Scalia Weighs In On One of the Most Important Questions in the World of White-Collar Criminal Defense

Justice Scalia asks, "what kind of a mad prosecutor" would bring this case?

Justice Scalia is not a man known for mild opinions. I hear the other Justices have voted him least likely to say “this is a question on which reasonable minds could disagree.”

While a conservative, Scalia has done good work for those charged in criminal cases in recent years. He’s been good on Fourth Amendment issues, the Confrontation Clause, and federal sentencing.

And, at oral argument recently, on what is perhaps the most significant criminal justice issue of the day — how broadly we should interpret criminal statutes — Scalia has turned his considerable intellect again in a defense-friendly way.

How, you ask?

Whether to interpret a criminal statute broadly or narrowly is an intricate question. The “Rule of Lenity” says that criminal statutes should be interpreted narrowly. Yet courts often read in a meta-“Rule of Lenity” that says that the Rule of Lenity itself should be interpreted narrowly.

Moreover, judicial review of the scope of a criminal statute is tricky. There are thousands of federal criminal statutes on the books and Congress makes more every year. About 95% of the time, people charged with federal crimes plead guilty. Courts are highly resistant to litigate the meaning and breadth of a federal criminal statute before trial, which means that challenges to the interpretation of a statute are possible in a very small number of cases.

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What that means is that prosecutors’ interpretations of federal statutes are highly unlikely to be meaningfully challenged. And, when they are, generally they are interpreted broadly.

Here’s an example from the Fourth Circuit this year on the very broad scope of federal criminal conspiracy law (internal citations omitted) (and see here for a previous discussion of this case):

Over the course of the modern legal era, the pursuit of federal conspiracy convictions has doubtlessly been a boon to United States Attorneys. And it is eminently fair and reasonable to say that the implementing statutes — particularly those that dispense with the commission of an overt act as an element of the crime — sometimes paint with a broad brush. But our system of government and law reposes great and solemn trust in federal prosecutors to exercise their discretion as instruments of right and justice, and it is therefore “for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant.”

How broadly to read the scope of a federal criminal statute came up at the Supreme Court recently. The case was Yates v. United States.

Yates deals with an interesting intersection of Sarbanes Oxley and fishing. A part of Sarbanes Oxley expanded what counts as obstructing a federal investigation – a person commits a crime punishable by up to 20 years in prison if she “knowingly . .  destroys . .  any . . . tangible object.” Any tangible object. Like a fish.

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Mr. Yates was a fisherman. He caught fish that were too small, kept them on his boat, then threw them overboard when the heat was on to him. (It was a big time federal case. You can see why the Department of Justice would want to take this one all the way to our Nation’s highest court.)

Yates was prosecuted by the Department of Justice and sentenced to thirty days in jail.

The issue before the Supreme Court was whether Sarbanes Oxley is supposed to apply to a fisherman throwing fish overboard.

When the attorney from the Solicitor General’s Office stood up to argue, Scalia had pointed questions. Like “what kind of a mad prosecutor” would bring this case?

There’s really probably not a good answer to that question. (A junior one? A bored one?)

More tellingly, Scalia asked how prosecutors are supposed to make decisions about who to prosecute — about who the United States government spends its limited resources deciding is a criminal and should spend time in prison.

The government lawyer responded that the U.S. Attorneys Manual says that prosecutors should charge the most severe offense available.

In the context of Scalia’s already expressed view of the case, that may not be the best answer from a tactical point of view.

Scalia told the government that if the government was going to take that view of things — that it would prosecute the most aggressive case it could whenever it could — the judiciary would have to start being “much more careful” about how it interpreted federal criminal statutes.

Here’s hoping that’s what happens.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.