How did Justice Scalia lose his argument that fish are “tangible objects”?

The Question:

Are fish “tangible objects”?

To you, the answer to the above question may seem simple.  However, as you are about to find out, the answer to this question was an incredibly complicated issue for a Florida fisherman and the nine Supreme Court Justices.
Check out all of the intangible fish in my fish tank! Source

Check out all of the intangible fish in my fish tank! Oh wait, there aren’t any. Source

More than 10 miles off the West Coast of Florida, on the morning of August 23, 2007, a Game Warden with Florida Fish and Wildlife Conservation Commission (FWC) boarded Miss Katie, a fishing vessel captained by John Yates of Holmes Beach, Florida.  The events that transpired over the ensuing 4 hours would carry on for more than 7 years and make their way all the way to the Supreme Court, ultimately coming down to one seemingly simple question: Are fish tangible objects?
Justice Scalia’s answer to the above question, along with Justices Kagan, Thomas, and Kennedy, utilized Dr. Seuss to demonstrate that fish are tangible objects, but how did they lose their argument?
In other words, how, in the end, did the Supreme Court rule that fish are not tangible objects?
Are fish “tangible objects”? To you, the answer to the above question may seem simple. However, as you are about to find out, the answer to this question was an incredibly complicated issue for a Florida fisherman and the seven Supreme Court Justices.

Scalia says, “I once caught an intangible fish this big.”

A tale of two Johns

Officer John Jones, a Field Officer for Florida Fish and Wildlife Conservation Commission, had recently been deputized by National Marine Fisheries Service to enforce State and Federal regulations off the coast of Florida.  Monitoring his radar in Federal Waters west of the mouth of Tampa Bay, he spotted a boat called Miss Katie.  Upon approaching the fishing vessel, Jones found three crew members tending to their typical duties.
Unlike a Highway Patrol Officer who generally pulls people over for clearly breaking the law, Marine Patrol Officers board and inspect most vessels they encounter to look for proper safety gear and any clear violations of regulations.  On August 23, 2007, Officer Jones would quickly find evidence of the latter.
John Yates, Captain of Miss Katie, had fished these Gulf Federal Waters many times and knew just where to catch fish.  Working his multiple long lines, each over 8 miles in length and rigged horizontally with evenly spaced baited hooks, Captain Yates and his crew were having a typical haul of red grouper.  In 2007, the regulations called for all red grouper under 20 inches in length to be immediately released back to the Ocean.  Many of the undersized red grouper would already be dead long before coming aboard, but it was still illegal to keep them.  Captain Yates and his crew had grown tired of measuring fish and began to contemplate ways to speed up the process.
Captain John Yates of the vessel Miss Katie. Source

Captain John Yates of the vessel Miss Katie. Source

Scene of the crime

Of the 3,000 red grouper that Captain Yates and his two crew mates caught on this trip, almost all were over 20 inches.  Measuring each fish as the long line came into the boat was a tedious matter that only slowed things down.  The chances of being inspected were slim and any fish shorter than 20 inches in length would take an officer of the law a significant amount of time and effort to find among the piles of legal length dead fish.
Yates made the decision that anything clearly under 20 inches in length was to be thrown back and anything that appeared close to 20 inches was kept.  Heck, considering the low chances of being inspected, Captain Yates even decided to take three of the fish that were obviously under 20 inches in length and hang them on a hook on the wall to cook a little later for dinner.  You can’t get caught for undersized fish if they are in your belly, right?
Red Grouper tastes delicious. Source

Red Grouper tastes delicious. Source

Give ‘em an inch, and they’ll take 72 fish

Boarding Miss Katie, Officer Jones immediately spotted the three undersized red grouper hanging on the wall where Yates had so carelessly left them.  Had Jones not seen those three illegal fish so egregiously hung in plain sight, Jones most likely would have conducted a quick inspection of mandatory safety devices, taken a cursory look at the catch, and had a quick conversation with the crew to make sure everything was going well.  However, given the glaringly obvious negligence of Federal fishing regulations, Officer Jones was trained to conduct a more thorough inspection.
Over the next 4 hours, Officer Jones and his fellow Officer dug through the massive heaps of 3,000+ red grouper.  Officer Jones sorted out those that clearly looked under 20 inches, while overlooking those that appeared close to 20 inches in order to give Yates the benefit of the doubt on any measuring error or minor shrinkage.  In the end, 72 fish were between 18.75 and 20 inches (the 3 fish hanging on hooks on the wall and 69 more in the holding crates).  This equated to about 1 out of every 45 fish being illegal.
Officer Jones wrote Captain Yates a citation for the undersized fish, placed the 72 undersized fish in specifically labeled crates on Miss Katie, and directed Yates to leave the fish in the designated crates for the remainder of his trip.  Officer Yates would meet Miss Katie in four days in Cortez, Florida to seize the undersized fish when the boat and crew returned to their home port.  This was a compassionate measure often taken by officers to allow fishing crews to continue fishing without having to immediately motor back into port for a “minor” infraction.
68 undersized red grouper from another case of fish poaching. Source

68 undersized red grouper from another case of fish poaching. Source

Davey Jones’ Locker

Officer Jones felt that proper justice had been served and he moved on to resume his duties of patrolling Florida and Federal Waters, first making a note in his schedule to meet Miss Katie in Cortez on August 27th.
Captain Yates, however, felt otherwise.  He did not want to haul around a bunch of undersized red grouper for the next 3 days that would clearly lend to the Officer’s ability to enforce his citation.  If the Officers wanted the evidence so bad, they should have taken it with them.
In response, Captain Yates ordered one of his crew to dispose of the undersized fish into the sea.  He decided that before returning to Cortez, they would go through the harvested fish and identify ones just shy of 20 inches and place them in the “evidence” crates.  Once at the port, Captain Yates would claim that he and his crew had originally measured the fish with their mouths open, rather than with their mouths shut as Officer Jones did.  Since Officer Jones had been kind and only documented those fish well below 20 inches, Captain Yates had plenty of fish just under 20 inches with which to work with and fill the “evidence” crates with barely illegal fish.
In due course, a crew member followed Yates’ orders and dumped the undersized fish into the sea and the crates were refilled with undersized fish with lengths much closer to 20 inches.  Four days later, on August 27th, Miss Katie glided into port with her decoy fish in the “evidence” crates.
Legal size grouper fill a crate, unlike the undersized red grouper in Yates "evidence" crates. Source

Legal size grouper fill a crate, unlike the undersized red grouper in Yates “evidence” crates. Source

Grilled or…Poached Grouper?

Officer Jones approached Miss Katie, in all her salty glory, and immediately spotted the “evidence” crates of undersized red grouper nicely set aside.  Officer Jones, always a details oriented person, remeasured all of the fish in the crates to make sure he had not improperly cited Captain Yates for any fish that in fact were of legal length.  Just as before, all of the fish were shorter than 20 inches.  However, something was fishy.  The average of all of the fish came out longer than before.  Had he simply incorrectly measured the fish at sea?  Had the 4 days somehow altered the length of the fish?  Further, why were there only 69 fish rather than 72?  How could this be?
In his haste to cut corners and replace the undersized fish, Captain Yates had not anticipated that Officer Jones would “remeasure” the fish.  Further, Captain Yates had only accounted for the original 69 fish, and had clearly forgotten the three fish he had so cavalierly poached and hung on the wall for dinner!
Upon questioning, Captain Yates did not crack.  On this matter, Yates would later be acquitted for making false statements to Federal Officers.  However, one of his crew members, Thomas Lemons, caved and explained that Captain Yates had ordered him to dispose of the fish and replace them with other fish, hence the discrepancy in fish lengths and numbers.
Not that kind of fish switch. Source

Not that kind of fish switch. Source

Federal Indictments

Just under 32 months later, on May 5, 2010, Yates was criminally charged and indicted for:
1) destroying property to prevent a federal seizure, in viola­tion of §2232(a); and
2) for destroying, concealing, and cover­ing up undersized fish to impede a federal investigation, in violation of §1519.
The provision in §1519 that was used against Captain Yates states that a person may be fined or imprisoned for up to 20 years if the person “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” a federal investigation.
This particular provision is where the term “record, document, or tangible object” came into play.  Because a fish is clearly not a record or a document, then the only way Captain Yates could be prosecuted and found guilty of the second indictment is if a fish is a tangible object.
In order to figure out why the definition of “tangible object” is so ambiguous in this case, it is important to understand why §1519 was enacted in the first place.

 

Bursting Bubbles and Book Cooking

Financial turmoil was the name of the game as we ushered in a new millennium in 2000 and 2001.  The Dot Com Bubble had burst and Enron had gotten incredibly creative at cooking books.  Through all of the turmoil, one thing became incredibly apparent.  Accountants had not only mislead people, but they had also purposely destroyed “documents, records, and tangible objects” to hide misdeeds.  In light of this, the United States government passed legislation in 2002, called the Sarbanes-Oxley Act (SOX), which increased penalties for destroying, altering, or fabricating records in federal investigations.  This placed a 20 year prison sentence on those committing these “white collar” crimes.
False information brought Enron's stock price up and eventually led to its demise. Source

False information brought Enron’s stock price up and eventually led to its demise. Source

“Rain Gear” Collared Crime

The “white collar” law, designed to intimidate CEOs and accountants from cooking the books, was used to indict Captain Yates with a penalty of up to 20 years in prison.  In reference, Jeffrey Skilling, former CEO of Enron, who embezzled billions of dollars, is currently serving a 14 year prison sentence for his role in what led to the creation of this law.
I'm Jeff Skilling, and the length of my prison sentence is going the opposite of up. Source

I’m Jeff Skilling, and the length of my prison sentence is going the opposite of up. Source

Middle District Court Florida

Captain Yates was first prosecuted by the United States District Court for the Middle District of Florida, where District Judge John Steele states, “the Court finds that a reasonable jury could determine that a person who throws or causes fish to be thrown overboard in the circumstances of this case is in violation of §1519.”
Given this, Yates was sentenced to 30 days in jail.

11th United States Circuit Court of Appeals, Atlanta, Georgia

Captain Yates never contested his guilt to §2232.  However, Yates appealed to the 11th United States Circuit Court of Appeals in Atlanta, Georgia, stating that the §1519 “only applies to records, documents, or tangible items that relate to recordkeeping” and “does not apply to fish.”  In response, Circuit Judge Jordan Dubina writes, “we conclude ‘tangible object,’ as § 1519 uses that term, unambiguously applies to fish.”  Therefore, the court upheld the conviction, leaving Yates only option: appeal to the Supreme Court.

Dr. Seuss says that fish are “tangible objects”

Captain Yates entire appeal to the highest court was based on the argument that the term “tangible object” in §1519 did not apply to fish.
Justices Scalia, Thomas, Kagan, and Kennedy felt that the term did apply to fish.  Their written dissent, from the trial that took place in 2014, concluded:
“This case raises the question whether the term “tangible object” means the same thing in §1519 as it means in everyday language—any object capable of being touched. The an­swer should be easy: Yes. The ordi­nary meaning of “tangible object” is “a discrete thing that possesses physical form.” 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).”
One Fish Two Fish Red Fish Blue Fish

Are these fish tangible objects? Source

Supreme Court Decision: Fish are not “Tangible objects”

Despite conjuring up Dr. Seuss and demonstrating that you can touch a fish, it was the five other Justices that prevailed.  Justices Ginsburg, Roberts, Breyer, Sotomayor, and Alito state:
“A tangible object captured by §1519, we hold, must be one used to record or preserve information. We agree with Yates and reject the Government’s unre­strained reading. “Tangible object” in §1519, we conclude, is better read to cover only objects one can use to record. We rely on the principle of noscitur a sociis—a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.  The judgment of the U. S. Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings.”
With this ruling, Yates was exonerated of this indictment, and was not subjected to 30 days in jail.
While Yates may have broken the law, the Supreme Court Justices were not comfortable giving §1519 a broad brush interpretation with which to prosecute anyone who destroys anything.  Because of this, the dissenting Justices agreed with the prevailing Justices in saying:
“§1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”
Justice Scalia during the Yates case speaking with the Solicitor General about government overreach. Source

Justice Scalia during the Yates case speaking with the Solicitor General about government overreach. Source

Ironic twist of fate

In an ironic twist of fate, between 2007, the time when the crime took place, and 2010, the year Federal Prosecutors filed formal charges, the length limit on red grouper in Gulf Federal Waters was shortened to 18 inches.  By the time the case was brought to court, all of Captain Yates undersized red grouper would have been legal.

Article written by Patrick Cooney

 

One response to “How did Justice Scalia lose his argument that fish are “tangible objects”?

  1. You have some of the facts right, but a few not so right. First the ” 3 so-called grouper that Mr Jones found were actually a half inch by half inch pieces of belly meat left over from lunch that was on a bandit real to catch pinfish for the fishing poles while the big line was out. As for the 72 circles short fish they were measured by a state officer deputized as a federal officer but not trained he did not know the federal law for measuring fish in a commercial boat. State and federal law totally different in fish. On shore these fish averaged one quarter of an inch bigger than offshore the fish measured offshore where measured on from iceholds and onshore they went up a metal conveyor then dumped in water in August in Florida. They started thawing out. There’s no difference between a short fish and and another short fish. There’s no reason to replace a 19 and a half inch fish with a 19 and .75 inch fish. As to the greenhorn that made the statement that the fish were thrown overboard, after 4 hours under a metal shed with 6 officers threatening him with federal prison he wrote a statement I don’t want to go to prison the captain made me do it I don’t put much thought into that kind of statement. There’s more but that’s the highlight just wanted to clarify a few things nice read though thanks

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