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A lot of people have their stories about how the criminal law has been Federalized to a ridiculous extent.  Carol Bond had hers; upset when she found out that her best friend had been having an affair with her husband, Bond got some chemicals from the lab where she worked and through Amazon, and spread the mixture on the ex-friend's mailbox, doorknob, and car.  This resulted in the woman getting a mild rash, which was relieved by rinsing it with soap and water.  It also resulted in Federal prosecutors deciding to charge Bond with a violation of the Federal law implementing the Vienna Chemical Weapons Convention.  Her resultant conviction and six-year prison sentence was finally tossed out by the Supreme Court five months ago, on the basis that Congress could not have intended the statute to be used in this fashion.

Well, there must be something in the water that Federal prosecutors drink, because John Yates has an even better story.

Yates, a commercial fisherman, was plying his trade off the coast of Florida when state fish and wildlife officers, helping to enforce Federal rules, boarded his boat and found that his catch - over three thousand fish - included 72 grouper that were too small.  They issued him a citation, but when they inspected his catch when he returned to port, they found only 69 grouper.  One of Yates' crew members confessed that he'd ordered them to throw the undersized fish overboard.

And for that, Yates was indicted for a violation of the Sarbanes-Oxley Act, which was passed after the Enron debacle in 2002, and makes it a crime to destroy "any record, document, or tangible object with the intent to impede, obstruct, or influence" a Federal investigation, even one that hasn't yet begun.

The Supreme Court heard oral argument on the case last week, and there were lots of legal issues floating around, the biggest being whether fish constituted a "tangible object" within the meaning of the statute.

But there was another issue which seemed to occupy the judges, one which none of them voiced precisely, but which could be aptly summarized as:

What the fuck?

John Badalementi was up first, on Yates' behalf, and the argument remained high-ended and academic.  Sure, there was Kennedy's observation that Yates' claim "has considerable force about over criminalizing," and Breyer's that the statute was "far broader than any witness tampering statute, any obstruction of justice statute, any not lying to an FBI agent statute that I've ever seen."  But most of Badalementi's time was spent debating whether there was a difference between a "tangible object" in one section of the law, and "other object" in another section, and other arcane details of the statute.

But then came the turn of Assistant Solicitor General Roman Martinez.  Yates got 30 days for his offense, but could have been sentenced to 20 years.  (The government asked at sentencing for 21 to 27 months.)  "What kind of sensible prosecution is that?" Scalia demanded.  "Who do you have out there that exercises prosecutorial discretion?  Is this the same guy that brought the prosecution in Bond last term?" 

Ginsburg asked what guidance the Justice Department provides prosecutors in decided what offenses to charge, and got the answer anybody who's done Federal criminal work knows:  "The prosecutor should charge the offense that's the most severe under the law."  Alito found this "hard to swallow ...

This statute, as you read it, is capable of being applied to really trivial matters, and yet each of those carry a potential penalty of 20 years, and then you go further and say that it is the policy of the Justice Department that this has to be applied in every one of those crazy little cases.

And Roberts honed in on another aspect of Federal practice:  the power these Draconian statutes give to prosecutors.

But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you you're facing 20 years, so why don't you plead to a year, or something like that. It's an extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.

In Bond, the Court's decision that Congress couldn't have intended the law to be utilized in that fashion was an easy call:  no congresscritter who voted for a law implementing a chemical weapons treaty could have imagined that Bond's actions would have fallen within that scope.  It's quite possible that the Court will use that route in Yates, or decide that a fish isn't a "tangible object" within the meaning of the law.  What the Court probably won't do is what it didn't do in Bond:  address the question of how far the Federal government can go in prosecuting conduct which should be left to the states.  


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