By William Hornbeck, ACLR Blog Editor 

There was an interesting moment in the oral argument for Yates v. United States,1 in which Justice Scalia asked the assistant from the Solicitor General’s office if the prosecutor who brought the case in Yates was “the same guy that brought the prosecution in Bond last term?” The comment might have been simply a sarcastic dig from a Justice who has made a career out of biting sarcasm. But I believe it reflects Justice Scalia’s (and the Court’s) concern about overzealous prosecutors—a concern that is rooted in a series of recent cases involving seemingly absurd prosecutions. This blog post will catalog how we got to this point to show why this seemingly minor case about fish touched a nerve with the Justices.

Before examining the beginning of the “absurd prosecutions” line of cases, it is helpful to understand the context of Yates itself. The law at issue in Yates is the Sarbanes-Oxley Act, passed in 2002 to address the abuses of Enron and other companies. The case focuses on the provision of Sarbanes-Oxley that I will call the “Arthur Andersen” provision, which makes it a crime punishable by up to 20 years in prison to “knowingly alter, destroy, mutilate, conceal, cover up, falsify, or make a false entry in any record, document or tangible object” with the intent to impede or obstruct an investigation. Yates was a commercial fisherman from Florida accused by a local officer of catching undersized fish. When the officer ordered Yates to bring the fish to port for inspection, Yates instead threw the undersized fish overboard. Yates was charged with and convicted of “knowingly concealing a tangible object” (to wit, the fish) in violation of the Arthur Andersen provision and sentenced to thirty days.

At the oral argument in Yates, several of the Justices questioned why a prosecutor would ever charge a fish-dumper with a statute targeted at Arthur Andersen types that had a twenty-year maximum sentence. When Justice Ginsburg asked, “Is there anything in any kind of manual in the DOJ that instructs U.S. Attorneys what to do” in this sort of situation, the assistant from the SG’s office responded that “my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecution should charge . . . the offense that’s the most severe under the law.”2 This prompted a series of astonished questions from Justices Scalia, Roberts, Kennedy and Alito that suggested that the Court would consider applying the rule of lenity much more stringently in the future if the background principle was that U.S. Attorneys should prosecute people to the fullest extent of the law under provisions that are hardly compatible with the crime alleged.

The prosecution in Yates calls to mind an earlier prosecution that might be considered the origin of the Supreme Court’s recent concern about runaway prosecutors charging under overbroad statutes. Like Yates, the prosecution involved Enron. Unlike Yates, the defendant was not particularly sympathetic: he was Jeffrey Skilling, the former CEO of Enron who had played a central role in the Enron scandal. But Skilling’s prosecution under the federal “honest services” statute3 (passed in 1988) raised concerns at the Court that the honest services statute was far too broad. After all, most employees have “deprived their employer of the intangible right of honest services,” whether by browsing the Internet when they should be working or by taking breaks that don’t come out of their paycheck. In Skilling v. United States,4 the Supreme Court held that “depriving another of the intangible right of honest services” was not a crime unless it involved bribes or kickbacks, and vacated part of Skilling’s conviction as not falling within their narrowed construction of the statute.

Three years after Skilling, the Supreme Court invalidated another prosecution that didn’t seem to fit within the statute. In Sekhar v. United States,5 a U.S. Attorney brought a prosecution for extortion against a man who threatened to expose an investment fund manager’s extramarital affair unless the fund manager recommended to the fund that they invest in the man’s business venture. While this sounds like a reasonable case for extortion, the federal extortion statute (the Hobbs Act) only forbids using threats to “obtain[] property.”6 The Supreme Court unanimously found that “no fluent speaker of English would say that” the counsel’s advice was “property,” and therefore vacated Sekhar’s conviction.7

Finally, last term the Supreme Court decided the case of Bond v. United States.8 In Bond, a U.S. Attorney brought a prosecution against a woman who poisoned her neighbor’s door handles in retaliation for her neighbor sleeping with the woman’s husband. Bizarrely, the prosecutor chose to prosecute the woman for violating a statute that implemented the Chemical Weapons Convention, signed in the 90s to address rogue regimes like Syria. The Supreme Court held that Bond had not used a “chemical weapon” within the meaning of the statute and therefore vacated her conviction under that count.

It is in this context that the Justices in Yates expressed their frustration and bewilderment at the government’s prosecuting decisions. Understood in this context, Yates is not just a case about fish. Instead, Yates is a case that crystallizes the Supreme Court’s recent frustration that the government, which has so much power to make the punishment fit the crime, has instead repeatedly chosen to prosecute defendants for offenses that Congress could not possibly have intended to include within the statute they passed.