When fish are ‘informational items,’ and part of a record

Jonathan Adler blogged about United States v. Yates, a case the Supreme Court has just agreed to hear. Yates was prosecuted under 18 U.S.C. § 1519, which provides 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 in relation to or contemplation of any such matter …”
  • “shall be fined under this title, imprisoned not more than 20 years, or both.”

Now the twist is that the “tangible object[s]” that Yates destroyed were fish. Yates’s petition (pp. 12-17) argued that the statute didn’t give fair notice that it applied to things such as fish — given the surrounding terms, “tangible object” must refer to objects such as disk drives, which are like records and documents. “Mr. Yates contends that section 1519, enacted as part of the ‘anti-shredding provision’ of the Sarbanes-Oxley Act of 2002, was never intended to prohibit the destruction of non-documentary, non-informational items such as fish and thus did not apply to his alleged destruction of fish,” his petition says.

And indeed there are canons of construction (noscitur a sociis and ejusdem generis) which point in the direction of interpreting general terms more narrowly because of the context in which they are found. At least four Justices seem to be tentatively inclined in Yates’s direction, I suspect, since the petition didn’t allege a split of authority among lower courts, or an issue of national importance that demands to be resolved by the Supreme Court even if the court agrees with the decision below.

But here’s one problem for Yates, I think; in the context of this case, the fish did serve as a “tangible object” that was quite akin to a record (from the Court of Appeals decision; some paragraph breaks added):

On August 23, 2007, John Jones …, a field officer with the Florida Fish and Wildlife Conservation Commission, who was deputized by the National Marine Fisheries Service … to enforce federal fisheries laws, was on an offshore patrol with fellow officers when he encountered [and boarded for inspection] the Miss Katie [Yates' fishing boat]….

While on board, Officer Jones noticed three red grouper that appeared to be less than 20 inches in length, the minimum size limit for red grouper at that time. As a result, Officer Jones decided to measure Yates’s fish to determine whether they were of legal size. Officer Jones separated grouper that appeared to be less than 20 inches so he could measure them. He measured the fish with their mouths closed and their tails pinched. Officer Jones gave Yates the benefit of the doubt on the fish that measured close to 20 inches but separated the fish that were clearly under the legal limit and placed those fish in wooden crates. In total, Officer Jones determined that 72 grouper clearly measured less than 20 inches.

Officer Jones then placed the wooden crates in the Miss Katie’s fish box and issued Yates a citation for the undersized fish. Officer Jones instructed Yates not to disturb the undersized fish and informed Yates that the Fisheries Service would seize the fish upon the Miss Katie’s return to port.

Contrary to Officer Jones’s directions, Yates instructed his crew to throw the undersized fish overboard. Thomas Lemons …, one of the crewmembers, testified that he complied with Yates’s directive. At Yates’s prompting, the crew then took other red grouper and placed them in the wooden crates that had held the undersized fish. After the switch was completed, Yates instructed Lemons to tell any law enforcement officers who asked that the fish in the wooden crates were the same fish that Officer Jones had determined were undersized.

The fish set aside by Jones were thus set aside precisely as a record — as a tangible record of what Jones saw as a violation of the law. Jones could have photographed the fish by a ruler, or video-recorded his inspection process; that would surely have been a record. But, presumably to make it possible to retest the fish later (since fish apparently measure differently depending on how they are held), he actually stored the fish precisely for the information that they contained, information about their length. If Jones had told Yates to store the fish so that they could later be seized and sold off, and Yates destroyed them out of spite, that would not constitute destroying a tangible object that was used as a record. But given that Yates altered the array of saved fish precisely so that the array would have a different “[]informational” value, it seems to me that he was altering a tangible object that did serve as a record.

Now of course the court could say that “tangible object,” read in context, should refer only to the sort of object that is customarily used as a form of record or document. Or it could say that “tangible object” means any tangible object. But if it reads “tangible object” as a tangible object that, like a record or document, has been used or gathered together in order to convey information — much as a record or document does — then that seems to cut against Yates in this case.

In any case, that’s my tentative thinking on this relatively low-profile but very interesting statutory construction matter; I’d love to hear yours.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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