Friday, November 14, 2014
And Still Another Post on Yates: The Criminal Statute Interpretation Case That Proves to be Bigger on the Inside Than on the Outside (the Tardis Case)
A couple of days ago, Kevin Walsh said that, after listening to the Supreme Court oral argument in Yates v. United States, he was tempering his prediction that the criminal defendant-petitioner in that case would lose unanimously. At the end of the post, Kevin kindly suggested that Rick Garnett (who participated in an amicus brief in support of the petitioner) and I (who posted about Yates earlier here) might have the better of interpretive prediction this time around.
To tell you the truth, I’m not sure what the final outcome will be in Yates. And, while I do come down on the petitioner’s side, I also don’t think that Yates on its peculiar facts presents the most important questions about how to read and apply the extraordinarily-broad obstruction of justice statute invoked here.
However it plays out in this case, I share Kevin’s reaction that the exchanges at the oral argument were remarkable. The uneasiness expressed by several Justices about the breathtaking scope of this criminal statute may foreshadow what will come in later cases. And those remarks suggest an increasing wariness on the Court toward federal prosecutors and over-charging, as well as growing concern about the proliferation, expansion, and severity of federal criminal statutes.
But I’ve jumped into the middle of the story. So let me start at the beginning.
Below the fold, I will briefly sketch out the background to and issue presented in the Yates case, which is presently pending before the Supreme Court.
Then I'll explain how the arguably small and simple Yates case became the entry-point to these broader issues at the oral argument. In the hope that you will keep reading below the fold, I offer here the Tardis teaser about the Yates case being bigger on the inside than the outside.
And once you’ve read some samples of the exchanges at the oral argument in Yates, I believe you’ll be sufficiently intrigued to continue with the discussion of these pressing issues — and to listen to the audio of this rather entertaining oral argument.
Finally, to put the deeper and more troubling issues about this broad obstruction of justice statute into a real-world context, I'll offer a hypothetical about a lawyer and a client who wishes to turn away from a life of sin.
Sarbanes-Oxley § 1519
As part of the Corporate and Criminal Fraud Accountability Act of 2002 — commonly known as Sarbanes-Oxley Act — Congress enacted a new criminal obstruction of justice statute, which is codified at 18 U.S.C. § 1519. This statute authorizes up to 20 years in prison for “[w]hoever 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 . . . .”
Yates v. United States
In Yates v. United States, a commercial fisherman was issued a civil citation during an inspection at sea by a fish and wildlife officer for catching undersized fish. The officer told the fisherman that the fish would be measured again back at the dock. On the way back to port, the fisherman directed his crew to throw the fish overboard. The federal government prosecuted the fisherman for felony obstruction of justice under § 1519. The Supreme Court granted review on the specific question whether § 1519 covers only the destruction of records, documents, and “tangible objects” that are related to record-keeping.
The specific question in Yates thus is fairly narrow and could be said to be rather technical — the meaning of “tangible object” in § 1519. The petitioner argues that, coming in a list right after the words “record” and “document” and appearing in a section that prohibits such acts as “falsifying” and “making a false entry,” the term “tangible object” refers to record-keeping objects, like flash drives, burned CDs or DVDs, internal hard-drives, etc. By contrast, the government contends that § 1519 is all-encompassing, covering not only records but any item of physical evidence, so that “tangible object” should be given a broad and ordinary definition here.
In other words, at first glance, Yates appears to be a simple federal code case invoking the ordinary tools of statutory interpretation to define a legal term in context.
The Yates Case Gets Bigger at Oral Argument
That’s what makes the oral argument last week so remarkable. The listener will soon discover that Yates was but a door that led to a large stadium populated by a multitude of controverted legal issues, all arising from this extraordinarily broad criminal statute. Indeed, much of the discussion at the oral argument had little to do with whether a fish counts as an “intangible object” for purposes of this statute.
To borrow from the long-running science-fiction series Dr. Who, the deceptively small and ordinary Yates box turns out to be a legal Tardis encompassing multiple rooms of issues and stretching wide across legal space. Or, in Dr. Who-speak, Yates proves to be much bigger on the inside than on the outside.
You just have to listen to the oral argument (don’t settle for the transcript). The audio is available here. The lawyers on both sides were masterful, the Justices were candid and thoughtful, and the exchanges were often colorful and drew laughter from the audience.
A few samples:
Justice Breyer, in addressing whether the Court should narrow the statute by interpretation, said § 1591 “at first blush seems 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.” He continued to suggest the statute could be void for vagueness on the branch of that doctrine applying to “that, while they may be clear, are far too broad, well beyond what any sensible prosecutor would even want to prosecute.”
Justice Scalia focused on the possibility of a 20-year prison sentence under § 1519: “He could have gotten 20 years. What kind of a sensible prosecution is that? . . . Is there nothing else you who — who do you have out there that that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?” Bond was the case in which the federal government used a statute implementing an international chemical warfare convention to prosecute a jilted lover who put an irritating substance in her competitor’s mailbox.
When Justice Scalia inquired about whether the Department of Justice provides instruction to the United States Attorneys on how to charge, government counsel replied that “once the decision is made to bring a criminal prosecution, the prosecutor should charge the the offense that’s the most severe under the law. That’s not a hard and fast rule, but that's kind of the default principle. In this case that was Section 1519.”
With that answer, Justice Scalia responded: “Well, if that’s going to be the Justice Department's position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes. . . . Or — how much coverage I give to severe statutes.”
Following up on this, Chief Justice Roberts observed that federal prosecutors are given a considerable advantage by just having the option of making the most severe charge: “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.
Significantly, as he continued to be pressed by these questions, government counsel made a perhaps surprising concession, which could be important in future cases under other circumstances: “I think there are certain questions that come into play with this statute, which are arguably vague, and they don’t have to do with the meaning of tangible object. They have to do with the — the various intent related elements of the statute. For example, what does it mean to impede, obstruct or influence justice? What does it mean to be acting in contemplation of a proceeding, and do you need to know that the proceeding is — is under Federal jurisdiction? Those are the kinds of questions that the lower courts are currently dealing with. They’re not presented in this case.” Along the same lines, government counsel later said that “the statute requires bad intent.”
Near the close of the government’s argument, Justice Alito intervened to say, “you are really asking the Court to swallow something that is pretty hard to swallow. Do you deny that this statute, as you read it, is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of 20 years . . .”
After government counsel referred to prosecutorial discretion not to charge for trivial violation, Justice Kennedy chimed in to say, “Well, it seems to me that we should just not use the concept [prosecutorial discretion] or refer to the concept at all any more.” At that point, government counsel acknowledged “the concerns that the Court has flagged about the potential breadth of this statute” and that they’re serious,” but insisted that’s not the issue in this case.
Deeper Concerns About § 1519: Scope and Intent Questions
As these samples from the oral argument illustrate, Yates opened a window to the growing alarm of many of the Justices about the ever-increasing scope of federal criminal law and the potential for prosecutorial abuse, especially when the government acknowledged a general presumption of charging a criminal defendant under the most severe statute available.
To be sure, the discomfort expressed by several Justices about the over-reach of the new obstruction of justice statute went beyond the question of the meaning of “tangible object” in § 1519. Other and arguably more important questions about the reach of this statute remain to be decided in the future. Must the government prove some type of corrupt intent, that is, knowingly wrongful conduct, to convict someone for destroying or discarding an item that may have evidentiary value? Must the government prove some kind of nexus between the alleged disposal and a reasonably anticipated federal investigation or proceeding? When these questions are asked, concerns about prosecutorial zealotry and over-criminalization comes right to the surface.
Perhaps the most expansive — and thus potentially most troubling — feature of § 1519 is the removal of an express link between supposedly wrongful conduct involving potential evidence and an actual or imminent investigation or proceeding. Federal obstruction of justice statutes traditionally have prohibited destruction of evidence related to an actual or imminent federal investigation or proceeding. Section 1519 does not expressly tie the forbidden conduct of altering or destroying evidence to an actual investigation or proceeding, whether pending or imminent. In this way, as Dana Hill well puts it, § 1519 prohibits “anticipatory obstruction of justice,” that is, conduct that occurs before the actors know of a specific investigation or proceeding but nonetheless undertaken with an intent to obstruct.
Nonetheless, as I’ve argued in an article just been published in the Washington Law Review (here), it is one thing to say that a nexus to a specific federal investigation is not a predicate to a charge under § 1519. That does follow from the statutory text. And when a person expects that an investigation will follow in the foreseeable future, even if not yet underway, and then acts with the wrongful intent to impede that investigation, prosecution may be appropriate.
But it is quite another thing to say that the prospect of an investigation is not a central element to the crime. As a matter of simple logic, one cannot be found to have acted with the specific intent to impede or obstruct an investigation or matter if one could not even anticipate such an investigation.
Thus, for a criminal conviction, the mere fact that the defendant’s disposal of a document or object has the collateral effect of obstructing a federal investigation should not be sufficient. Nor is it enough to say that a federal investigation was conceivable at the time, which of course is almost always true. Accordingly, when a criminal investigation remains entirely speculative, destruction of documents or objects that later prove to be relevant to an investigation should not implicate § 1519. While the government may not need to prove that the accused was aware of an actually pending or imminent investigation, that the accused must have reasonably anticipated such should be integrated into the mens rea element.
Moreover, § 1519 should be read to require conscious wrongdoing before a conviction is imposed, lest it apply to innocent or otherwise appropriate behavior. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court reversed a conviction under another obstruction of justice statute, 18 U.S.C. § 1512, when an accounting firm directed employees to destroy documents. The Court held that the statutory requirement that the defendant have acted “knowingly” and “corruptly” demanded proof of consciousness of wrongdoing. While the word “corrupt” was dropped from § 1519, the statute would reach nearly every episode in which an item is discarded, however innocently, if appreciation of the wrongfulness of the action were left out of the analysis.
Indeed, as one court has held, § 1519 likely would be unconstitutionally vague, unless “construed as requiring proof that defendant acted with specific, wrongful intent.” United States v. Stevens, 771 F. Supp. 2d 556, 562 (D. Md. 2011). Comments by several Justices at the Yates oral argument suggest they too recognize the likely vulnerability of § 1519 to a vagueness challenge in the right case. Demanding conscious contemplation that an act of destruction was wrongful would go a long way toward clarifying the scope of the statute and providing fair notice to those who could run afoul of its prohibitions.
Notably, as set out above, government counsel in Yates said that § 1519 requires “bad intent.” We’ll see if federal prosecutors stand by that concession in future § 1519 cases.
Hypothetical: Turning Away From a Sinful Past
To this point in this post, I’ve spoken about these legal issues in the abstract. My recent article attempts to make these issues concrete by addressing them in the context of stories drawn from real cases, hence the title: The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives Under the Stairs.
So let me illustrate the dangers of over-criminalization and unduly broad application of obstruction of justice statutes with the following hypothetical (adapted from part of the article), which also shows how these statutes impinge on lawyers in faithfully and zealously representing clients:
Many of us at some point in our lives have engaged in moral misconduct that often constituted criminal misconduct, but then reached a turning point and determined to leave that past behind. Once making that decision, abandonment or destruction of the accoutrements of a criminal lifestyle may be undertaken, not to conceal evidence in anticipation of a criminal investigation, but to avoid embarrassment and make a clean break with the past.
Suppose that an individual desires to extricate himself from an addiction to pedophiliac material. Imagine that this client comes to see a lawyer, bringing with him a laptop computer containing child pornography. The client admits that he has a problem and that he has been downloading child pornography, but insists that he has not himself abused any child or created any of the obscene material. The client explains that he has begun psychological counseling and now wishes to separate himself entirely from the child pornography by removing his cache of such files, just as an alcoholic would rid himself of any alcohol in his house.
Based on the client’s narrative, the lawyer has no reason to believe that a criminal investigation has targeted him. And suppose that the lawyer knows from criminal defense experience (or publicly available statistics) that law enforcement fails to uncover the majority of instances of illegal downloading of child pornography and tends to find those who have played a more active role, such as by trading such images on-line.
Certainly the lawyer in such a hypothetical circumstance must not betray the client and report him to law enforcement, which would be antithetical to the fiduciary attorney-client relationship and an egregious breach of professional confidentiality. Moreover, the client is not obliged to self-report nor is the lawyer ethically obliged to encourage him to do so (ordinarily, quite the opposite). Even if the lawyer believes the client morally should take some step to confess the wrongdoing, the lawyer may not preempt the client’s decision and turn him in and the appropriate avenue for confession is unlikely to be law enforcement authorities.
At the same time, the lawyer cannot tell the client to simply hold on to the child pornography-tainted computer, not only because it would be detrimental to the client’s recovery but because the continued possession of such contraband is illegal. And the lawyer cannot take the laptop and turn it over to law enforcement, given the ease with which computer forensics would identify the owner.
So shouldn’t the lawyer advise the client to destroy the laptop (or its hard-drive) and thereby permanently remove the child pornography? Or are the lawyer and client left with the untenable options of either leaving the client to continue in the unlawful possession of contraband or betraying the client to law enforcement?
The courts should long hesitate to read an obstruction of justice statute to effectively forbid a person from ever turning away from past misdeeds and shutting the door by discarding the residue of that past life. To be sure, once an investigation is underway or is reasonably anticipated, it may be too late and steps taken at that point to hide, destroy, or alter that which may constitute evidence of criminal wrongdoing are difficult or impossible to separate from an intent to impede the anticipated investigation.
But when an investigation is only a possibility from the perspective of the actor, who has no awareness of any law enforcement interest or an objective reason to believe a specific investigation into this matter will be forthcoming, then a person should be encouraged to make a break from a criminal past. An individual’s admirable resolve to separate from wrongdoing by tossing aside the instruments and forbidden objects of that wrongdoing should not readily be characterized as the equivalent of a specific intent to obstruct justice.
Back to Yates
While Yates opened the door to these broader questions, they are not directly presented in that case. Government counsel before the Supreme Court made a valiant effort to keep the Justices focused on the particular interpretation issue in the Yates case, while fending off the Justices’ repeated queries about the sheer breadth of § 1519 and its potential abuse in other cases.
As government counsel repeatedly insisted at oral argument, these deeper worries may not lead directly to a conclusion that the statutory term “tangible object” should be read narrowly to exclude an undersized fish. But they are not irrelevant in this case. The “tangible object” issue and the consequent expansion of the statute beyond the shredding of documents context cannot be neatly extricated from the other questions about the breadth of the statute.
The underlying disquiet about the broad scope and other elements of § 1519 may move the Court toward a narrowing construction of the statute in Yates, thereby setting the stage for further restraining the reach of this statute in future cases raising those other questions. As Justice Breyer noted during the oral argument, there may be “four ways of trying to limit” § 1519, but “one way” might be the narrow interpretation that the petitioner argues for in Yates. As a matter of prudence, then, the Court may adopt an interpretive standard and set forth an analytical framework in Yates in anticipation that this § 1519 case is only the beginning.