Yates v. United States: Something Fishy at the Supreme Court

Update 2/25/15:  In a 5-4 decision the Supreme Court today ruled in favor of Yates, finding that fish are not “tangible objects” under 18 U.S.C. 1519.  I’ll have an analysis of the opinion in next week’s post.

Today the U.S. Supreme Court takes up a federal criminal case, Yates v. United States, that raises one of those questions only a law professor could love: is a fish a “tangible object?”

The defendant John Yates is a commercial fisherman. In August 2007 he was working as the captain of the Miss Katie, a commercial fishing vessel catching red grouper in the Gulf of Mexico. While the boat was in federal waters, a Florida Fish and Wildlife Conservation Commission officer boarded her to conduct a routine inspection on behalf of the National Marine Fisheries Service.

Federal law at the time required harvested red grouper to be at least 20 inches long. The officer noticed several grouper that appeared to be undersized, and proceeded to measure a number of the fish aboard the Miss Katie. He ultimately determined there were 72 undersized grouper on board and issued Yates a civil citation for violating the fishing regulations.

The officer placed the undersized fish in a crate in the ship’s storage area and told Yates to leave the fish there until he returned to port, where the fish would be seized and destroyed. Once the officer left, however, Yates instructed a crew member to throw the undersized fish overboard and replace them with larger ones. When the Miss Katie returned to port, officials inspected the fish again and smelled a rat. A crew member ultimately confessed to making the swap and throwing the illegal fish overboard at Yates’ direction, and said that Yates instructed the crew to lie to federal officials about disposing of the fish.

Yates was charged with three crimes: destroying evidence to prevent its seizure (18 U.S.C. 2232), false statements to a federal official (18 U.S.C. 1001) and obstruction of justice (18 U.S.C. 1519).  At trial the jury acquitted him on the false statements count and convicted him of the other two charges.  The U.S. Court of Appeals for the Eleventh Circuit affirmed. Only the obstruction of justice conviction is now on appeal in the Supreme Court.

The obstruction of justice statute Yates was charged with violating, 18 U.S.C. 1519, provides:

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.

18 U.S.C. 1519 (2002) (emphasis added).  Yates argued at trial and in the Court of Appeals that this statute does not apply to his conduct because the fish that he destroyed were not “tangible objects” within the meaning of this law.  The lower courts ruled against him and upheld his conviction, and the Supreme Court will now hear the case.

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At first glance, this might appear to be a pretty straightforward case.  “Tangible object” is a broad term and seems to refer to any object that has substance or a physical form, which would certainly include a fish. This was essentially the approach taken by the 11th Circuit in its rather cursory analysis: a fish fits the dictionary definition of a tangible object, case closed. Upon closer examination, however, Yates actually has some fairly compelling arguments in his favor.

The statute in question, 18 U.S.C. 1519, is relatively new.  It is part of the Sarbanes-Oxley Act that Congress passed in 2002 in response to the huge corporate financial scandals that had recently taken place, such as Enron and Worldcom. A primary motivation for those laws was the Arthur Anderson case, where the accounting giant shredded millions of pages of Enron documents in anticipation of an upcoming SEC investigation.  In the aftermath of that case there was concern that existing obstruction of justice statutes did not adequately cover a situation where a defendant personally destroyed evidence in anticipation of a possible federal proceeding that had not yet begun.  Accordingly, as part of Sarbanes-Oxley, Congress closed this loophole by amending a number of the obstruction of justice statutes and adding some new ones, including Section 1519.

Yates argues that “tangible object” has to be read in the context of this history and the other language of Section 1519. There are canons of statutory construction with obscure Latin names that say when the meaning of a general term in a statute is unclear, you look to the company it keeps: the other terms in the statute.  For example, if a statute referred to “rods, reels, nets, tackle, and other equipment” and you wanted to know what Congress meant by “other equipment,” you would conclude, considering the terms preceding it, that Congress intended to refer to equipment related to fishing.  You probably wouldn’t read that statute to apply to something like a bulldozer or an office copier, even though those are certainly “equipment” in other contexts.

Relying on the legislative history, Yates argues that Congress had the Arthur Anderson shredding in mind when it passed Section 1519 and that it is primarily an “anti-shredding” provision. He claims the statute is concerned only with record-keeping, as evidenced by the terms “document” and “record,” and not with the broader potential universe of all obstruction of justice. In context, therefore, “tangible object” refers only to objects that can be used to store data or information, such as computer hard drives or thumb drives. Those are the types of “tangible objects” that fit into the same general category as “documents” and “records” — objects that hold information.

Yates also relies upon Section 1519’s use of terms such as “falsify” or “make a false entry in” and argues that these terms further demonstrate the statute is concerned only with objects that can store information.  It makes sense to say one could make a false entry on a computer hard drive, but one cannot falsify or make a false entry in a fish.

The Government’s primary response is that the statute says what it says.  “Tangible object” may be broad, but it is not ambiguous, and the canons of statutory construction that Yates relies upon only come into play where there is ambiguity. Any type of physical object may potentially provide information that is relevant to a federal investigation.  Therefore Congress intended to outlaw the destruction of any type of evidence, if done with the intent to obstruct a government matter. If Congress truly intended the statute to be as limited as Yates suggests, it would have been a simple matter to write “document, record, or other information storage device” — but instead Congress chose the broader term, “tangible object.”

If Yates is correct, the government argues, then 1519 would criminalize a murder defendant destroying his victim’s diary but not destroying the murder weapon. Congress could not have intended such an irrational result. To pick a hypothetical even closer to the actual facts, suppose the officer had taken photos of the fish and told Yates to keep the photos and bring them back to port.  If Yates is correct, Section 1519 would criminalize Yates destroying the photos of the fish but not the fish themselves, which are the best evidence of the violation. Why would Congress pass such a law?

One response to this argument is that destruction of a murder weapon likely could be charged under other obstruction of justice statutes, just not under Section 1519. Indeed, one thing this case highlights is just what a mess the federal obstruction of justice laws are. A number of different obstruction prohibitions have been added piecemeal to the criminal code over the decades, and they overlap and duplicate each other in many instances. It may well be that Yates could have been charged under one of the other obstruction statutes, such as 18 U.S.C. 1512(c), and the prosecutor simply chose the wrong one to use.

A number of organizations and individuals, including the Chamber of Commerce, the Cato Institute, and former U.S. Representative Oxley, who co-authored the Sarbanes-Oxley Act, have submitted briefs in support of Yates. They agree that the statute was aimed only at business record-keeping and not at obstruction of justice in the larger sense. They argue that the government’s position — that Section 1519 applies to any kind of tangible object at all — would represent a dramatic and unwarranted expansion of obstruction of justice laws in cases in which an official government proceeding is not underway or even necessarily contemplated.

At first I thought this looked like an easy win for the Government, but now I’m not so sure. This Court does have a track record of refusing to narrow white-collar statutes by creating limitations that do not appear in the text. The argument usually is that the statute says what it says, and if Congress did not intend that, Congress can fix it. If the Court takes that approach, then Yates will lose.

But the mere fact the Court took the case is good news for Yates; it means at least four of the Justices were troubled enough by his conviction that they wanted to take a look. Perhaps the Court will use this case to reel in Section 1519 and bring a little badly-needed clarity to the law of obstruction of justice.

The Sentence Bob McDonnell Can Expect


UPDATE: on January 6, 2015, McDonnell was sentenced to only two years in prison, a substantial downward departure from the Sentencing Guidelines.  For a detailed discussion of the issues in the sentencing hearing, see my later post here.

Former Virginia Governor Robert McDonnell was convicted in federal district court on September 4, 2014 on eleven counts of corruption. His wife Maureen was convicted on nine counts, including one count of obstruction of justice that applied only to her.  The former Governor will be sentenced on January 6, 2015, and Mrs. McDonnell on February 20.  What kind of sentence can they expect?

McDonnell was found guilty on two counts of conspiracy, three counts of honest services wire fraud, and six counts of obtaining property under color of official right (Hobbs Act extortion). Mrs. McDonnell was found guilty on the two conspiracy counts, two counts of honest services wire fraud, four counts of Hobbs Act extortion, and the single count of obstruction of justice.  Each of these crimes carries a statutory maximum prison sentence: five years for conspiracy and twenty years for all the others.

So McDonnell stands convicted of nine 20-year crimes and two 5-year crimes. Does that mean the judge could impose the maximum for each, stack all the sentences on top of each other, and sentence McDonnell to 190 years in prison? Well, theoretically, yes – but that would never happen and would never hold up on appeal if it did. You don’t get those kinds of sentences unless you’re in Bernie Madoff territory, committing the greatest financial fraud in history (and even then, 150 years seemed a bit excessive for a 71-year-old guy).

At the other extreme, the Judge theoretically could give McDonnell probation and a fine, and no jail time at all. But that also seems very unlikely for a public official convicted of eleven felonies.

Between these extremes, how do we know what kind of sentence McDonnell is realistically facing?  In federal criminal cases we can actually get a pretty good idea, thanks to the Federal Sentencing Guidelines.

Historically, if a defendant was convicted of a twenty-year felony, the judge could impose a sentence of probation, twenty years, or anything in between.  Judges had the discretion to make sentences on multiple counts of conviction run consecutively (effectively stacking them up) or concurrently.  Sentences also could be greatly affected by how a prosecutor chose to charge a particular case. These factors led to concerns about widespread sentencing disparity, where defendants who committed similar crimes would receive dramatically different sentences depending on who their judge was, or what part of the country they were in, or what charges the prosecutor chose to bring.

In response to these concerns, Congress passed the Sentencing Reform Act of 1984, which created the United States Sentencing Commission.  The Commission is tasked with promulgating and regularly updating the  U.S. Sentencing Guidelines,  a detailed and complicated set of rules used to calculate the appropriate sentence in any federal criminal case. The Guidelines take into account the crimes that were committed, all of the details and circumstances of the offenses and related misconduct, and the details of the defendant’s criminal history. If the Guidelines are used correctly, similarly-situated defendants who commit similar crimes will end up facing a very similar sentence.

When first enacted, in order to promote the goal of sentencing uniformity, the Guidelines were mandatory. Unless very unusual circumstances justified a departure, the judge was required to impose a sentence that fell within the relatively narrow range of months in prison provided by the Guidelines.

This limitation on a judge’s historical sentencing discretion proved controversial, and various court challenges to the Guidelines followed. Finally, in the 2005 case of United States v. Booker, the Supreme Court ruled that the mandatory Guidelines regime violated a criminal defendant’s Sixth Amendment rights. The remedy, the Court held, was to leave the Guidelines system in place but make the Guidelines merely advisory rather than mandatory.

What has settled into place post-Booker is a system in which the Guidelines. although no longer mandatory, remain very important.  The sentence recommended by the Guidelines is still the starting point in any federal sentencing. Either side can argue that the judge should impose a higher or lower sentence than that recommended by the Guidelines, but the Guidelines provide the baseline from which that argument takes place.

In fact, even after Booker, data gathered by the Sentencing Commission shows that more than 50% of all federal sentences still fall within the recommended Sentencing Guideline range. In cases where the sentence is lower than the Guidelines, more than 60% of the time it’s because the government requested a lower sentence, based on factors such as the defendant’s cooperation in an ongoing investigation (not a factor in McDonnell’s case).  Judges in the Eastern District of Virginia, where McDonnell will be sentenced, are not known as particularly lenient sentencers, and tend to depart below the Guidelines even less than the national averages.

If we look just at the statistics, therefore, they suggest McDonnell has maybe a 1 in 5 chance of convincing the judge to go below the sentence recommended by the Guidelines.  Of course each case presents unique circumstances relevant to sentencing and the statistics only tell us so much, but they do suggest that McDonnell faces an uphill climb in persuading the judge to be more lenient.

Why do judges still follow the Guidelines?  By the time Booker was decided, judges and attorneys had worked with the Guidelines for nearly twenty years and everyone was familiar with the Guidelines system. Although they now have some additional discretion to vary from the Guidelines in appropriate cases, I think most judges agree with the overall goal of reducing sentencing disparity and believe that, in the majority of cases, the Guidelines do a pretty good job of fulfilling that goal.

There’s also the matter of appeal. When reviewing a sentence on appeal post-Booker, an appellate court considers whether the overall sentence is “reasonable” in light of the goals and requirements of sentencing spelled out in the federal criminal code. Those goals include fashioning a sentence that reflects the nature and seriousness of the offense, considers the defendant’s history, and adequately provides for punishment, deterrence, protection of the public, and rehabilitation of the defendant.

These are essentially the same factors that the Guidelines take into account. If a sentence is within the range recommended by the Guidelines, therefore, it’s going to be very difficult for a defendant to argue on appeal that such a sentence is “unreasonable.” In fact, some appellate courts apply a presumption that a sentence within the Guidelines range is a reasonable sentence. On the other hand, if the judge wants to depart from the Guidelines range (particularly to impose a greater sentence) he or she is to some extent going out on a limb and will need to explain why such a sentence is reasonable.   Sentencing within the Guideline range makes a sentence relatively bulletproof in the appellate court.

So what do the Guidelines call for here?  For you Sentencing Guidelines nerds (I know you’re out there) I’ll spell out my Guidelines calculations below. Bottom line, though, is that if the Judge follows the Guidelines, it looks to me like Bob McDonnell can expect a sentence in the range of 97-121 months, or about 8-10 years.  Maureen McDonnell fares a bit better because she is not an elected official.  Depending on how the judge chooses to handle her Obstruction of Justice conviction, her sentencing range could be 78-97 months or 63-78 months.

Remember, too, that in the federal system now there is no parole – the sentence you get is pretty much the sentence you serve, less some minor potential credits for good behavior.

A sentence of 8-10 years for the former Governor would certainly not be extraordinary. Former Governor Rod Blagojevich of Illinois is currently serving a fourteen-year sentence following his corruption conviction. Another Illinois Governor, George Ryan, served five years for corruption. And William Jefferson, a former Louisiana Congressman who also was tried in Virginia and who raised defenses similar to those raised by McDonnell – that he did not engage in “official acts” in exchange for the bribe payments – was sentenced to thirteen years in prison.

Could the judge be more lenient? Sure – McDonnell’s lawyers will no doubt argue, for example, that the judge should give the former governor credit for all of his years of public service. But most public corruption defendants also have long careers of public service, and that is already baked into the public corruption guidelines to some extent.  They may also rely on McDonnell’s claim that his actions were just the “Virginia way” and that he has been unfairly singled out for prosecution.

Whether the judge finds these arguments persuasive remains to be seen.  As of now, though, it appears that the man who was once considered a potential candidate for the White House may instead spend the equivalent of two presidential terms behind bars.

Update: 12/12/14 – the Washington Post is reporting today that the probation department has calculated a sentencing range for McDonnell with a minimum of 121 months.  That would mean their calculation came out at an adjusted offense level 32, two levels higher than what I calculated below.  Offense level 32 gives a sentencing range of 121-151 months.  If the Post’s information is correct, a possible reason is that the probation department has recommended an additional two level upward adjustment for obstruction of justice under section 3C1.1, based on a finding that McDonnell lied on the stand during the trial.  The Presentence Report is not yet public so we can’t know for sure the basis of their calculations.

Questions?  Comments?  Come up with a different number?  Leave me a comment below.

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Sentencing Guidelines Calculations – Robert McDonnell

Applicable Guideline: 2C1.1

Base offense level for public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2),  cross referencing Guideline 2B1.1(b)(1)(F)]

Defendant was an elected public official: add 4 levels   [2C1.1(b)(3)]

14 + 2 + 10 + 4 = Adjusted Offense Level of 30

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 30, Criminal History Category I: 97-121 months.

Maureen McDonnell 

Applicable Guideline for Corruption Counts: 2C1.1

Base offense level for a public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2), cross referencing Guideline 2B1.1(b)(1)(F)]

14 + 2 + 10 = Adjusted Offense Level of 26 for Corruption counts

Applicable Guideline for Obstruction of Justice: 2J1.1

Base offense level: 14

No applicable specific offense characteristics

Adjusted offense level of 14

Pursuant to 3D1.4(c), because this is more than 9 levels lower than the adjusted offense level for the corruption counts, this count is disregarded in calculating the final offense level, leaving her at an adjusted offense level of 26.

However, the judge could choose to apply the Chapter 3 Adjustment for Obstruction of Justice under 3C1.1, which would add two levels and put her at 28.

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 26, Criminal History Category I: 63-78 months.

Sentence for Offense Level 28, Criminal History Category I: 78-97 months.

Note: it’s unclear whether the First Lady of Virginia is a “public official” within the meaning of 2C1.1(a)(1).  The Application Notes for 2C1.1 suggest that she is because she acts in an official capacity on behalf of the government of Virginia, so that’s how I have calculated it.  See Application Note 1(C).  If the Judge disagrees, however, then her base offense level would be 12 rather than 14, and all calculations get reduced by two levels.