The Supreme Court, Fishing, and the Rule of Lenity

Less than a week after I mourned the slow demise of the Rule of Lenity, the Supreme Court has brought it raring back! Sort of!

United States v. Yates was decided yesterday. The case has been much discussed — including by me — because the Department of Justice prosecuted a fisherman for throwing fish overboard under an obstruction of justice statute enacted as a part of Sarbanes-Oxley. The provision criminalizes destroying a “tangible object” if it’s to thwart a federal investigation.

The question in the opinion is whether a fish counts as a “tangible object.”

If it does, then destroying a fish could land you in prison for 20 years under the right circumstances.

Today, the Court, in a 4-1-4 decision, held that a fish is not a tangible object. Justice Ginsburg, along with Roberts, Breyer, and Sotomayor wrote an opinion reversing the conviction. Justice Alito didn’t join that, but wrote a separate opinion concurring. Justice Kagan wrote a dissenting opinion joined by Scalia, Kennedy, and Thomas.

Scalia was a surprise since, as I wrote about before, he had hard questions for the government — “what kind of a mad prosecutor” would bring this kind of a case.

Alas, he was in dissent here. Sigh.

Anyway, much of the plurality opinion is what one would expect — there’s a long discussion of the history of Sarbanes-Oxley and the use of “tangible object” in other parts of the U.S. Code is extensively mined. But, toward the end of that opinion, you get to this part:

Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object,” as that term is used in §1519, we would invoke the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland v. United States, 531 U. S. 12, 25 (2000) (quoting Rewis v. United States, 401 U. S. 808, 812 (1971)). That interpretative principle is relevant here, where the Government urges a reading of §1519 that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil.

Justice Alito’s opinion, alas, does not discuss the Rule of Lenity — resorting, instead, to other canons of interpretation.

Justice Kagan’s dissent, is kind of funny (for an opinion). For example, she characterizes the plurality opinion as being “on a fishing expedition.”

Get it?

Also, there’s the Dr. Seuss cite.

But for the Rule of Lenity, she is less encouraging.

[W]hen all else fails, the plurality invokes the rule of lenity. See ante, at 18. But even in its most robust form, that rule only kicks in when, “after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’ regarding whether Congress has made the defendant’s conduct a federal crime.” Abramski v United States, 573 U. S. ___, ___ (2014) (SCALIA, J., dissenting) (slip op., at 12) (quoting Moskal v. United States, 498 U. S. 103, 108 (1990)). No such doubt lingers here. The plurality points to the breadth of §1519, see ante, at 18, as though breadth were equivalent to ambiguity. It is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object. Lenity offers no proper refuge from that straightforward (even though capacious) construction.

I’ll look forward to seeing the “breadth is not equivalent to ambiguity” language cited in briefs against me in the future. At least it’s in a dissent.

There is one bit I like in the dissent. At the very end, in a paragraph responding to the argument that Yates couldn’t have had fair notice that his conduct would be a crime. The dissent says what is clearly true (and, sadly, often ignored):

[W]hen an ordinary citizen seeks notice of a statute’s scope, he is more likely to focus on the plain text than (as the plurality would have it) on the section number, the superfluity principle, and the noscitur and ejusdem canons.”

Though if no ordinary citizen would look to those, or other, canons of interpretation to figure out what a statute means, it’s hard to see why one should look at those first — before applying the Rule of Lenity — as Kagan quotes at the start of her discussion.

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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 [email protected] He’d love to hear from you if you’re inclined to say something nice.