SCOTUS: A fish is not a "tangible object"
« previous post | next post »
At least, a fish is not a "tangible object" in the context of 18 U. S. C. §1519:
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.
We noted last year that the U.S. Supreme Court agreed to review the holding of a lower court that a fish counts as a "tangible object" for the purposes of §1519 ("Is a fish a 'tangible object'?", 4/30/2014), and today the U.S. Supreme Court announced a 5-4 decision in Yates v. United States, reversing the lower court's judgment:
While conducting an offshore inspection of a commercial fishing vessel in the Gulf of Mexico, a federal agent found that the ship’s catch contained undersized red grouper, in violation of federal conservation regulations. The officer instructed the ship’s captain, petitioner Yates, to keep the undersized fish segregated from the rest of the catch until the ship returned to port. After the officer departed, Yates instead told a crew member to throw the undersized fish overboard. For this offense, Yates was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U. S. C. §1519. That section provides that a person may be fined or imprisoned for up to 20 years if he “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” a federal investigation. At trial, Yates moved for a judgment of acquittal on the §1519 charge. Pointing to §1519’s origin as a provision of the Sarbanes-Oxley Act of 2002, a law designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation, Yates argued that §1519’s reference to “tangible object” subsumes objects used to store information, such as computer hard drives, not fish. The District Court denied Yates’s motion, and a jury found him guilty of violating §1519. The Eleventh Circuit affirmed the conviction, concluding that §1519 applies to the destruction or concealment of fish because, as objects having physical form, fish fall within the dictionary definition of “tangible object.”
Held: The judgment is reversed, and the case is remanded.
The written opinions are interesting — from Justice Ginsburg, on behalf of Chief Justice Roberts, Justice Breyer, and Justice Sotomayor; from Justice Alito, concurring; and from Justice Kagan, dissenting.
The oral argument in this case is also interesting, and can be found here, in both audio and transcript form.
Theophylact said,
February 25, 2015 @ 3:13 pm
The Kagan dissent is pretty interesting, in that it highlights the fact that the plurality opinion (including Chief Justice Roberts) explicitly says that the meaning of "tangible object" must be interpreted in the context of the act and not as an isolated phrase. This clearly puts pressure on Roberts to maintain consistency when King v. Burwell comes before the Court in March.
Roger Lustig said,
February 25, 2015 @ 3:27 pm
So a flash drive containing photos of the fish or electronic scale readings of their weight would be a "tangible object" but the thing itself is not?
Seems to me that the fish does contain pertinent information: its length, weight, etc. In my field we might call it a primary source…
Theophylact said,
February 25, 2015 @ 3:38 pm
They'd be records of the sort envisioned by Sarbanes-Oxley, yes.
Eric P Smith said,
February 25, 2015 @ 3:42 pm
It certainly seems to be a very peculiar piece of legal drafting. Of course a fish is a tangible object. It can only be held not to be by some very odd legal reasoning. It reminds me of the (perhaps apocryphal) notice that reads:
Jonathan said,
February 25, 2015 @ 3:54 pm
Eric P Smith: No one denies that a fish is a tangible object: the question is whether it should be considered like a record or document (plurality, plus Alito, say no) , while the minority say that doesn't matter.
Theophylact: This cuts both ways, doesn't it? Do you expect Kagan to vote to overturn subsidies in King v. Burwell? What was interesting to me is that neither side ever considered what Congress actually intended when they passed SOX, only what they might have intended by the words they used.
Don said,
February 25, 2015 @ 4:16 pm
My favorite line from the Kagan dissent: "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)."
J. W. Brewer said,
February 25, 2015 @ 4:17 pm
Note that it is statistically unusual for Justices Ginsburg and Kagan to disagree like this (in the Court's 2013-14 session they disagreed on the bottom-line outcome in only 1 out of 10 5-4 decisions, the lowest rate for any pair of justices in that context), and thus, whatever you think of the dueling opinions, refreshing to know that the "usual" left-right alignments do not fully account for the Court's output.
Jonathan Badger said,
February 25, 2015 @ 5:45 pm
This isn't the first time the courts have taken upon themselves to declare strange classifications of marine life. In 1818 in "Maurice v Judd" it was decided that whales were fish (at least for the purposes of taxing whale oil as fish oil).
Theophylact said,
February 25, 2015 @ 7:00 pm
Jonathan: No, not at all. Kagan said that Yates was one of the cases where the dictionary meaning and the context were in perfect agreement. So of course Roberts may say the same thing in Burwell; but practically everyone agrees he'd be wrong.
Daniel Barkalow said,
February 25, 2015 @ 7:19 pm
I think the court was asked the wrong question in this case. They should have considered whether you can store information on a collection of fish by separating them into groups, and whether that information must be retained as part of an investigation. It seems clear that the agent intended the arrangement of fish to be a record of the inspection and told the captain to maintain this record, and the captain altered it (by replacing those fish with other fish).
I'd agree with the majority if the agent hadn't sorted the fish because the captain tossed them. I'd even have said that the reason for upholding the lower court decision was that the agent had organized the fish in a particular way as a part of the investigation, which would imply that the law doesn't apply to disposing of a backpack unless it's been packed with the intent of distinguishing the items it contains from the ones it doesn't.
Francisco said,
February 25, 2015 @ 7:41 pm
Badger, Melville's narrator in Moby Dick famously concludes that whales are fish. Therefore it can be said that a review of the literature yielded precedent and support to the US court's ruling. The finest literature, no less.
Roger Lustig said,
February 25, 2015 @ 9:18 pm
@Francisco: it's the Constitution that's supposed to be prescient, not the Court.
Pflaumbaum said,
February 25, 2015 @ 11:36 pm
A marine taxonomist I used to work with maintained, heedless of its implications for his job security, that strictly speaking there is no such thing as a fish. Convergent evolution has given many sea creatures similar physical features, but taxonomically a salmon, say, is no more closely related to a shark or a lungfish than it is to a cow or you and me. (I may have misremembered the specific examples.)
In other words, either there's no such thing as a fish, or we're all fish. He embraced the former conclusion whereas to me the latter seems more convincing, though arguably more problematic for ordering in restaurants.
Jason said,
February 25, 2015 @ 11:44 pm
Pflaumbaum
Steven J. Gould famously made this argument. Without suggesting any term, such as "swimming animal", that we could use in its place.
The Gould argument of course makes it more acceptable to call whales fish, since the term does not denote a natural kind anyway. I think I shall from now on and refer pedants to Gould's argument.
AntC said,
February 25, 2015 @ 11:51 pm
So the fish are tangible objects, and the 'segregated' place would be tangible. But as at the time of the fisheries officer instructing the captain, the fish were not segregated. In effect the captain was told to make a record (by segregating the fish). Since he didn't, there was no record, so he couldn't be guilty of destroying it.
I am reminded of Lewis Carroll's pig that was accused of deserting its sty [The Hunting of the Snark]. The pig had an alibi that placed it elsewhere, so could not have carried out the act of desertion.
Michael Briggs said,
February 26, 2015 @ 12:51 am
I wonder if any of the learned justices on SCOTUS ever read this parody of an Ontario case:
IN THE SUPREME COURT: REGINA V. OJIBWAY
Blue, J. August, 1965
This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c. 724, s. 2. The facts are not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen's Park on January 2, 1965. Being impoverished and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day, the accused's misfortune was further heightened by the circumstance of his pony breaking its foreleg. In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness. The accused was then charged with having breached the Small Birds Act, s. 2 of which states: "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 learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.
In light of the definition section my course is quite clear. Section 1 defines "bird" as "a two legged animal covered with feathers." There can be no doubt that this case is covered by this section.
Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. 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.
Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.
Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.
Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no consequence to this court.
Counsel relied on the decision In Re Chicadee, where he contends that in similar circumstances the accused was acquitted. However, this is a horse of a different colour. A close reading of that case indicates that the animal in question there was not a small bird, but, in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.
Counsel finally submits that the word "small" in the title Small Birds Act refers not to "Birds" but to "Act", making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O. 1960, c. 725 is just as small. If pressed, I need only refer to the Small Loans Act, R.S.O. 1960, c. 727 which is twice as large as the Large Birds Act.
It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals with feathers as well. Counsel submits that having regard to the purpose of the statute only small animals "naturally covered" with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase "naturally covered" would have been expressly inserted just as "Long" was inserted in the Longshoreman's Act.
Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and a fortiori, a pony with feathers on its back is a small bird.
Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?
Appeal allowed.
Michael Briggs said,
February 26, 2015 @ 1:03 am
Also in Kagan's dissent:
"The plurality searches far and wide for anything—anything—to support its interpretation of §1519. But its fishing expedition comes up empty."
John Walden said,
February 26, 2015 @ 4:50 am
http://en.wikipedia.org/wiki/Board_of_Inland_Revenue_v_Haddock
Michael Watts said,
February 26, 2015 @ 6:19 am
One thing that bothers me about applying this statute to a fish is that the context suggests that it's possible to "make[] a false entry in" the tangible objects to which the statute applies, and it's hard for me to imagine making a false entry in a fish. So, to me, it does appear that this section was drafted without fish in mind. I don't really have a strong opinion here; a fish obviously is a tangible object but that disfluency-as-applied-to-fish seems like a reasonable indication that fish aren't supposed to be included.
Andrew L said,
February 26, 2015 @ 8:33 am
Pflaumbaum:
A salmon is in fact more closely related to you or me (or a cow) than it is to a shark.
(I think lungfish are closer to us than they are to salmon).
Ginger Yellow said,
February 26, 2015 @ 8:51 am
A marine taxonomist I used to work with maintained, heedless of its implications for his job security, that strictly speaking there is no such thing as a fish.
As does the podcast of the same name.
bks said,
February 26, 2015 @ 9:04 am
If there is no such thing as a fish, there is no such thing as a tree by an analogous taxonomic argument. –bks
Jonathan said,
February 26, 2015 @ 9:39 am
Theophylact: "…practically everybody agrees." Based on?
All I'm saying is that the question of what the legislature intended in Yates doesn't really arise in any of the three opinions. All three proceed on various degrees and byways of linguistic/statutory construction. As they have to, since the legislature might have meant almost anything by the words they wrote. The words "tangible object" have a clear meaning, as do the words "established by the State." I will be surprised (but pleasantly so) if the vote in King lines up exactly with the vote in Yates, irrespective of my policy preferences, because I think it would reflect a newfound consistency of the justices which properly ignored their own policy preferences.
Jerry Friedman said,
February 26, 2015 @ 10:19 am
Can I guess that charges such as obstruction with justice and tampering with evidence apply in this case even if Sarbanes-Oxley doesn't?
Jerry Friedman said,
February 26, 2015 @ 10:20 am
"obstruction of justice"
J. W. Brewer said,
February 26, 2015 @ 10:31 am
I haven't systematically tracked Supreme Court rhetoric on the subject over time, but the criticism has been out there for several decades that it is conceptually and psychologically incoherent to talk about (not to mention difficult-to-impossible to establish via empirical inquiry) the subjective "intent" of an entity composed of several hundred different individuals, especially on an issue ("does this apply to fish"?) that it seems highly likely that few if any of them consciously considered before voting to enact the bill into law. It may be that, at least in a case like this, all of the Justices have now been so sensitized to that critique that they avoid rhetoric that overtly focuses on the will o the wisp of collective subjective intent even though some of their predecessors might have done so.
That said, most of the dueling interpretative canons here can be justified as rough proxies for the collective subjective intent that cannot be ascertained directly. In any interesting case, of course, they are comparatively unlikely to point in all direction (one of the great nihilist law professors of the mid-20th-century purported to demonstrate that for every interpretative canon there was an equal and opposite canon that in any given dispute would support a different outcome). Nonetheless, decisions like this do tend to provide an ongoing series of pointers to Congress of the form "if your subjective intent is really to do X, it's a good idea for you to use form of words Y rather than form of words Z if you want the courts to act in accordance with what you intended."
chris said,
February 26, 2015 @ 10:39 am
@Jerry Friedman: Yes, but the issue is that Sarbanes-Oxley establishes *higher* penalties for certain forms of obstruction than for ordinary obstruction.
@Michael Watts: I don't think it's necessary that every single verb apply; committing *any* of those acts is sufficient. And fish certainly can be altered, destroyed, mutilated, concealed, or covered up.
Although you could maybe make an argument that the fish in this case were none of these things, they were merely discarded. But while not every case of throwing a fish back in the ocean is concealment or a coverup, it seems pretty clear that in this instance it was.
Furthermore it seems completely plausible to me that the statute was intended to apply to both the paper trail, and the underlying physical evidence in the form of tangible objects, which is exactly what the fish were.
If anything, it's the exclusion of intangible records that seems odd; why exclude, e.g., the deletion of incriminating emails? (Unless there is a separate section intended to cover destruction of intangible evidence.)
J. W. Brewer said,
February 26, 2015 @ 10:47 am
@Jerry Friedman: as I mentioned in a comment on last year's post on this thread (linked above) Yates was convicted at trial of a separate crime for the same destruction of evidence, and the validity of that conviction was not before the Supreme Court and thus stands. (The Sarbanes-Oxley provision at issue has a greater maximum sentence, but he got sentenced lightly enough it seems — at first glance and without knowing the details — comparatively implausible that he would have gotten a lighter sentence had the Sarbanes-Oxley provision not also been charged.) There was also some discussion at the oral argument about other statutes the government could have charged him with but elected not to (one of which might, for example, have uncontroversially covered the conduct at issue but required the prosecution to prove a theoretically more demanding state-of-mind element for conviction). This statue was supposedly aimed at plugging a hole in the prior law (and it is worth recalling that the criminal conviction of Arthur Anderson in connection with the Enron mess was ultimately thrown out after the Supreme Court concluded the firm qua firm had not been shown to have violated then-existing law), but that hole was not one that would have allowed Yates to act as he did without fear of prosecution.
J. W. Brewer said,
February 26, 2015 @ 10:54 am
Just so people don't have to go back to prior thread, let me cut and paste here the text other statute Yates was convicted under, namely 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." "Property" is not synonymous with "tangible object" (might be broader in some respects and narrower in others) but it apparently covered the fish at issue here.
Theophylact said,
February 26, 2015 @ 11:18 am
For Lenten purposes, capybara are considered to be fish in Venezuela (and Brazil).
Dan Curtin said,
February 26, 2015 @ 11:34 am
Noli me tangere, piscis sum. Or maybe fish are so icky, the SCOTUS doesn't want anyone to touch them?
J. W. Brewer said,
February 26, 2015 @ 1:06 pm
The capybara might seem to be a bit of a stretch (w/o judging anyone else's religious practices), but it may be relevant to the issues here to note that its categorization is only a relevant issue in the first place because "fish" is a category that for Lenten purposes is contrasted to "meat" (i.e. anything qualifying as "fish" is by definition not "meat") rather than being viewed as a subset of "meat," although broader (fish-encompassing) and narrower (fish-excluding) scopes of "meat" are both to some extent out there in use. (I have for my own religious purposes at least once categorized turtle as "fish" for this sort of purpose and would probably do the same for frog legs if I were focused on the issue, but I will admit to having relied on my own conscience rather than directly consulted ecclesiastical authority.)
Ginger Yellow said,
February 26, 2015 @ 2:08 pm
If anything, it's the exclusion of intangible records that seems odd; why exclude, e.g., the deletion of incriminating emails? (Unless there is a separate section intended to cover destruction of intangible evidence.)
Intangible records are captured under "record". "Tangible objects" presumably covers things that are not records (or documents).
J. W. Brewer said,
February 26, 2015 @ 2:09 pm
Also FWIW no fewer than nine amicus briefs were filed taking the pro Yates ("fish don't count") view of the statute with zero taking the pro Government ("fish do count") side. http://www.scotusblog.com/case-files/cases/yates-v-united-states/ provides links to them.* They are mostly the coalition you would expect – some amici who support criminal defendants as a general matter and others who typically support business interests concerned about excessive federal regulation and/or the criminalization of regulatory offenses, plus a few industry-specific groups (the Pacific Legal Fdn brief has a bunch of additional amici like the California Abalone Association). One, however, was submitted on behalf of former Congressman Oxley (the "Oxley" in "Sarbanes-Oxley") saying "that's not what we meant." I'd like to think that no one at the Court took that last one seriously.
*It's not like the government needs the help, but sometimes you do see amicus briefs in this sort of context on behalf of interest groups that believe that their own stakeholders, or even society in general, benefits from a broader rather than narrower scope of federal enforcement authority.
Nathan said,
February 26, 2015 @ 2:21 pm
I should name my next band "Intangible Fish".
David Morris said,
February 26, 2015 @ 2:33 pm
If there's no such thing as a fish or a tree, is there any such thing as anything?
Breffni said,
February 26, 2015 @ 4:29 pm
18 USC 2232(a), quoted by J. W. Brewer, seems to have an even bigger problem than the statute that's the subject of the post: there's no direct object at all for "destroys, damages, wastes, disposes of, transfers" (or for "attempts to destroy" etc.). Are those verbs meant to be read absolutely? – i.e., as "whoever destroys, wastes [etc.] anything for the purpose of preventing or impairing [etc.]"? Seems odd to me, grammatically and semantically.
J. W. Brewer said,
February 26, 2015 @ 5:13 pm
Breffni: I think it's a form of ellipsis that perhaps doesn't get much scholarly attention because no one would use it in ordinary discourse. What's odd about it is at least in part that in more usual sorts of ellipsis, the repeated element (here "such property") would typically be explicit the first time it makes conceptual sense and then "deleted" (in scare quotes because of not wanting to accept Chomskyan metaphysical baggage implied by the verb) in the later places in the sentence, whereas here it's only explicit the third and final time it would make sense but is "deleted" in the earlier locations. Note the same (and equally weird for whatever level of weirdness you assign to the first example) structure in the immediately-following subsection of the statute (2232(b)): "Whoever, knowing that property is subject to the in rem jurisdiction of a United States court for purposes of civil forfeiture under Federal law, knowingly and without authority from that court, 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 impairing or defeating the court’s continuing in rem jurisdiction over the property, shall be fined under this title or imprisoned not more than 5 years, or both."
Jerry Friedman said,
February 26, 2015 @ 5:55 pm
chris and J. W. Brewer: Thanks for answering my question.
David Morris: I notice you expressed your comment in words, despite the difficulty of deciding what is and isn't a word.
Matthew McIrvin said,
February 26, 2015 @ 8:45 pm
These 5-4 splits that are not along party or ideological lines are always interesting.
Michael Watts said,
February 27, 2015 @ 4:16 am
@chris
As I understand it, the idea that the statute can't be applied to fish is defended by reference to the rule of ejusdem generis, about which wikipedia says the following:
This says that the term "tangible object" can only include tangible objects that are metaphysically similar to records and documents, the explicit elements of the list. The fact that the closely-related list of "bad things that shouldn't be done to tangible objects" includes actions that actually cannot be done to fish is just further support for the idea that "tangible objects" don't include fish; it isn't ridiculous at all to think that the class of objects similar enough to records and documents that all the same actions are prohibited only includes objects for which those actions are possible. Similarly, no one is going to tell you that swords aren't "dangerous weapons", but we see that a court may be precluded from categorizing them that way.
David Morris said,
February 27, 2015 @ 4:39 am
J.W. Brewer: You address a comment to David Morris, but I can only presume that there's no such thing as David Morris …
James Wimberley said,
March 1, 2015 @ 5:01 pm
From the majority opinion:
"The contemporaneous passage of §1512(c)(1), which prohibits a person from “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object . .. with the intent to impair the object’s integrity or availability for use in an official proceeding,” is also instructive."
I take it that "other object" here should be construed as "any object that can be used in an official proceeding", which means anything at all, even a sample of gas, and certainly including red grouper. So why wasn't Yates charged under this provision instead? Too clever prosecutors.
Greg Morrow said,
March 2, 2015 @ 2:01 pm
One presumes that the original intent of "tangible object" in this context was "novel thing for keeping records that we haven't yet thought of but which will be absurdly common before Congress gets around to updating this legislature, like, I dunno, brain wave holographs or something."
Matthew Cocking said,
March 4, 2015 @ 6:52 am
I've tried making sense of this post in my head, however I cannot get my head round it. tangible to me means once you've touched it, its real. Therefore a fish IS a tangible object…
Oona Houlihan said,
March 11, 2015 @ 1:59 pm
Yet, the finding is wrong. The defendant did not alter "the fish". The fish in all probability are still there, though by the time may have been eaten, decayed or otherwise destroyed beyond recognition. What the captain ordered to have altered is "a situation". And the act seems -maybe as a form of oversight- to have omitted exactly that possibility: the transfer of an object of proof instead of altering it. It would have made much more sense to charge him with the destruction of evidence and "cover-up" for which, I am sure, there is ample lee-way in any US code whenever needed.