In a four-one-four decision that is chock-a-block with nautical references and features some sparring about the canons and methods of statutory interpretation, the Supreme Court holds that the “anti-shredding provision” of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1519, applies only to records, documents, or similar types of “tangible objects” used to record or preserve information. Thus, Yates’s conviction—for destroying fish that were evidence of his alleged violation of federal fishing regulations—must be jettisoned: “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.” (Plurality at 2).
Section 1519 was enacted after the Enron accounting scandal. (Plurality at 6). It imposes criminal penalties on a person who “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 or obstruct an investigation. The government argues the plain language of the statute “extends beyond the principal evil motivating its passage” and creates “a general ban on the spoliation of evidence, covering all physical items that might be relevant to any matter under federal investigation.” (Plurality at 6).
A plurality of the Court (Justice Ginsburg, joined by the Chief Justice and Justices Breyer and Sotomayor) rejects this reading. Instead, the plurality adopts a “contextual” reading, citing the statute’s origins, title, and placement in the Act, and employing the canons of construction noscitur a sociis (words grouped in a list should be given similar meanings) and ejusdem generis (a general term following specific words embraces only things of a similar kind). (Plurality at 7-16).
Having used traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes–Oxley Act and § 1519 itself, we are persuaded that an aggressive interpretation of “tangible object” must be rejected. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping. (Plurality at 16-17).
Justice Alito concurs. Using the same basic methodology as the plurality, he concludes that “tangible object” should mean “something similar to records or documents….” (Concurrence at 4). This reading is broader (and, says the dissent (at 16), vaguer) than the plurality’s holding that tangible objects covered by § 1519 are those “involving records and documents, i.e., objects used to record or preserve information.” (Plurality at 14).
The dissent (Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas) rejects every statutory construction tack the plurality and concurrence take. Instead, the dissent agrees with the government about the “broad, but clear” meaning of “tangible object”:
As Congress recognized in using a broad term, giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy. A person who hides a murder victim’s body is no less culpable than one who burns the victim’s diary. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch log for the same reason. Congress thus treated both offenders in the same way. It understood, in enacting § 1519, that destroying evidence is destroying evidence, whether or not that evidence takes documentary form. (Dissent at 7).
The dissent acknowledges the plurality’s concern with the breadth of the statute when read this way (it would “expose[ ] individuals to 20–year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense” (Plurality at 18)); but that concern “brings to the surface the real issue: overcriminalization and excessive punishment in the U.S.Code.” (Dissent at 18).
…[F]or the reasons the plurality gives, .. § 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 I’d go further: In those ways, § 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
But whatever the wisdom or folly of § 1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” [United States v.] Rodgers, 466 U.S. [475,] 484 [(1984)]. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design. (Dissent at 19).
The 4-1-4 vote means there’s no single majority rationale. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ….’” Marks v. United States, 430 U.S. 188, 193 (1977). This rule requires some logical overlap between the plurality and concurring opinions, U.S. v. Heron, 564 F.3d 879, 884 (7th Cir. 2009), so it would appear that Justice Alito’s concurrence controls here given the overlap between his rationale and that in the plurality opinion.
The substantive ruling in this decision will be of interest only to federal practitioners dealing with prosecutions under § 1519. Regardless of whether you practice in federal court, however, you’ll enjoy reading these opinions—particularly if you relish statutory interpretation puzzles (and really, who doesn’t?). As we previously remarked about this case, admire how you will the “terse comprehensiveness” of § 1519, “what plays the mischief with this masterly code is the admirable brevity of it, which necessitates a vast volume of commentaries to expound it.” Here is 40-plus pages of commentaries expounding on the words “tangible object” to enjoy!
Whatever your opinion on the ultimate issue, reading all three of these well-done opinions will provide some lessons in making a strong statutory interpretation argument. But Justice Kagan’s dissent deserves special mention. It is tightly argued and written in clear, brisk language, with many a well-turned phrase. (E.g., “the sum of three mistaken arguments is … three mistaken arguments. They do not get better in the combining.” (Dissent at 18)). It is worth the time to read even if you don’t give a fig about statutory interpretation.