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  • Can you touch a fish? A fisherman says you can’t.

    Red grouper: tangible or intangible?
    Red grouper: tangible or intangible?

    Can you touch a fish? One fisherman says that you can’t. John Yates, the ex-captain of a fishing boat, was convicted under a law that makes it illegal to destroy records, documents, or tangible objects in order to impede a federal investigation, and he’s asking the United States Supreme Court to reverse that conviction because fish aren’t “tangible objects.” He ought to know; he catches them for a living.

    Here’s what happened. In August, 2007, Yates was fishing in the Gulf of Mexico. His boat, the Miss Katie, was boarded by a state conservation officer, who found seventy-two red grouper that were under the legal twenty-inch minimum length, issued a citation for illegal fishing, and ordered the suspect fish put into a crate to be turned over to federal agents when the Miss Katie returned to port.

    When the fishing boat docked, inspectors found that three of the fish in the crate had been switched. A crew member reported that Capt. Yates ordered them to replace the under-sized groupers with longer ones and throw the illegally-caught fish overboard.

    At his trial, Yates insisted that the groupers that got away were really bigger than they seemed, since the conservation officer had measured the fish with their mouths closed, which shortens them. The court didn’t buy this fish story and convicted Yates of one count of disposing of undersized fish to prevent federal agencies from enforcing the law, and one count of destroying the undersized fish to influence a federal investigation. 

    Fish and Wildlife Commission instructions for measuring a fish

    The U.S. Fish and Wildlife Service illustrates approved ways to measure a fish.

    Yates served thirty days in jail for his violation and lost his captain’s license. But he appealed his conviction for destroying undersized grouper because the law he was convicted under was passed to prevent the illegal destruction of business records, not fish.

    Here’s the relevant portion of the 2002 Sarbanes-Oxley Act, a response to the Enron and WorldCom bankruptcy scandals in which company executives destroyed massive numbers of incriminating documents:

    18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

    Whoever 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 . . . shall be fined under this title, imprisoned not more than 20 years, or both.

    Sarbanes-Oxley doesn't define tangible objects, and according to legal convention, words not defined in a statute are to be given their plain or everyday meaning. The government argues that the plain meaning of tangible object, ‘something that can be touched,’ applies to the fish which were destroyed to influence a federal agency investigation.

    But Yates argues that tangible objects must be interpreted more narrowly in the context of the law, which prohibits destroying business records and the tangible objects in which those records are kept (computers, discs, email, ledgers, filing cabinets, and the like). The plain meaning of fish has never been ‘tangible objects containing financial information.’ Plus Yates points out that Sarbanes-Oxley prohibits making “a false entry in any record, document, or tangible object,” and you can’t make a false entry in a fish.

    Dictionaries won’t help to resolve the issue. Merriam-Webster’s online dictionary defines tangible generally, as ‘easily seen or recognized; able to be touched or felt.’ The American Heritage Dictionary adds to this a legal sense, ‘property of a physical nature, such as land, objects, and goods.’ The Oxford English Dictionary has lots of examples of tangible, but none which include the phrase tangible object.

    Sometimes courts interpret the items in a list as semantically related. In the list of practices banned by Sarbanes-Oxley, the common thread is business records. But other times, courts see lists as illustrative rather than exhaustive, and so the high court could read tangible objects as referring not just to objects capable of holding financial data, but any sort of physical evidence. Black’s Law Dictionary even includes the phrase in its definition of evidence: “testimony, documents, and tangible objects” (8th ed., s.v.). Tangible objects would then be evidence of any criminal activity, like a murder weapon, an auditor's report that intentionally misrepresents assets and liabilities, or an undersized fish.

    The Supreme Court hears oral arguments in Yates v. United States on November 5, and it will make a decision in the case later this term, at which time I’ll update this post. In the meantime, we’re left with a curious case of language and law in which a fisherman who denies the physical reality of the fish he catches yet insists that the ones that got away were actually a whole lot bigger is pitted against a government which insists that a law designed to prevent the shredding of phoney spreadsheets and the wiping of hard drives containing evidence of multi-million-dollar fraud can be used against a fishing boat captain who allegedly destroyed three fish (out of a catch of more than 3,000) to avoid a $500 fine.

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