Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization (Inside

One misapplication of criminal law is the overly broad expansion of criminal statutes by prosecutors, such as the statute involved in the case of Yates v. United States.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

One way or another, NACDL has been grappling with the problem of overcriminalization for nearly a decade. Flawed statutes that fail to prescribe an adequate intent, or mens rea, requirement for each element of a crime are a main focus of the Association’s reform efforts. NACDL published a major report on this problem, provided testimony before Congress, opposed draft legislation that fails to provide adequate intent requirements, and persistently seeks a long-term solution.1 Inadequate statutory intent requirements, however, are but one manifestation of overcriminalization. Another equally pernicious misapplication of criminal law is the overly broad expansion of criminal statutes by prosecutors, many of whom think that criminal laws are meant to be stretched as far as creative minds can conceive.

While this problem manifests itself in many contexts, the most recent example is an extraordinarily expansive application of a white collar statutory criminal provision. The law, which was designed to combat a quintessential white collar financial crime, was used against a commercial fisherman who allegedly caught — and discarded — three undersized fish. Hence, the annual White Collar Crime issue of The Champion is a perfect vehicle to examine this pending Supreme Court case, Yates v. United States.2 Before looking at Yates, however, some context is in order because this case is hardly an aberration.

Two years ago this column addressed the same issue, referencing several cases in which prosecutors had unreasonably expanded the criminal law to charge notoriously unpopular clients.3 In one of those cases, the prosecution of former Sen. John Edwards, the federal government received its comeuppance at the hands of a jury that simply would not buy the attempt to apply criminal provisions to behavior that was outside the reach of the statute — the Federal Election Campaign Act.

Another case involved fowl instead of fish. That was the case of United States v. Brigham Oil and Gas, LP.4 Brigham Oil and Gas and several other companies were the subject of a prosecution that was based upon an absurdly broad application of the Migratory Bird Treaty Act originally enacted in 1918 to codify the provisions of a treaty between the United States and Great Britain. The treaty was enacted to protect certain birds from the intentional acts of hunters and poachers. Nevertheless, the government tried to use it to criminally prosecute for the incidental death of birds that were found near reserve pits. Reserve pits are lawful areas near gas and oil drilling operations that are used to contain drill cuttings and other byproducts of the drilling.

In dismissing the case, the district court held that the extension of the Act, which applies to some 836 species, including pigeons, sparrows and crows, would cause “absurd results,” and would transmute countless everyday activities that inevitably result in bird deaths into criminal offenses.5 While the government did not prevail, the prosecution unjustly inflicted enormous expense, public humiliation, and incalculable anxiety upon those who were arrested and charged.

But the occasional judicial setback does not seem to deter the next prosecutor from rummaging among the thousands of federal criminal provisions to invent a new theory of prosecution. And Carol Anne Bond was the perfect target.6 She was unpopular and she had allegedly done something that was detestable. After discovering that her best friend was pregnant with her husband’s child, Carol Bond purportedly sought revenge by placing toxic chemicals on the mistress’s car, mailbox, and doorknob. Although the chemicals could be lethal in large doses, it was undisputed that Bond had no intent to kill, but rather an intent to cause an uncomfortable rash. On one occasion her target touched the chemical on the doorknob and sustained a minor burn that was treated with water.

For this simple assault, in addition to unrelated charges connected to the theft of the mistress’s mail, the government charged Carol Anne Bond with a violation of Section 229 of the Chemical Weapons Convention Implementation Act of 1998, which carries severe penalties, including imprisonment for any term of years, including life, or the death penalty. The Act implemented a treaty designed to deal with war and terrorism. Following a guilty plea that reserved the right to appeal the application of the Act, the case worked its way through the courts. This past June, a unanimous Supreme Court struck back. Chief Justice Roberts, writing for the Court, noted that the government’s reading “would transform the statute whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime thus reaching the simplest of assaults.”7 The chief justice further wrote, “[t]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard or treat a local assault with a chemical irritant as deployment of a chemical weapon.”8 

Now comes the case of John L. Yates. Mr. Yates, a commercial fisherman, was employed as the captain of the Miss Katie. On Aug. 23, 2007, several days into a harvest of red grouper in the Gulf of Mexico, an officer of the Florida Fish and Wildlife Conservation Commission boarded his ship. The officer was acting as a federal deputy for the National Marine Fisheries Service to enforce fish size limit requirements. Following inspection, it was found that 72 fish were slightly under the then prevailing size requirement of 20 inches — the smallest being 18 ¾ inches.9 Yates was directed to retain the fish in the ship’s fish box, and to return to dock where they would be seized and destroyed. It is noteworthy that harvesting undersized fish is not a crime, but rather a civil violation punishable by a fine or a possible suspension of the license to fish.10 

Two days later, after having returned to the dock, the officer again measured the fish and this time determined that only 69 of the 72 grouper measured less than 20 inches. Government allegations, supported by one of the ship’s crewmen and in large measure accepted by the jury, are that Yates attempted to replace the 72 undersized fish prior to returning to dock. That effort, which apparently failed except as to three fish, led to three criminal charges. Yates was charged with (1) destroying property to prevent a federal seizure, in violation of 18 U.S.C. § 2232(a); (2) making a false statement to federal law enforcement officers in violation of 18 U.S.C. § 1001(a)(2); and (3) destroying, concealing, and covering up the undersized fish to impede the federal investigation, in violation of 18 U.S.C. § 1519.11 

In 2011, a jury convicted Yates of the first and third charges. It is the third charge that typifies yet another extraordinary example of a prosecutorial effort to expand a criminal statute far beyond its intended reach. Section 1519 is the anti-shredding provision of the Sarbanes-Oxley Act of 2002, which was enacted as a response to the shredding of audit documents in connection with the infamous Enron case. In a compelling plea against this kind of prosecutorial overreach, NACDL filed an amicus brief that directly addresses the overcriminalization epidemic.12 The brief points out that the Act was explicitly described as “An [a]ct [t]o protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws, and for other purposes.”13 The brief further notes that Section 1519, under which Yates was prosecuted for allegedly throwing three grouper back into the Gulf of Mexico, appears under the subheading “criminal penalties for altering documents,” in Section 801 of Sarbanes-Oxley, short-titled the “Corporate and Criminal Fraud Accountability of Act of 2002.”

The government’s attempt to invoke this anti-document destruction provision against an individual commercial fisherman hinges on its contention that the plain language of the statute is sufficient to support the prosecution, irrespective of context or congressional intent.14 Specifically, the government claims that the phrase “tangible object” in the litany of things that shall not be altered, destroyed, mutilated, concealed, or covered up may include three undersized grouper. Notwithstanding the fact that the actual violation of the size restriction is not a crime and the fact that other criminal charges were available and were invoked to prosecute Yates for trying to replace the original catch, the government seeks to apply a clearly inapplicable criminal provision in order to subject Yates to a 20-year count. This is the quintessential example of executive branch overcriminalization: the naked attempt to shoehorn particular conduct into the ambit of an unrelated statute in order to ratchet up the potential penalty.

Not surprisingly the Yates case has attracted considerable attention, and no shortage of amicus briefs,15 many of which, like NACDL’s brief, urge the Court to tackle the problem of overcriminalization broadly and with a constitutional perspective. Whether the Court will treat this as a narrow matter of statutory construction, or more broadly address the phenomenon of overcriminalization, remains to be seen. But if the lessons of the past are predictive of the future — nothing short of a clear signal from the Court that prosecutorial extension of criminal statutes beyond their intended object is constitutionally unacceptable will slow the government’s continuing engagement in overcriminalization.


  1. Brian W. Walsh & Tiffany M. Joslyn, Nat’l Ass’n of Criminal Def. Lawyers, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (2010), available at www.nacdl.org/withoutintent (report detailing a study of federal criminal lawmaking and the failure of Congress to include meaningful intent requirements in criminal law proposals); Hearing on the Crimes on the Books and Committee Jurisdiction Before the Overcriminalization Task Force of the H. Comm. on the Judiciary, 113th Cong. (2014) (statement of NACDL President Steven D. Benjamin); Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law: Hearings Before the Overcriminalization Task Force of the H. Comm. on the Judiciary, 113th Cong. (2013) (statement of NACDL Executive Director Norman L. Reimer); Defining the Problem and Scope of Overcriminalization and Overfederalization: Hearings Before the Overcriminalization Task Force of the H. Comm. on the Judiciary, 113th Cong. (2013) (statement of NACDL President Steven D. Benjamin); Symposium, Overcriminalization 2.0: Developing Consensus Solutions, 7 J. L. Econ. Pol’y 565 (2011) (On Oct. 21, 2010, NACDL, the Foundation for Criminal Justice, and the Law & Economics Center at George Mason University hosted an all-day symposium on the problem of overcriminalization and potential reforms).
  2. Yates v United States, No. 13-7451 (U.S. April 28, 2014). The case is slated for oral argument on November 5, 2014.
  3. Norman L. Reimer, When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds, The Champion, September-October 2012, at 9.
  4. 840 F. Supp. 2d 1202 (D.N.D. 2012).
  5. Brigham Oil, 840 F. Supp. 2d at 1212. The Court observed that the kind of everyday activities that could result in bird deaths, and hence criminal charges, include cutting brush and trees, harvesting crops, driving a vehicle, owning a building with windows, or owning a cat.
  6. Bond v. United States, 134 S. Ct. 2077 (2014).
  7. Id. at 2091-92.
  8. Id. at 2093.
  9. Brief for Petitioner at 4-5, Yates v. United States, 134 S. Ct. 1935 (April 28, 2014) (No. 13-7451).
  10. Id. Citing 16 U.S.C. §§ 1857(1)(A), (G), 1858(a), (g), 1859(a) (2006).
  11. Brief for Respondent at 8-9, Yates v. United States, 134 S. Ct. 1935 (April 28, 2014) (No. 13-7451).
  12. Brief for National Association of Criminal Defense Lawyers as Amici Curiae Supporting Petitioner, John L. Yates, 134 S. Ct. 1935 (2014) (No. 13-7451). NACDL member William N. Shepherd (Holland & Knight, LLP) wrote the brief, and the brief was joined by the American Fuel and Petrochemical Manufacturers.
  13. Sarbanes-Oxley Act of 2002, PL 107-204, 116 Stat 745. See Brief for National Association of Criminal Defense Lawyers, supra note 12, at 5.
  14. Section 1519 provides: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, 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 or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
  15. Nine amicus briefs were filed in support of Yates, several of which advance a constitutional argument. Amicus briefs were filed by (1) Chamber of Commerce of the United States of America & National Association of Manufacturers, (2) National Association of Criminal Defense Lawyers, et al., (3) Eighteen Criminal Law Professors, (4) Cato Institute, (5) Washington Legal Foundation, (6) Cause of Action, et al., (7) National Federation of Independent Business Small Business Legal Center (8) The Honorable Michael Oxley, and (9) Pacific Legal Foundation, et al. Links to these briefs are available on SCOTUSblog at http://www.scotusblog.com/case-files/cases/yates-v-united-states/.
About the Author

Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

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