The Fish and the Manual

Yates v. United States had oral arguments today before the Supreme Court. You’ll recall from our summary of the big cases for this Term that Yates is the case of a fisherman who, while at sea, was found by the game warden to have under-sized grouper in his hold, fish that went missing when the catch was inspected again at dock. He was accused of throwing the fish overboard and thus violating the Sarbanes-Oxley Act which according to the Assistant Solicitor General who presented the case to the Court today, forbids “the intentional destruction of ‘all types of physical evidence.'”

The applicable portion of the law is found at 18 U.S.C. § 1519 and reads:

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.

Now, you can read a transcript of the entire oral argument here, but I’d like to call your attention to 28:19-29:4 (start at page 28, line 19, end at page 29, line 4):

JUSTICE GINSBURG: Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys what to do when there are these overlapping statutes?

MR. MARTINEZ: Your Honor, the ­­ my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge ­­ once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­ the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle. In this case that was Section 1519.

I recall that some time ago, we had some discussions about the prosecution of Aaron Swartz, mainly how awful it was that he was over-charged and threatened with the most terrible, severe, awful punishments the law could possibly bring to bear against him, and therefore how awful the prosecutors were that did this and drove a talented, promising young man to suicide.

Turns out, that was policy.

Anyway, both Justices Ginsburg and Scalia go on to ask Martinez, rather incredulously, whether anyone exercises any sort of prosecutorial discretion in a case like this (translated: “Do you people even think about what it is that you’re actually doing?”) and eventually ASG Martinez breaks down and admits that the penalty Yates faced, thirty days, was reasonable and that twenty years would not have been (translated: “Well, no, not right away, we just charge the max for whatever seems like it’s relevant and then we hope to plea it all out — but eventually we did the right thing!”).

Not a whole lot of discussion about whether the game warden should have squeezed the fishes’ tails, which was the defense at the trial court level. But it does sound like the Supremes are not particularly warm to the shape apparent under the blanket of the pleadings — Yates got charged with a bunch of extra crimes because he was a jerk, not because anyone actually thought he was guilty of what those laws were meant to get at.

Image credit: Wikimedia commons.

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.