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Sep. 8, 2014

In the Supreme Court, plain text means context

In the ordinary criminal case, if an accused's conduct is prohibited by the plain text of a statutory provision, the person is guilty of a crime, right? Not necessarily.

4th Appellate District, Division 2

Michael J. Raphael

Associate Justice, 4th District Court of Appeal

Yale Law School

In the ordinary criminal case, if an accused's conduct is prohibited by the plain text of a statutory provision, the person is guilty of a crime. The text, after all, is the best indication of what the legislature intended to criminalize.

Yet in both the immediate past and upcoming U.S. Supreme Court terms, the court has elected to hear four cases that present the claim that the most straightforward meaning of a particular statutory provision does not control. In each of these cases, the federal Court of Appeals, after little analysis, had found the text's meaning clear and the defendant guilty. Yet, in the Supreme Court, the analysis in each case has grown considerably more complex.

It may be useful to place these cases in two categories. First are cases in which prosecutors have taken a statutory provision and (arguably) applied it to a type of conduct that Congress never intended to be within the law's ambit. Second are cases in which the type of conduct is what concerned Congress, but the text is so sweeping that Congress (arguably) intended there to be a de minimis limitation placed on its scope.

A case from each term falls into each category. In the first ("unintended context") category is the June decision in Bond v. United States, where the court held that the Chemical Weapons Convention Implementation Act does not prohibit a jilted wife's attempt to inflict a rash upon her husband's lover.

The act imposes prison time for using a "chemical weapon," and it defines "chemical weapon" to include "any chemical" that can cause "death, temporary incapacitation or permanent harm to humans or animals."

Carol Anne Bond, a Pennsylvanian, was convicted of that crime due to her scheme to cause her friend, Myrlinda Haynes, to get a rash. After discovering that Haynes had been impregnated by Bond's husband, Bond obtained a readily available chemical, potassium dichromate, which can, in large enough quantities, cause people serious harm or death. Bond spread the chemical on surfaces Haynes was likely to touch, intending only that she get a rash.

Noticing the chemical and mostly avoiding it, Haynes suffered just a minor thumb burn. Yet federal prosecutors charged Bond with two counts of possessing and using a chemical weapon.

The 3rd U.S. Circuit Court of Appeals upheld Bond's conviction upon a simple analysis of the statutory text. To the 3rd Circuit, it did not matter that its reading of the statutory text was "striking" in its "breadth" and turned every "kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache." Congress simply chose to enact a broad prohibition.

In an opinion by Chief Justice John Roberts, the Supreme Court reversed. The court held that the law was ambiguous, but the opinion did not argue that the words of that provision, taken on their own, were unclear. Rather, the court stated, "the ambiguity derives from the improbably broad reach of the key statutory definition given the term - 'chemical weapon' - being defined." The court found that three broader concerns demonstrated this ambiguity.

First, the court relied on the context in which the law arose. The opinion began with a discussion of the "horrors of chemical warfare," the ratification by most countries of the Convention on Chemical Weapons, and Congress's enactment of the law to implement that convention in our country. In that context, even though the law contained "broadly worded definitions," the court had "doubts that a treaty about chemical weapons has anything to do with Bond's conduct."

Second, the court relied on the ordinary usage of the term "chemical weapon." Despite the sweeping statutory definition of that term, the court believed that "an educated user of English would not describe Bond's crime as involving a 'chemical weapon.'" Allowing Bond's conviction would "transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish."

Third, applying "principles of federalism inherent in our constitutional structure," the court held that it was reluctant to conclude that "Congress meant the statute to reach local criminal conduct." The court noted that Pennsylvania had statutes that covered Bond's conduct, and it cited to newspaper accounts of two poisoning prosecutions from that state to demonstrate that the state regularly enforced those laws.

Disagreeing with the majority in a concurring opinion, Justice Antonin Scalia argued that the court improperly took clear statutory text and found it ambiguous in light of extra-textual factors. "[I]t is clear beyond doubt that [the law] covers what Bond did; and we have no authority to amend it," Scalia wrote. (His opinion was a concurrence, rather than a dissent, because he would have invalidated Bond's conviction on the separate ground that Congress lacks an independent power to pass legislation to implement treaties.)

Thus, Bond presented a case where statutory text facially prohibited a defendant's conduct, yet a divided court held that the statute did not extend to the unintended context to which prosecutors applied that text.

This fall, a similar battle between plain text and (arguably) unintended context will return to the Court in Yates v. United States, which concerns whether the "anti-shredding" provision of the Sarbanes-Oxley Act criminalizes the destruction of fish.

John L. Yates, a commercial fisherman, was operating his vessel, the Miss Katie, in the Gulf of Mexico when a Florida wildlife official (deputized as a federal agent) boarded his boat and determined that 72 red grouper that Yates had caught were under the 20-inch minimum size allowed. The officer issued Yates a citation, sealed the probative fish in a crate on board, and instructed Yates not to disturb the fish, as they would be seized at port.

At the dock, however, most of the fish in the crate turned out to be around the legal size. This caused the agent to investigate, leading to Yates's conviction for destroying evidence. At trial, a Miss Katie crew member testified that Yates instructed him to throw the undersized fish overboard, replace them in the crate with larger fish, and deny that obstructive conduct to law enforcement.

The law prohibits the destruction of "any record, document, or tangible object" with the intent to obstruct any federal investigation. Yates contended that a fish was not a "tangible object" under that provision.

Much as the 3rd Circuit had rejected Bond's argument as contrary to the plain text the statute, the 11th U.S. Circuit Court of Appeals made short work of Yates's contention. With a single paragraph of analysis, the 11th Circuit held that the term "'tangible object' ... unambiguously applies to fish." Citing Black's Law Dictionary, the court pointed out that "tangible" means having or possessing a physical form, which a fish surely does. Since the statute was clear, Yates's conviction was proper.

The Supreme Court has granted certiorari, so some justices likely see Yates's claim as worthy of more complex analysis.

What is Yates argument against the truism that a fish is a "tangible object"? It is entirely based on the term's meaning in context, rather than merely upon the term itself.

The provision at issue was enacted as part of the Sarbanes-Oxley Act of 2002, precipitated by the Enron Corporation debacle, where that company's financial prosperity was largely an accounting ruse concocted by it and its auditor, Arthur Andersen LLP.

As part of their unsavory conduct, Enron and Andersen created a policy in which the company's records and documents would be routinely purged. Yates claims Congress passed the anti-shredding provision because federal obstruction laws did not criminalize such pre-investigation destruction of information. In context, Yates argues, the law merely precludes the destruction of records, documents, or other objects that store information.

Yates relies on various other provisions of Sarbanes-Oxley to support his argument. And just as Bond construed the term "chemical weapon" based in part upon the treaty-implementation context in which Congress acted, Yates relies heavily on the post-Enron context in which Congress passed Sarbanes-Oxley. The nine amicus briefs in support of Yates include one from former U.S. Representative Michael Oxley himself.

The United States, on the other hand, relies principally upon the plain meaning of "tangible object." Once again, as in Bond, the Supreme Court will be confronting a criminal provision with language that, read in isolation, prohibits the defendant's conduct. And once again, the defendant will argue that the text was never intended to apply in the context in which it has been deployed, and the government will argue that Congress intended the broad meaning that it enacted.

How the Yates fish story ends in the Supreme Court may reveal more about how the justices view a tension between the import of the plain words of text and the meaning derived from its context. The case will be argued Nov. 5.

Wednesday, I will look at the second category of criminal cases in which parties in the Supreme Court are battling over the meaning of the plain text of a statute.


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