Federal Prosecution of State and Local Corruption: From Sea to Shining Sea

This has been a busy time for the federal prosecution of state and local corruption. In Virginia, federal prosecutors recently convicted former Governor Robert McDonnell and his wife Maureen on multiple felony counts for accepting a series of extravagant gifts from businessman Jonnie Williams in exchange for using the power of the Governor’s office to help promote his company’s products.

In New York, U.S. Attorney Preet Bharara has been on something of a crusade to clean up political corruption in the state legislature in Albany and has brought charges against more than a dozen legislators. This past February Sheldon Silver, the former New York State Assembly Speaker and one of the most powerful politicians in the state, was indicted for taking several million dollars in bribes and kickbacks.

On the opposite coast, Oregon’s governor John Kitzhaber recently resigned amid allegations of a scandal involving his fiancé Cylvia Hayes, who served as Oregon’s honorary first lady. The U.S. Attorney in Oregon is now investigating whether Hayes and Kitzhaber accepted money from companies who hired Hayes in exchange for agreeing to promote the interests of those companies within the state.

And of course the nation’s heartland is not immune. In Illinois, for example, four of the last seven governors have ended up in prison. The latest, former Governor Rod Blagojevich, was convicted in federal court in 2011 for, among other things, trying to cash in on his power to appoint the successor to former U.S. Senator Barack Obama.

Federal prosecution of state and local corruption really took off in the 1970s after Watergate, and raises some interesting issues. When is it appropriate for the federal government to go after state or local government officials, rather than leaving the state to handle its own affairs? After all, the vast majority of criminal prosecutions take place at the state level in the state criminal justice systems, and each state has its own laws against bribery and other corruption. The federal government generally doesn’t prosecute a state’s typical homicides, sex crimes or burglaries – why should corruption be treated differently?

There’s actually a constitutional basis to argue that the federal government should pursue these cases. The Guarantee Clause of the U.S. Constitution, Article 4, Section 4, provides that the “United States shall guarantee to every state in this union a republican form of government.” If “republican form of government” is understood to mean a representative democracy with power derived from the consent of the governed, then federal prosecution of state corruption may fulfill this mandate by removing corrupt state officials who either rose to power illegitimately or are using their powers to the detriment of their citizens. The normal political and legal structures within a state may be fine for handling most crimes, but when it comes to political corruption those structures themselves may be impaired. When that’s the case, there may be a role for the federal government.

Nevertheless, federal prosecutions of state officials can be controversial, particularly when there is a suggestion that the conduct in question was not illegal under their own state law and was simply standard practice or part of their local political culture. In a 1987 case striking down the use of honest services fraud to prosecute state corruption, McNally v. United States, the Supreme Court noted its concern about allowing federal prosecutors to use sweeping white collar statutes to “involve[] the federal government in setting standards of disclosure and good government for local and state officials.” (Congress, apparently not sharing the Court’s concern, reinstated the honest services fraud theory the following year by passing 18 U.S.C. § 1346, and it is still a workhorse in federal prosecutions of state and local corruption – see below.)

This was a common theme in the federal prosecution of former governor McDonnell in Virginia. McDonnell’s defenders protested that under Virginia law it was legal for him to accept many of the gifts that formed the basis of the charges. Virginia is notorious for its lax ethics laws governing public officials, and many believed that McDonnell was unfairly singled out for behavior that was simply “the Virginia way.” Indeed, several former Virginia Attorneys General have filed briefs on McDonnell’s behalf, arguing they would have advised him his conduct was legal and that his federal prosecution is threatening to upend Virginia’s entire political culture.

So when is it appropriate for the federal government to prosecute state or local corruption, and when should the matter be left to the states to handle on their own?

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When Should the Feds Step In?

One reason federal intervention in a state corruption case might be appropriate and even welcome is the presence of a real or perceived conflict of interest among state officials. If corruption exists at a high level in the state government, those who would be charged with investigating and prosecuting it – the state attorney general, for example – may be political allies and close friends of the potential targets. If a city or state is run by a well-entrenched corrupt political “machine” (I’m lookin’ at you, Chicago) it may be unrealistic to expect the local authorities to tackle the corruption among their friends and colleagues. Indeed, the prosecuting authorities in the state may themselves be involved in the corruption.

In Virginia, for example, the state Attorney General Ken Cuccinelli was McDonnell’s running mate and close political ally, and ran to succeed him as governor in 2013. It’s asking a lot to expect a politician in that position to take a dispassionate look at possible corruption and bring a case that would not only bring down his political partner but also likely damage his own chances at winning the governor’s office. Particularly given the widespread attitude in Richmond that McDonnell’s conduct was simply the “Virginia way,” there was little reason to expect that the state would prosecute.

In Oregon, the state attorney general had already opened up a criminal investigation of the governor before the federal investigation began. When the U.S. Attorney in Oregon began a federal inquiry, she asked the state attorney general to put her investigation on hold. Once again, the Oregon attorney general is a political ally of the former governor and had routinely advised the governor on legal issues. Even after she opened her investigation there were some voices suggesting it would be difficult for her to investigate Kitzhaber and that an independent prosecutor should be appointed.

Even where state officials might in fact be able to investigate and prosecute impartially, there is still an issue of a perceived conflict of interest. It’s important that the public have confidence that any potential corruption was investigated thoroughly and appropriately. No matter how fair the Oregon attorney general was, for example, if she were to exonerate Kitzhaber there would always be lingering questions based on the appearance of a potential conflict of interest. A federal investigation removes those concerns.

Another factor in favor of federal prosecution can be the resources available to the federal government. A large-scale public corruption investigation demands a great deal of prosecutorial and investigative time and money. Many state prosecutor’s offices could quickly be overwhelmed by the demands of such a case, particularly considering all of the other state matters they are tasked with handling. Federal prosecutors, with the vast investigative and prosecutorial power of the federal government behind them, are simply better equipped to tackle such a large-scale investigation than their state counterparts.

Particular investigative techniques, such as wiretaps or undercover operations, may be especially useful in corruption investigations. Getting the subjects to discuss their plans on tape can be critical to proving criminal intent  – just ask former Illinois Governor (and current inmate) Blagojevich. Again, these types of undercover investigations and surveillance techniques are extremely time and labor intensive and may be beyond the capabilities of state authorities. But for the FBI it’s right in their wheelhouse, and they have the money and personnel to do it.

Prosecutorial resources and expertise are also an issue. Many state and local prosecutors accustomed to dealing with street crimes may have never handled a major public corruption case. Such cases raise complex legal and factual issues concerning things like proof of corrupt intent, not found in more typical state criminal law fare. The U.S. Department of Justice recognized the special nature of political corruption investigations by establishing the Public Integrity Section in 1976, with a staff of attorneys who specialize in such cases and travel the country assisting other federal prosecutors who are handling them. DOJ can bring a degree of prosecutorial firepower and experience to such investigations that is beyond the reach of most states.

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The Laws Used to Prosecute State and Local Corruption

Somewhat surprisingly, there are not a lot of federal laws aimed directly at state and local corruption. The principal federal statute covering bribery and gratuities, 18 U.S.C. § 201, applies only to federal public officials. But federal prosecutors have been creative when it comes to putting other federal statutes to work in these cases.

Honest services fraud – perhaps the most popular theory used to prosecute state and local corruption is honest services mail and wire fraud. The mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343) apply to use of the mail, phone lines, or wireless transmissions in furtherance of any “scheme or artifice to defraud.” The statutes are routinely applied to the more typical schemes to defraud victims of money or property, such as a Ponzi scheme. But prosecutors also use mail and wire fraud to prosecute state and local officials for corruption, on the theory that the corrupt acts defrauded the public of its intangible right to the fair and honest services of their public officials.

Honest services fraud has been used to prosecute many state and local officials over the past few decades. At times it has been applied to schemes that appeared more politically sleazy or unethical than criminally corrupt, which led to controversy about the potential breadth of the theory. But in 2010 in Skilling v. United States the Supreme Court limited the statute, ruling that it only applies to conduct that amounts to bribery or kickbacks. Even with this limitation, though, it remains an important weapon for federal prosecutors attacking state or local corruption. Honest services fraud was one of the primary statutes used in the McDonnell prosecution, as well as in the prosecutions of New York state legislators.

Hobbs Act Extortion – another common theory is extortion under color of official right under the Hobbs Act, 18 U.S.C. § 1951. As I have discussed elsewhere, extortion “under color of official right” has been interpreted by the Supreme Court essentially to be the equivalent of bribery. In the absence of a general federal bribery statute that applies to state and local officials, Hobbs Act extortion is a favorite of federal prosecutors looking at state and local corruption. Along with honest services fraud, Hobbs Act extortion formed the core of the indictment against the McDonnells in Virginia, and the same two statutes also were used in the recent indictment of former New York state Assembly Speaker Sheldon Silver.

Federal Program Bribery – a less commonly used but very powerful law is the federal program bribery statute, 18 U.S.C. § 666. It prohibits theft or bribery by an agent of any organization or state or local government in connection with programs or agencies receiving federal funds. There are certain (and quite modest) minimum dollar requirements involved, but once those are met this statute is a potent anti-bribery tool that can apply not only to state or local government officials but to private individuals as well.

RICO – the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1964, is a statutory behemoth primarily aimed at organized crime. Given the breadth of the statute, however, it is possible to apply it to entities such as a governor’s office, charging that state officials or others conducted the affairs of that office through a “pattern of racketeering activity.” Racketeering activity is defined to include a number of state law crimes, including bribery and extortion. Accordingly, a state law bribery scheme affecting a state or local government, while not violating the federal bribery statute, may be brought as a federal prosecution through the vehicle of RICO.

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Debate over federal prosecution of state and local officials reflects fundamental tensions about the proper balance of state and federal power that have existed since the founding of the nation. There will always be some, such as Governor McDonnell’s defenders in Virginia, who will argue that the federal government should butt out and allow the states to handle their own affairs. But as discussed above, there are many reasons why federal intervention may be necessary and appropriate — and if recent developments are any indication, federal prosecutors are not hesitating to jump in.

“What’s Taking So Long?” Former DC Mayor Vincent Gray and the Pace of White Collar Investigations

The United States Attorney for the District of Columbia, Ronald C. Machen Jr., announced his resignation last week. He leaves with an impressive record of accomplishments from five years at the helm of the nation’s largest U.S. Attorney’s office. Most of the stories about his departure, however, have focused on one matter that he leaves unresolved: the investigation into former D.C. Mayor Vincent C. Gray.

The investigation is focused on irregularities involving Gray’s successful 2010 mayoral campaign. It began shortly after he was elected, when allegations surfaced that a long-shot mayoral candidate in the 2010 race, Sulaimon Brown, was paid by associates of Gray to remain in the race and levy attacks against the incumbent candidate, Mayor Adrian Fenty. Shortly after Gray was sworn in as Mayor, Brown was given a city job paying $110,000 a year, although he was quickly fired when it was revealed he had a criminal record.

The investigation that began with the allegations concerning Brown grew to encompass a number of different aspects of Gray’s campaign, and has led to guilty pleas from six people connected to that campaign. In a major development in March of 2014, D.C. businessman Jeffrey Thompson pleaded guilty to campaign finance violations involving a number of local and national campaigns, including Gray’s.

The documents filed in connection with Thompson’s guilty plea allege that Gray knew about a $650,000 “shadow campaign” that Thompson financed on his behalf and that Gray discussed the off-the-books campaign with Thompson. Thompson’s guilty plea was announced shortly before the D.C. Democratic mayoral primary in 2014, and is widely considered to have played a major role in Gray’s defeat in that primary.

Gray left office in January of 2015. He has consistently denied any wrongdoing and reportedly rejected a plea deal offered by prosecutors last fall. Gray’s supporters, meanwhile, have criticized Machen for allowing the investigation to drag on for so long, leaving a cloud over Gray’s head and possibly costing him the election.

After Thompson’s plea it was widely anticipated that charges against the Mayor himself might soon follow. Yet nearly three months after Gray left office, a year after Thompson’s plea, and four years after the case began, the investigation of the Mayor is still ongoing. Unless something happens in the case this week, Machen will leave office with arguably the biggest public corruption investigation of his tenure left unresolved.

“What’s taking so long?” is a question frequently heard during white collar investigations. It’s possible that the lack of any charges against Gray indicates the investigation has hit a snag, and it’s certainly possible that Gray will not be indicted at all. But it’s risky to try to divine too much from delay alone. A number of factors, many beyond the prosecution’s control, can cause white collar investigations to go on for what may seem an unusually long time.

The Nature of White Collar Investigations

A white collar investigation is an organic, developing thing. If prosecutors had all the information about the potential offenses and defendants up front, it would be relatively straightforward to put all the witnesses in the grand jury, ask them all the relevant questions, and proceed expeditiously. But white collar prosecutors seldom have that luxury.

This is one of the principal ways white collar investigations differ from, say, an investigation of a bank robbery or a homicide. “Street crime” investigations generally begin when it’s pretty clear that a crime has been committed and the universe of potential charges is relatively well defined. Within those parameters, the task generally is to assemble sufficient evidence to prove that a particular defendant committed the crime.

In a white collar case, by contrast, the investigative task frequently is to determine whether a crime has been committed at all. The scope of the possible charges and potential defendants may be much less clear at the outset, and likely will evolve as the investigation proceeds. There are frequently many shades of gray (no pun intended) involved when investigating more nebulous criminal concepts such as fraud and corruption. This can result in a more wide-ranging and prolonged investigation.

Considering the Mayor Gray investigation as an example, what began as one relatively straightforward set of allegations concerning Sulaimon Brown apparently blossomed into a wide-ranging probe of numerous allegations of improprieties involving a number of different campaigns and multiple potential defendants. This is not uncommon; as prosecutors dig more deeply into a corrupt institution, they frequently uncover new leads and unanticipated potential crimes that have to be chased down. If you’re trying to clean house, it’s tough to finish the job when you keep finding new, unopened doors around every corner.

Because the investigation evolves over time, other types of delay also arise. For example, suppose an important witness is called into the grand jury and testifies relatively early in the investigation. As more documents are reviewed or additional witnesses testify, prosecutors may discover new information about which they now need to question that early witness. That may require a return appearance before the grand jury.

This can happen repeatedly during a lengthy investigation. I recall one large public corruption investigation where we had to recall a particular key witness to the grand jury at least half a dozen times over a more than two year period as we continued to discover additional critical information about which we had to question her. Each such appearance, of course, takes time to prepare for and to coordinate with defense counsel, in addition to consuming more time in the grand jury itself.

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The Nature of the Grand Jury

White collar cases frequently rely heavily on the grand jury. In a street crime investigation, law enforcement officers may interview willing witnesses, and victims generally will gladly provide any records and other evidence they have to assist the prosecution. Frequently, much of the investigation can be completed outside of the grand jury room, a much faster and more efficient process.

In a white collar case, by contrast, evidence may be buried in the records of corporations and other institutions that will only yield those records if compelled by a subpoena. Fellow employees in a company, fellow officers in a police corruption case, or a politician’s staff in a political corruption case, all may be reluctant witnesses who cannot simply be interviewed by case agents but must be compelled to appear and testify under oath in the grand jury.

The grand jury is an incredibly powerful body, but the process is necessarily somewhat cumbersome. It takes time to subpoena witnesses, deal with their defense counsel, and arrange for them to appear in the grand jury. Institutions subpoenaed for large numbers of documents likewise will require time to assemble the documents and for their counsel to review them to screen for privileged materials.

And speaking of documents — white collar investigations often are very document intensive. There may be hundreds of thousand or even millions of pages of corporate documents, bank records, telephone records, e-mails, and more that need to be examined. The sheer volume of paper that has to be reviewed and analyzed can definitely slow an investigation down.

Defense Delays

Many white collar investigations involve individuals or companies represented by skilled defense counsel who will vigorously represent their clients, which may involve throwing up roadblocks to the government’s progress. Witnesses subpoenaed to the grand jury may assert various privileges not to testify, and litigating those claims — even those without merit — may take months or even years. If documents are subpoenaed or seized during an investigation, the defense may go to court arguing that the documents are privileged or were obtained improperly and must be returned, preventing investigators from examining them until those claims are resolved.

For example, in the Gray investigation, lawyers for Jeffrey Thompson challenged the seizure of a large number of documents taken from his home and office during the execution of a search warrant. Thompson’s lawyers pursued that claim all the way to the U.S. Supreme Court, delaying the investigation by more than a year.

Another recent example involves the leak investigation and prosecution of former CIA employee Jeffrey Sterling. Prosecutors wanted to obtain testimony from New York Times reporter James Risen concerning whether Sterling was his source for classified information that he published. Risen resisted the government’s subpoenas by claiming a reporter’s privilege not to reveal his sources. The investigation and trial of Sterling were delayed for about four years while Risen’s attorneys unsuccessfully pursued his privilege claims.

Depending on the nature of the documents or testimony involved, it may be reckless, irresponsible, or even impossible for the prosecutors to go forward until such issues are resolved – but resolving those legal battles may result in substantial delays.  And time spent fighting over such legal issues is time not spent examining additional witnesses or otherwise advancing the investigative ball.

 The Nature of White Collar Crimes

White collar crimes frequently boil down to questions of intent. It may be clear that a contractor overbilled the government, but was it really a fraud or simply an accounting mistake? It may be undisputed that a supporter has given gifts to a politician, but was it corrupt or was it simply unseemly or “politics as usual?”

That makes white collar cases particularly challenging to prove. Frequently prosecutors are not trying to prove observable events that took place (as in “who pulled the trigger” or “who had the drugs”) but are trying to prove what was going on in someone’s mind. Absent a confession, proving that may require an exhaustive and time-consuming examination of both witnesses and documents to build a circumstantial case piece by piece, while ruling out any ambiguities, uncertainties, or alternative explanations.

This can be especially difficult in public corruption cases. If a defendant is engaged in a Ponzi fraud scheme, for example, once that scheme comes to light there are usually victims willing to come forward to help the prosecution. They can provide information about their dealings with the defendant, turn over copies of their e-mails and other correspondence, testify about their conversations, and otherwise help the government prove the misconduct in question.

In a public corruption case, however, the crime usually involves a secret deal or transaction (such as a bribe) that neither party wants to be discovered. There are frequently no other witnesses. The “victims” – the general public or the politician’s constituents – don’t know that a crime has occurred and can offer no assistance. Such crimes take place in secret, behind closed doors, often through nods and winks.

The most common way to prove such a case involves painstakingly building successful cases against lower-level players and enlisting their cooperation against other, higher-level defendants – known as moving up the ladder, or using the little fish to catch the big fish. This can be very successful, but it too takes considerable time. Sufficient evidence has to be gathered against one defendant to persuade him or her that it is time to cut a deal. The terms of their plea agreement have to be negotiated and the case has to be brought before a judge for the plea. Following the plea, the cooperator now needs to be further debriefed and possibly put into the grand jury. The process continues, hopefully moving up the ladder towards the ultimate target, but climbing each successive rung may take months.

This appears to be the pattern that prosecutors have been following in the Gray investigation, as they have built successful cases against a number of lower-level players in the Gray campaign in addition to Thompson. But, as noted above, following the Thompson plea the much-anticipated other shoe has yet to drop.

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There’s no way of knowing from the outside what is really going on with the investigation of Vincent Gray. It may well be that the prosecutors have hit some kind of roadblock and are concluding that an indictment would not be appropriate. Or it may simply be that some combination of the factors described above has caused the investigation to drag on for much longer than anyone — including the prosecutors — ever anticipated.

One thing that’s certain is that the prosecutors have no interest in delay simply for delay’s sake.  Delay in a criminal case generally only helps the defense.  Other than Gray himself, there is probably no one who would like to see this investigation completed more than the prosecutors.  Nor does the fact that U.S. Attorney Machen is leaving suggest that the case is in trouble.  U.S. Attorneys and line prosecutors come and go for a variety of reasons, but large investigations like this have a life of their own and do not depend on any one individual.

Regardless of the reasons for the delay, soon the prosecutors are going to start bumping up against potential statute of limitations issues for conduct that may have occurred as early as 2010. One way or another, the investigation of former Mayor Gray should be resolved before too much more time passes.

Update 12/9/15:  The U.S. Attorney’s Office announced today that it would be closing the investigation in the Vincent Gray case without bringing any additional charges.

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The Supreme Court in Yates: The Wrong Response to Overcriminalization

The Supreme Court ruled last week in Yates v. United States that fish are not “tangible objects” within the meaning of a federal obstruction of justice statute. Although many are hailing Yates as a win in the fight against overcriminalization, it’s a Pyrrhic victory at best.

Concerns about overcriminalization – the belief that there are too many criminal laws on the books and too many inappropriate prosecutions – may be addressed in several different ways. We could focus on training prosecutors to do a better job of exercising their discretion in deciding when to bring cases and what crimes to charge.

We also could focus on urging Congress to write criminal statutes that are clear and narrowly focused, and not to respond to seemingly every problem by enacting more criminal sanctions. Ideally, we could persuade Congress to undertake a sweeping overhaul and reform of the federal criminal code.

But the worst way to respond to overcriminalization is for courts artificially to narrow criminal statutes through results-oriented decisions that ignore the plain language of the law and ultimately lead to irrational results. Unfortunately, that’s exactly what the Supreme Court did in Yates.

Yates will be remembered for many things. The different opinions feature some of the strangest bedfellows among Supreme Court Justices in recent memory. It may be the first time a Supreme Court opinion has included two references to Dr. Seuss as well as one to the children’s game of Mad Libs. And it almost certainly set a Supreme Court record for bad puns, as Justices, brief writers, and commentators alike were unable to resist the many opportunities for groaners about fish and fishing. But Yates should not be seen as some kind of milestone in the fight against an out-of-control criminal code.

There’s an old saying that bad cases make bad law. In Yates, a prosecution that seemed excessive led the Supreme Court to adopt a strained and irrational interpretation of a relatively straightforward statute. The outcome will deprive prosecutors of a useful tool in other, more serious cases, and will do absolutely nothing to cure the problem of overcriminalization.

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The Supreme Court’s Decision

The facts of the case are familiar by now. Captain John Yates was fishing in the Gulf of Mexico when an inspector boarded his vessel and discovered about seventy red grouper that were below the legal minimum size. The inspector issued Yates a civil citation and instructed him to keep the undersized fish on ice until he returned to port, where federal officials would seize them. Once the inspector left his boat, however, Yates ordered a crewmember to throw the undersized fish overboard and replace them with larger ones. He also instructed his crew to lie to federal officials about what had happened.

Yates was charged with three crimes, including obstruction of justice under 18 U.S.C. § 1519. That statute provides up to a twenty year penalty for anyone who “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 federal matter. The government charged that Yates violated this statute by destroying a tangible object – the undersized fish – with the intent to obstruct the federal investigation of his violation of the fishing regulations.

Yates’ primary argument was that § 1519, which was passed as part of the Sarbanes-Oxley reforms in the wake of Enron and other corporate scandals, is an “anti-shredding” provision aimed at the destruction of documents and business records. In context, he argued, the term “tangible object” refers only to objects that may store information within them, such as computer hard drives or flash drives. The statute, he claimed, does not cover every kind of tangible object imaginable – and does not cover the destruction of fish.

Writing for a four-Justice plurality, Justice Ginsburg (joined by Chief Justice Roberts and Justices Breyer and Sotomayor) agreed with Yates. Although acknowledging that “tangible object” is not ambiguous on its face, Justice Ginsburg concluded that, considered in context, the term must be given a narrower reading. Because Congress had in mind Enron, Arthur Andersen, and document shredding when it passed the statute, the term “tangible object” should be interpreted to mean only objects “used to record or preserve information.”

The plurality held that canons of statutory construction support this interpretation. The term “tangible object” is preceded by the words “document” and “record,” which suggests it refers to objects that, like documents and records, store information. Similarly, the statute prohibits “falsifying” or “making a false entry in” documents, records and tangible objects. Those verbs, Justice Ginsburg concluded, also support a narrow interpretation of “tangible object:” although one can make a false entry in a computer hard drive, for example, one cannot make a false entry in a fish.

Justice Alito wrote a separate concurrence to emphasize the narrowness of the Court’s opinion. Although he thought it was a very close call, he agreed with the plurality that Yates had the better of the statutory interpretation argument.

In dissent Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas, adroitly gutted the other opinions. (I warned you the fish puns were hard to resist.)   She said the question is really a simple one: does “tangible object” in the statute mean what it means in common, everyday English usage?   She concluded that the answer is “yes,” and that “conventional rules of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible.”

Justice Kagan agreed that Congress was concerned with the destruction of evidence that would impede federal investigations when it passed § 1519. But evidence may take many forms, including not just documents and records but other objects as well. Given the concerns about obstruction of justice, it made sense for Congress to pass a ban on destruction of evidence of any kind, and it used broad language to do so.

The rules of statutory construction relied upon by the plurality and concurrence, Justice Kagan continued, come into play only when there is ambiguity in the statute. Here there is none: “tangible object” is a very broad term, but it is not ambiguous. The plurality and concurring opinions, she argued, are essentially exercises in creating ambiguity where none exists and then resolving it in favor of the defendant. There is no reason to believe, she concluded, that “tangible object” in §1519 means anything other than what it says.

 The Result: a Mixed-Up World Worthy of Dr. Seuss

There is a fundamental incoherence at the heart of the plurality and concurring opinions. The decision narrows the class of evidence to which the obstruction statute applies by holding that “tangible object” in §1519 should be limited to objects that “record or preserve information,” and concludes that class of evidence is limited to objects such as computer hard drives and flash drives.

But all evidence, in whatever form, “records and preserves information.” That’s what makes it evidence. A bloody knife, a stained article of clothing, and a ziplock of drugs all are of value to a federal investigation only because of the information they contain and convey. Information may include words on a page, but may also include an object’s dimensions or physical characteristics; things contained on the object such as fingerprints, bloodstains, or DNA; or simply the fact that the object exists. It would make no sense for Congress to ban destruction of only one form of evidence and not the others.

Suppose the inspector had taken photographs of the undersized fish, given them to Yates, and told him to bring the photos back to port to turn over to authorities along with the fish. Under the majority’s decision, it would now violate §1519 if Yates destroyed the photographs, but not if he destroyed the fish themselves – which are, of course, the best evidence of the violation. An interpretation of a statute that leads to such absurd outcomes should be suspect.

Nor can the Court’s decision be defended on the ground that Congress was concerned with corporate and financial fraud when it passed §1519. Evidence of such fraud is not limited to documents and records. For example, one aspect of the Enron investigation concerned fraudulent accounting transactions involving several Nigerian oil barges. Suppose a target of the investigation, seeking to cover up the transactions by denying the barges ever existed, ordered the barges towed out to sea and sunk. That would obstruct the Enron corporate fraud investigation just as Arthur Andersen’s document shredding did – but now it would not be covered by §1519 because a barge, according to the Court, is not a “tangible object.”

What’s more, although the Court supported its decision by noting that Congress had “trained its attention on corporate and accounting deception and cover-ups,” the Court’s holding does nothing to limit §1519 to such cases. The statute will still apply, for example, in a terrorism case if the suspects destroy their e-mail communications, or in a homicide case if a suspect destroys letters tying him to the victim. The Court claimed that §1519 is aimed only at a particular kind of case, but reached a result that limits the statute only to a particular kind of evidence.

The Yates result is further undermined when one considers how easy it would have been for Congress to use narrower language, if that was truly its intent. If the focus was solely on objects that store information, why not write the statute to say “document, record, or data storage device?” If the intent was for the law to apply only to corporate fraud investigations, why not include those words in the statute? The Court seems to believe that Congress was being deliberately opaque, and then performs mental gymnastics to “discover” Congress’ true meaning. It’s far more likely, as Justice Kagan observed, that Congress simply meant what it said and said what it meant.

  An Ineffective Way to Combat Overcriminalization

Justice Kagan pointed out near the end of her opinion what really seemed to be driving the majority: concern about “overcriminalization and excessive punishment in the U.S. Code.” She agreed that §1519 may be a bad law that sweeps too broadly, but said the remedy is not for the Court to rewrite the law: “we are not entitled to replace the statute Congress enacted with an alternative of our own design.”

It was pretty clear from the oral argument that the prosecution troubled most of the Justices. Interestingly, though, two of the Justices who seemed most concerned at oral argument about prosecutorial discretion and why the case was charged as it was – Justices Scalia and Kennedy – both joined Justice Kagan in her dissent. Although they thought the prosecution was excessive, they recognized that the proper remedy was not to adopt a tortured and unnatural reading of the statutory language.  The dissenters are correct, as evidenced by the fact that Yates will actually do nothing to reduce overcriminalization.

Many of the groups that filed amicus briefs in support of Captain Yates were focused on the problem of overcriminalization. Those groups are now claiming victory, but those claims are misguided. Recall that Yates was charged with three different crimes, and was convicted of two – his other conviction was for violating 18 U.S.C. §2232(a), which prohibits destruction of evidence to prevent its seizure. That felony conviction remains undisturbed.

If the argument is that someone who engages in conduct like that of Captain Yates does not deserve to be prosecuted at all, merely removing one arrow in the federal prosecutor’s quiver will not achieve that result. There are plenty more charges from which to choose – such as §2232(a) — if a prosecutor is so inclined.

Others may point out that charging Yates with §1519 was particularly inappropriate because it is a twenty-year felony. But this is mostly a rhetorical point; no judge or lawyer involved in the case would ever have believed that Yates faced anything close to twenty years. If an over-zealous prosecutor tried to intimidate Yates by threatening to lock him up for twenty years, a defense lawyer likely would laugh in the prosecutor’s face.

As Justice Kagan observed, statutes like §1519 provide a wide range of potential penalties because they apply to a wide range of misconduct. We rely on judges to fashion an appropriate sentence in any given case. The judge in Yates’ case did just that, sentencing him to only 30 days in prison.

What’s more, the decision in Yates does nothing to prevent §1519 from being applied in other trivial cases where a twenty-year felony may seem excessive. For example, as Justice Kagan pointed out, if Captain Yates had destroyed a ship’s log recording the catch, rather than the fish themselves, that could still be prosecuted under the Court’s decision.

So when all is said and done: Yates is still a convicted felon; if another Captain comes along tomorrow and does exactly the same thing he may still be prosecuted and face the same ultimate punishment; and §1519 itself may still be applied in minor cases where it seems clearly excessive, so long as the right kind of evidence is involved. Given all of that, where exactly is the victory in the fight against overcriminalization?

In the meantime, other cases not as trivial as Yates’ will be affected. For example, two friends of the alleged Boston Marathon bomber Dzhokhar Tsarnaev were recently convicted of violating §1519 by taking his backpack, which contained evidence of his involvement in bomb-making, and throwing it in a dumpster. Now that the Court has ruled a backpack is not a “tangible object” under §1519, those convictions likely cannot stand. By imposing a strained interpretation on the statute in Yates, the Court has removed a potentially valuable tool that prosecutors could use effectively in other cases in which all would agree it is completely appropriate.

The Court’s definition of “tangible object” may have led to the desired outcome in Yates’ case, but it leaves behind a statute that draws arbitrary distinctions, ignores common English usage, and makes little sense.

Bad cases make bad law. That’s the true legacy of Yates.

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