ellis Parker Butler (at Project Gutenberg).

  17. Piyush said,

    April 30, 2014 @ 10:27 pm

    "This reminds me" of a case reported at the excellent Futility Closet blog, where a person accused of euthanizing a pony was prosecuted under the Small Birds Act which provided that

    2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.

    The prosecutor in the case asserts in his appeal that

    We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

  18. maidhc said,

    May 1, 2014 @ 4:20 am

    So he was catching fish below legal size and then tried to throw them overboard to avoid being prosecuted. Seems like destroying evidence. But then I'm not a lawyer.

  19. Rube said,

    May 1, 2014 @ 7:34 am

    @maidhc: But he wasn't charged with "destroying evidence", he was charged with destroying a "tangible object" under a statute aimed at white collar crime that used paper documents to set its examples of a tangible object.

    What I don't understand is why there wasn't something more obvous to charge him with. God knows how many statutes I've drafted with some kind of inspection power, and I always include an offence provision that would cover this kind of thing.

  20. J. W. Brewer said,

    May 1, 2014 @ 10:13 am

    FWIW, Mr. Yates was also charged with and convicted of violating 18 USC 2232(a), which provides: "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." There seems to be no dispute that the fish in question were "property" within the meaning of this statute.

    Why the Gov't made the initial decision to charge 1519 as well is not clear to me — being convicted of that as well as 2232 does not seem in the event to have resulted in a materially more severe sentence. Sometimes you plead alternative theories at the beginning of a case out of an abundance of caution (although sometimes you subsequently winnow down your own case before trial in order to focus and streamline your pitch to the jury). Sometimes, perhaps especially if you're the Government, you have a mindset that leads you to "pile on" whether or not it makes practical sense in the particular context. Because of the limited scope of the Supreme Court's discretionary grant of review in the particular case, Yates' 2232 conviction is not presently at risk of being vacated or reversed, so the Government now has the burden of defending an aspect of its victory below that with 20/20 hindsight it doesn't really need vis-a-vis the punishment of Mr. Yates, and a risk of a negative outcome that might cause it problems in other cases with different facts where 2232 might not be a readily available alternative. (It is likewise not clear to me if Mr. Yates himself would get much practical benefit from a Supreme Court victory on the 1519 point as opposed to a purely "moral" victory, but he is not rich enough to be required to pay for his own lawyers in a criminal matter, so at least he's not going to be out of pocket for minimal personal benefit.)

  21. Rube said,

    May 1, 2014 @ 10:27 am

    @J.W. Brewer: Thanks, I should have checked that before posting.

    I well understand the desire of police and prosecutors to pile on charges in the hopes of increasing their plea bargain position and so forth, but at some point it becomes offensive, and I think it may have been reached here. You have a provision exactly matched to the offence — why over-reach? And we're talking about a fishing boat captain who tossed some small fish over-board. Not exactly John Gotti.

  22. Dan Lufkin said,

    May 1, 2014 @ 1:43 pm

    Many years ago I had a dog's-body summer job with an industrial chemical company. Every once in a while I'd be sent out to Woolworth's to buy an armload of sheet music. (They had a whole department then.) A couple of pages of music would go in each crate of bulk chemicals when it was shipped. The theory was that the chemicals protected the sheet music from dampness in the ship's hold so that the tariff was music rather than chemicals. It must have worked because the company had been doing this for years and it wouldn't have wasted a dime's worth of sheet music without some benefit.

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