Supreme Court Rules Against Prosecuting Fisherman Under Post-Enron Anti-Shredding Law

Washington, DC (February 25, 2015) – This morning, the U.S. Supreme Court issued its opinion in Yates v. United States. This case highlights the problem of overcriminalization and specifically the dangerous consequences stemming from prosecutorial expansion of the laws passed by Congress. In Yates v. United States, the Court today rejected the government's use of an overly broad interpretation of a post-Enron anti-shredding statute (18 U.S.C. §1519), a statute that provides for up to a 20-year prison sentence, to prosecute a fisherman for the disappearance of some undersized fish from his shipping vessel.

While the dissent differed in its interpretation of the anti-shredding statute's language in this case, it noted that the matter "brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code." And the dissent went on, "[s]till and all, 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 gives prosecutors too much leverage and sentencers too much discretion." Indeed, the dissent expressly regrets that this statute is "unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code."

The government's argument, rejected today by the Court, was that the anti-shredding statute's proscription of the following conduct encompassed the missing fish: "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. As Justice Alito explained in his concurrence, "…while many of §1519's verbs— 'alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in'—could apply to far-flung nouns such as salamanders or sand dunes, the term 'makes a false entry in' makes no sense outside of file keeping. Finally, §1519's title—'Destruction, alteration, or falsification of records in Federal investigations and bankruptcy'—also points toward file keeping rather than fish."

NACDL Executive Director Norman L. Reimer, who has been working with a broad array of several groups on the issue of overcriminalization, said: "Although this particular case was decided on statutory construction grounds, the real issue in cases such as this is the scourge of overcriminalization in America. And those are concerns that even the dissent explicitly recognized. Sooner or later, society will have to confront that problem head on. It is noteworthy that Congress is beginning to do so. The National Association of Criminal Defense Lawyers has a long and proud history of working to combat precisely the type of prosecutorial overreach that the Supreme Court put a stop to in the Yates case today. NACDL will continue to oppose overcriminalization, in all its forms, wherever and whenever it rears its head."

NACDL President Theodore Simon said: "It is noteworthy that this case demonstrates the critical importance of public defenders and pro bono amicus counsel. In the absence of the availability of a public defender, Mr. Yates surely would not have had the resources to fight this unjust prosecution all the way to the Supreme Court, leaving prosecutors with the all-too-unfair, and all-too-frequently deployed, leverage to extract a plea bargain where he should never have been prosecuted under the statute in the first instance. That would have left the inappropriate use of this statute intact and as a continuing and unjustified threat to the liberty of all Americans."

William N. Shepherd, Partner at Holland & Knight, LLP, and author of NACDL's amicus brief said: "With today's decision, the Court has slowed prosecutorial overreach. Aggressive prosecution cannot rely on tortured legal analysis but must rest on solid facts and straightforward law. Today's opinion shows that the Court has joined Congress and its Overcriminalization Task Force in addressing this growing 'emblem of a deeper pathology' in criminal justice. The ballooning of today's criminal code means that everyday Americans face new, unforeseen risks of prosecution. Hammurabi is known throughout the ages for the first public criminal code written centuries ago. Today's opinion helps us return to that ideal that citizens will know the laws by which we all must abide."

Poorly written and ill-conceived laws become tools of vindictiveness and oppression.

Sarbanes-Oxley is actually very well constructed and applies to businesses that are PUBLICLY TRADED and regulated by the Securities and Exchange Commission. . . and the officers and top management in trusted positions of said companies. Sarbanes-Oxley does not apply to privately held companies, small businesses, individuals, or companies not regulated by the SEC. The section that was applied against Fisherman John Yates was quite specific in that it was referring to documents and objects relating to FINANCIAL and COMPANY RECORDS, such as books, computer hard drives, emails, flash drives, etc. The destruction of physical evidence of any kind NOT related to such Financial Securities and Exchange Commission violations should NOT be covered by Sarbanes-Oxley prosecution, penalties, or imprisonment. It is my opinion the Supreme Court did not go far enough. . . and rule that the statute was not applicable at all for John Yates and his fishing boat. Unless John Yates was an officer or upper management of a publicly traded corporation subject to SEC regulation, he should never have been under the jurisdiction of any Sarbanes-Oxley provisions at all.

Was John Yates an officer of a publicly traded corporation for fishing? Were the fish integral to the running of the corporate books and financial records? I doubt both of these possibilities.

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