John Yates was a commercial fisherman in the Gulf of Mexico. He was caught by a National Marine Fisheries Service agent with a large number of under-sized red grouper. The agent measured the fish, segregated the undersized fish and directed Yates not to destroy the fish. When the agent was gone, Yates ordered a crew member to throw them overboard. So Yates was busted for destruction of evidence; to wit, a number of under-sized red grouper.
The statute the Feds used was a part of the Sarbanes-Oxley Act of 2002. That’s the federal law enacted in response to the Enron scandal. Among many other things, it forbids the destruction of evidence. Older readers will recall tales of Enron employees and employees of its auditor, Arthur Andersen, shredding boxes of documents in advance of federal subpoenas. §1519 of Sarbanes-Oxley makes it a crime to destroy, among other things, a “tangible object.” The U.S. Supreme Court concluded Wednesday that a fish is not a “tangible object.”
Now as a fisherman himself, WC was very surprised to learn a fish is not a “tangible object” WC has handled quite a large number of fish, and they always seemed to him to be both tangible and objects. If they are intangible, they are certainly the smelliest intangible thing WC has ever been around. More, WC has eaten a great many fish. And they certainly seemed to be objects. Salmon grilled in a lemon-pepper marinade, for example, is about as objective as things get.
But the SCOTUS decided otherwise. Justice Ginsburg, writing for a plurality of the court, held:
Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.
WC’s fishery biologist friends would strongly protest. A fish does indeed record and preserve information. Why the otolith alone provides the age of a fish, its growth rate and even its diet. A fish, like the red grouper illegally caught by Captain Yates, absolutely is used to record and preserve information.
But that wasn’t enough for Justice Ginsburg. She and three other justices, with a concurring opinion from Justice Scalia, let Captain Yates off for his violation of Sarbanes-Oxley.
Justice Kagan has a better understanding of both tangible objects and fish. She and three colleagues dissented, holding.
As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” Ante, at 7 (punctuation and citation omitted). A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).[^1]
So Captain John Yates got away with his willful destruction of evidence because five members of SCOTUS are confused about whether a fish is a tangible object.
But there are implications beyond Captain Yates’ under-sized red grouper. Is a bloody knife “used to record or preserve information”? A revolver? So the plurality’s opinion permits them to be destroyed without consequence, at least under §1519?
Red Grouper remain a depleted fish stock, a “species of concern” and continue to be overfished by folks like Captain Yates. WC hopes the National Marine Fisheries Service is not discouraged by this setback. And WC plans to broil quite a tangible salmon filet later this week as a kind of protest of the SCOTUS’s limited understanding.
[^1]: It says something about American culture that Dr. Seuss is regarded by Congress persons, state legislators and U.S. Supreme Court Justices as a primary source and reference. All of them keep pulling that cat out of the hat.