News Release

Supreme Court Rules Against Prosecuting Fisherman Under Post-Enron Anti-Shredding Law; Plurality and Dissent Find Overcriminalization

Washington, DC (February 25, 2015) – This morning, the U.S. Supreme Court issued its opinion in Yates v. United States. This case highlights the problem of overcriminalization and specifically the dangerous consequences stemming from prosecutorial expansion of the laws passed by Congress. In Yates v. United States, the Court today rejected the government's use of an overly broad interpretation of a post-Enron anti-shredding statute (18 U.S.C. §1519), a statute that provides for up to a 20-year prison sentence, to prosecute a fisherman for the disappearance of some undersized fish from his shipping vessel.

While the dissent differed in its interpretation of the anti-shredding statute's language in this case, it noted that the matter "brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code." And the dissent went on, "[s]till and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law – too broad and undifferentiated, with too-high maximum penalties, which gives prosecutors too much leverage and sentencers too much discretion." Indeed, the dissent expressly regrets that this statute is "unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code."

The government's argument, rejected today by the Court, was that the anti-shredding statute's proscription of the following conduct encompassed the missing fish: "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. As Justice Alito explained in his concurrence, "…while many of §1519's verbs— 'alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in'—could apply to far-flung nouns such as salamanders or sand dunes, the term 'makes a false entry in' makes no sense outside of file keeping. Finally, §1519's title—'Destruction, alteration, or falsification of records in Federal investigations and bankruptcy'—also points toward file keeping rather than fish."

NACDL Executive Director Norman L. Reimer, who has been working with a broad array of several groups on the issue of overcriminalization, said: "Although this particular case was decided on statutory construction grounds, the real issue in cases such as this is the scourge of overcriminalization in America. And those are concerns that even the dissent explicitly recognized. Sooner or later, society will have to confront that problem head on. It is noteworthy that Congress is beginning to do so. The National Association of Criminal Defense Lawyers has a long and proud history of working to combat precisely the type of prosecutorial overreach that the Supreme Court put a stop to in the Yates case today. NACDL will continue to oppose overcriminalization, in all its forms, wherever and whenever it rears its head."

NACDL President Theodore Simon said: "It is noteworthy that this case demonstrates the critical importance of public defenders and pro bono amicus counsel. In the absence of the availability of a public defender, Mr. Yates surely would not have had the resources to fight this unjust prosecution all the way to the Supreme Court, leaving prosecutors with the all-too-unfair, and all-too-frequently deployed, leverage to extract a plea bargain where he should never have been prosecuted under the statute in the first instance. That would have left the inappropriate use of this statute intact and as a continuing and unjustified threat to the liberty of all Americans."

William N. Shepherd, Partner at Holland & Knight, LLP, and author of NACDL's amicus brief said: "With today's decision, the Court has slowed prosecutorial overreach. Aggressive prosecution cannot rely on tortured legal analysis but must rest on solid facts and straightforward law. Today's opinion shows that the Court has joined Congress and its Overcriminalization Task Force in addressing this growing 'emblem of a deeper pathology' in criminal justice. The ballooning of today's criminal code means that everyday Americans face new, unforeseen risks of prosecution. Hammurabi is known throughout the ages for the first public criminal code written centuries ago. Today's opinion helps us return to that ideal that citizens will know the laws by which we all must abide."

A link to today's decision in Yates v. United States is available here.

NACDL's amicus February 5, 2014, amicus curiae brief in support of the petition requesting the U.S. Supreme Court to hear the case of Yates v. United States is available here. And NACDL's July 7, 2014, joint amicus brief to the U.S. Supreme Court on the merits is available here.

Continue reading below

A short animated video about the Yates case and the issues it presents is available here.

A link to NACDL's The Criminal Docket podcast episode featuring Bill Shepherd on the Yates case is available here.

To learn more about NACDL's extensive work on the problem of overcriminalization in America, please visit

Featured Products


Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.