Yates v. United States – Oral Argument – November 05, 2014

Media for Yates v. United States

Audio Transcription for Opinion Announcement – February 25, 2015 in Yates v. United States

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 13-7451, Yates v. United States.

Mr. Badalamenti.

John L. Badalamenti:

Mr. Chief Justice, and may it please the Court:

The natural, sensible and contextual reading of Section 1519 is that the phrase “ record document or tangible object ” is confined to records, documents and devices designed to preserve information, the very matters involved in the Enron debacle.

Given the expansive Federal nexus of this statute, which is the intent to influence the proper administration of any matter within the jurisdiction of the United States, it is implausible that Congress would have passed sub silentio, an all-encompassing obstruction statute buried within the altering documents provision of the Sarbanes-Oxley Act.

A strong textual indicator that Section 1519 is confined to record-related offenses is the inclusion of the unique term “ makes false entry in ”, which Congress only uses in record-related statutes.

The canons of ejusdem generis and noscitur a sociis confirm that tangible object is related to the common thread between record and document which are information devices — information mediums.

Ruth Bader Ginsburg:

Why should — why should the expression “ tangible object ”, which stands alone, it’s not falsifying documents, why should the word “ object ” in 1519 be treated differently than the word “ other object ” in 1512 — 1512(c)?

John L. Badalamenti:

Justice Ginsburg, in Section 1519 — it was passed at the same time as 1512(c) as part of the Sarbanes-Oxley Act.

And as this Court held in Russello, when Congress includes different terms in different statutes passed in the same act, it is intended to mean something different.

Ruth Bader Ginsburg:

So you think there’s a difference between “ tangible object ” and “ other object ”?

John L. Badalamenti:

Yes, there is.

The first reason is that the inclusion of “ makes false entry in ” indicates that the phrase “ record document and tangible objects ” refers to recordkeeping.

Another difference is that — a common sense standpoint — is that records can only be maintained on tangible mediums.

And it’s a distinguishing factor between “ record document ” and “ other objects ” in 1512(c).

It’s also limited–

Sonia Sotomayor:

But how does the Internet — you could falsify Internet entries, or things that are in the cloud, those are intangible items.

John L. Badalamenti:

–No, those are tangible items, Your Honor, because they are stored on a hard drive somewhere.

The cloud is not existing above.

It’s merely being housed somewhere else that’s accessed through the Internet on a tangible device that’s designed to preserve that very type of information.

Anthony M. Kennedy:

Suppose the typewriter were used to prepare an incriminating document.

The document and the typewriter were destroyed, would that be covered?

John L. Badalamenti:

The typewriter would not be.

The piece of paper that the typewriter is inscribing on is a device that’s designed to preserve information.

It’s simply making the information.

Anthony M. Kennedy:

I — I understand the argument and the argument that you make has considerable force about over criminalizing, but it seems to me that the test you suggest has almost more problems with vagueness, more problems with determining what its boundaries are than the government’s test.

John L. Badalamenti:

No, the government’s test renders 1512(c) wholly superfluous.

1519 — first of all, the words “ record document ” and “ tangible object ” are definitions providing meaning to all of them.

The government is saying admittedly, “ record ” and “ document ” didn’t need to be there and Congress had no reason to put them there because it’s everything, it’s all physical evidence.

A record — a tangible object is a discrete device.

John L. Badalamenti:

It is a device that is designed to preserve the information.

Samuel A. Alito, Jr.:

Well, if that’s the — if that is the case, then why is it not surplusage?

Why — what would be a tangible object designed to contain information that would not fall into the category of record or document?

John L. Badalamenti:

An iPad, a laptop computer, a desktop computer, an iPhone.

Those–

Samuel A. Alito, Jr.:

Those things in themselves don’t — they have documents, they have something that could be called a document or a record stored in them.

John L. Badalamenti:

–That is–

Samuel A. Alito, Jr.:

If you — if you have an iPad that’s straight from the store, has nothing — has no information stored in that, do you think that would fall within the statute?

John L. Badalamenti:

–It would fall within the statute because what Congress was trying to intend to do — and given the backdrop of the Enron situation where massive servers were destroyed or deleted or otherwise — they were trying to — to capture the devices that held information.

And you cannot determine what’s on the device unless you have the device, regardless of whether or not there’s information on it or not.

Samuel A. Alito, Jr.:

What about destroying a brand new empty filing cabinet?

John L. Badalamenti:

That is not a device that’s used to preserve information.

That’s a container of something.

It’s not specifically designed to preserve information.

You could put bowling balls in a — in a filing cabinet or otherwise.

The information, the distinguishing factor, Your Honor, between a tangible object is that the information is being preserved within it, embedded within it, like a computer or otherwise.

And Congress needed to use the general phrase “ tangible object ” for a reason, because in 2002, an iPad, an iPhone, and many other electronic devices that preserve information didn’t exist, and they–

Ruth Bader Ginsburg:

But then the Congress could have said used — tangible object used to preserve information, and then your case would be solid.

But it just said “ tangible object ”.

John L. Badalamenti:

–It said “ tangible object ”, that is true, Justice Ginsburg, that it said “ tangible object ”.

But it did so using that general phrase following two specific terms, “ record ” and “ document ”, which is a classic methodology in which the legislature uses–

Elena Kagan:

But could I go back to Justice Ginsburg’s first question, because, my fault I’m sure, but I wasn’t sure I understood your answer.

Not only in 1512(c)(1), but there are, you know, I think five times in 1512 from a prior enactment this same kind of phrase is used, which is “ record document and other object ”.

And you say that we should treat that phrase as it exists many times in 1512 differently from this phrase in 1519 because of the difference between tangible object and other object.

And to me, it seems like other object is, if anything, a more classic case of that canon that I can’t pronounce the name of, ejusdem whatever.

[Laughter]

Antonin Scalia:

Generis.

Elena Kagan:

Good.

That’s what I count on my colleague for.

[Laughter]

Elena Kagan:

I — I deserved that.

But to me, it seems like a more — even a more classic case.

So I guess I just don’t understand why you’re treating the two differently.

John L. Badalamenti:

–It is, to answer your question, they’re being treated differently not simply because of the inclusion of the word “ tangible ”, but because of the other words surrounding “ tangible object ”, like the unique phrase “ makes a false entry in ”, which is not included in any other obstruction of justice statute.

Elena Kagan:

But just because Congress includes more verbs — I mean, the reason Congress includes 20 verbs instead of 4 is presumably because Congress really wants to sweep in a very wide variety of conduct.

And not every verb has to apply to every situation.

In fact, we rather presume that they won’t.

John L. Badalamenti:

Although this Court has never held that all the verbs, you know, applied to all the nouns, it would make sense that they would apply.

The only instance that the United States points out is in an amended statute.

This statute was written from “ Whoever ” to the last word of this statute at the same time.

It makes sense that they all apply.

And “ makes false entry in ” is a phrase that can be used only to apply to all of the nouns under our particular construction.

And it’s unique.

It is only used by Congress in record-related statutes.

Elena Kagan:

So your whole argument here really comes down to the fact that Congress put some record-related verbs in there?

John L. Badalamenti:

It does not, Your Honor.

There’s additional things.

We have a limited subject matter under our definition, which makes sense because you have a tremendously broad nexus to any matter within the proper administration of the United States.

That’s unlike traditional classic statutes.

It makes sense that Congress wanted to narrow the subject matter of this particular statute when you’re dealing with such a broad nexus to any Federal matter.

Elena Kagan:

But I would think — I’m sorry.

I would think that that cuts against you, that the fact that this is about any matter within the jurisdiction of any agency in the United States shows that it’s really not just about corporate fraud, that Congress had a broader set of things in mind.

So I would think that that’s — that’s quite the opposite, that everything about this statute, the “ any matter ”, the “ any record ”, suggests breadth.

John L. Badalamenti:

It — it does not, Your Honor, because if you take the lens and you zoom it out a little bit further, if we look at Section 802 of Title VIII of the Sarbanes-Oxley Act, it’s entitled “ Criminal Penalties For Altering Documents ”.

Two new criminal statutes were created: 1519, entitled

“Destruction, alteration, and falsification of records. “

and 1520, which is a 5-year record retention requirement on auditors.

They were — or else they get a 10-year penalty for that.

Congress was referring, passing these, 1519 and 1520 within Section 802 of Title VIII, as a tandem, as another contextual indicator that this is intended to apply to record-related matters.

Ruth Bader Ginsburg:

Then how do you — how do you respond to the illustration that the government gave in its brief?

Ruth Bader Ginsburg:

That is, what sense does it make to say you can be indicted under 1519 if you destroy a letter that the victim that you have murdered has sent you, but you can’t be indicted under 1519 if you destroy the murder weapon?

John L. Badalamenti:

Congress did not intend 1519 to be applied in that situation.

And as you state the question, Justice Ginsburg, it is remarkable that the government would use 1519 in a murder situation.

Ruth Bader Ginsburg:

But you think it could — would — let me back up and ask what I assume was — you would say yes to.

A letter is shredded.

It’s a letter from the victim to the later-turned-out-to-be murderer.

That letter is shredded.

Does that come under 1519?

John L. Badalamenti:

That does, because that is record related.

But the knife does not.

That falls into the sweep — that particular subject matter, because it indeed is a record, so that would be covered under 1519, but that — not the knife.

Congress didn’t intend to sweep the knife into 1519, but–

Sonia Sotomayor:

Where did the — I’m sorry.

John G. Roberts, Jr.:

What if the knife had the defendant’s name on it?

Is that, destroying the knife, is that altering, destroying a record?

John L. Badalamenti:

–It is not.

One would not, Mr. Chief Justice, refer to an inscription of one’s name as a permanent account of an event.

It’s just an identification.

It’s an identification on the knife.

John G. Roberts, Jr.:

Well, but presumably the same would be true of a lot of documents or records that are destroyed.

John L. Badalamenti:

But in ordinary parlance, one would not consider an inscription on a knife to be it.

It’s evidence, but it’s not a — it’s not a document, it’s not a record or otherwise, and it doesn’t fall within the very limited subject matter that Congress wrote into this particular statute, which is records.

Sonia Sotomayor:

Now, what do you say about 1512(c)?

Would the knife fall under that?

John L. Badalamenti:

1519 and 12(c), it would make more sense that the knife fall in, and here’s why.

It’s a more classic–

Sonia Sotomayor:

Even if the knife was used in the murder, but it was destroyed before anybody was caught?

John L. Badalamenti:

–It would — it would — if it was destroyed with the intent to impair that object’s availability in an official proceeding, which is a classic, classic obstruction statute–

Sonia Sotomayor:

So did the government mischarge here?

Could they have charged your client with violating 1512(c)?

John L. Badalamenti:

–It’s possible the government could have charged that particular thing, but–

Sonia Sotomayor:

I love those words, “ possible ”.

John L. Badalamenti:

–It is possible.

[Laughter]

Sonia Sotomayor:

What would — what would have been your defense if they did?

John L. Badalamenti:

My defense would have been something very significant, difference between 1512(c) and 1519.

1519 only requires that–

Sonia Sotomayor:

I know you were charged with.

What would have been your defense to 15–

John L. Badalamenti:

–He didn’t corruptly do it.

And corruptly is wrongful, immoral, depraved or evil, not simply knowingly, which is required under 1519, which is voluntarily and intentionally done.

See, “ corruptly ” is used in 1512(c) purposefully in that particular information because it is, perhaps, a broader class, and it is–

Sonia Sotomayor:

–Destroyed and substituting fish is not a corrupt act.

John L. Badalamenti:

–It would have been my defense.

[Laughter]

Sonia Sotomayor:

Touche.

John L. Badalamenti:

Which was the question, Your Honor.

Okay?

So what we — what we have in 1519 — what we have in 1519 is a remarkable situation when you’re looking at Chapter 73 in total, is that you have this incredibly broad nexus to any Federal matter within the jurisdiction of the United States.

What can the matter be?

As the amicus briefs point out, any of 300,000 Federal regulations that the Federal Government has placed down upon the American people.

Stephen G. Breyer:

And what is your view, given what you’ve just said, of the best way to narrow this statute?

John L. Badalamenti:

The best way to narrow this statute, Justice Breyer, is to interpret “ tangible object ” in the company it keeps, and that is a device that is designed to preserve information such that if that device is destroyed, the information contained on that device is destroyed.

Stephen G. Breyer:

You still have the problem of the language of the statute covering the destruction of a document such as an EPA questionnaire that comes to the door asking about recycling, where you know that the EPA would like to have that back to help them do their official work of finding out how the program works.

You, believing that that’s their business, not yours, tear it up and throw it in the wastebasket.

Now, does that fall within the statute?

John L. Badalamenti:

Well, it–

Stephen G. Breyer:

It surely does within the language.

John L. Badalamenti:

–It falls within–

Stephen G. Breyer:

And your effort to narrow the statute has nothing to do with that.

John L. Badalamenti:

–The narrowing is the document itself.

This statute’s exceedingly broad.

Our–

Stephen G. Breyer:

But my problem, of course, is reading the statute and taking your argument in the context that you mean it, which is we must look for a way to narrow this statute, which at first blush seems far broader than any witness-tampering statute, any obstruction of justice statute, any not lying to an FBI agent statute that I’ve ever seen, let alone those within Section 15.

So what I’d like you to focus on is not your problem, though they’re connected, but my problem.

John L. Badalamenti:

–Focusing on your problem, Justice Breyer, I would say that it is not an onerous situation for individuals to retain documents.

It is not an onerous situation on the American people to — particularly what we have on flash drives attached to a key chain that can hold thousands and thousands–

Stephen G. Breyer:

Right.

I see where you’re going.

John L. Badalamenti:

–of documents.

Stephen G. Breyer:

I see where you’re going.

Let’s follow you down that road: That you say in many situations it should not be a crime to retain a document, even though you know that the Census Bureau would like it back or perhaps the EPA.

John L. Badalamenti:

Uh-huh.

Stephen G. Breyer:

And perhaps it’s nothing more than trying to find out information.

But where you end up at the end of the road is that this is void for vagueness, but not for any reason you have yet told us.

So what am I to do with the fact, if that is a serious problem, that it has never been argued in this case?

John L. Badalamenti:

Well, I would accept the invitation that it would be void for vagueness, Your Honor.

Antonin Scalia:

Why is it vague?

It’s — it’s just incredibly expansive.

John L. Badalamenti:

It — it–

Antonin Scalia:

What is vague about the fact that if you destroy a questionnaire, you destroy a document with the intent of, what is it, to impede, obstruct or influence the investigation or proper administration.

What’s vague about it?

Stephen G. Breyer:

The answer to that, if you want to pose it as a question to me —-

[Laughter]

–would be that the void for vagueness, if you look at Skilling, has two branches.

From Kolender v. Lawson — Justice Ginsburg wrote it — a penal statute defining the criminal offense, one, with sufficient definiteness that ordinary people can understand.

That’s what Justice Scalia has just talked about.

You can understand what is prohibited.

But then there is two: In a manner that does not encourage arbitrary and discriminatory enforcement.

It’s that second part, that the doctrine extends the doctrine to statutes that, while they may be clear, are far too broad, well beyond what any sensible prosecutor would even want to prosecute.

John L. Badalamenti:

–Well, I agree with that.

Stephen G. Breyer:

All right.

Then back to the question.

John L. Badalamenti:

The answer — the answer would be that perhaps a way to reconcile this statute would be not only to accept our position that it relates to recordkeeping generally, but that it requires specifically, relates to business recordkeeping, where businesses are on notice such as SEC filing quarterly requirements or otherwise, that they are to do specific things.

And if you look against the backdrop of the Sarbanes-Oxley Act, there is plenty of support that Congress was targeting businesses, corporations, and publicly traded companies.

Ruth Bader Ginsburg:

Isn’t — isn’t running a fishing vessel a business?

John L. Badalamenti:

It would be running a business, Your Honor, it would be.

And a possible way to limit this particular circumstance would be to limit it to — to businesses.

It doesn’t change the fact that “ tangible object ” doesn’t mean everything.

Ruth Bader Ginsburg:

Can you — can you tell me the exact consequences for your client?

Because as I understand it, he was also charged under 22 — what is it — 2232?

John L. Badalamenti:

Yes, Your Honor.

Ruth Bader Ginsburg:

And he could have gotten the same sentence?

John L. Badalamenti:

No.

No, Your Honor.

2232 is destroying a piece of property subject to seizure.

That’s a 5-year statutory maximum.

1519 has a 20-year statutory maximum.

Ruth Bader Ginsburg:

But he in fact got what?

30 days.

John L. Badalamenti:

30 — he ended up getting 30 days by a judge that made that individualized decision under the Booker factors.

But we can’t count on judges being like those — that judge around the United States.

The fact remains is that–

Ruth Bader Ginsburg:

But you’re only arguing for your client.

This is not some kind of class action.

John L. Badalamenti:

–No, Your Honor, this is just related to Mr. Yates.

But the idea is that — my understanding is that when the courts are writing the opinions, they’re thinking about all the judges in the United States and providing guidance to all the judges, providing guidance to the prosecutors when to use particular statutes.

And if this Court permits that this statute be applied for the disposal of all physical evidence that would contravene the textual and contextual terms and indicators that I brought through throughout this argument, it is basically the overreaching broad thing that Congress has never passed, despite the government’s attempt to inject in the Model Penal Code into this case, which 1519 looks nothing like the Model Penal Code.

Anthony M. Kennedy:

Suppose the fisherman took pictures of the fish, and then he destroyed both the pictures and the fish.

Liability?

John L. Badalamenti:

A picture?

Although Congress didn’t intend this in this circumstance, and we would hope the prosecutor wouldn’t prosecute for this, it is a permanent account of an event that is preserving the information as to what the pictures — what the fish looked like.

So the fish thrown overboard indeed would be a record and would be covered under this statute.

But it wouldn’t be a tangible object because it’s not a device designed to preserve the information.

Anthony M. Kennedy:

The photograph isn’t?

John L. Badalamenti:

The photo — I’m sorry, the photograph is not a tangible object under our definition.

If it were a digital camera and it’s stored on a memory card on it, that would be a tangible object.

Anthony M. Kennedy:

Is a piece of paper a physical object?

John L. Badalamenti:

A piece of paper is a piece of paper, a physical object.

Anthony M. Kennedy:

Is it an object?

John L. Badalamenti:

It’s an object as well.

Anthony M. Kennedy:

But why isn’t a film if it’s on it — I’m talking not about a film on one of these screens, but an old-time film that you can pick up.

A picture, a picture.

John L. Badalamenti:

Well, they — it is — the film itself is a record.

The film itself is a record.

It’s not–

Anthony M. Kennedy:

Would its destruction be a violation of this Act?

John L. Badalamenti:

–Yes, it would be.

Anthony M. Kennedy:

It seems very odd that you can throw away the fish without violating the Act, but you can’t throw away the picture.

John L. Badalamenti:

Although it’s not what Congress intended, it’s what requires that this statute read even under our interpretation, which brings up the absurdity of this particular case.

This underscores everything about this case that’s absurd, is that the prosecutor used this statute in this way.

And had he thrown a piece of paper overboard that had the day’s catch logs on it, that would have been covered, and we concede that that would have been covered.

Elena Kagan:

Well, then why is that absurd?

If you concede that that would have been covered, the catch logs, and the prosecutor is trying to do the exact same thing, it’s just that he’s thrown over a different piece of evidence, why is that such a crazy outcome?

John L. Badalamenti:

The — the absurdity aspect comes down to the — perhaps the prosecution in this case, and I didn’t mean to overstate that, Justice Kagan.

The fact is, is that throwing it overboard, the log, the picture that memorializes what that fish looked like at the time is a record, and it would fall within it.

And taking a step back to Justice Breyer’s question earlier–

Antonin Scalia:

Wouldn’t it be just as absurd to give him 20 years, though, wouldn’t it?

John L. Badalamenti:

–It would be extremely absurd, Justice Scalia.

Antonin Scalia:

Yes.

Antonin Scalia:

I don’t understand.

Elena Kagan:

But that clearly falls within the statute.

I mean, you can’t argue that it doesn’t.

So–

John L. Badalamenti:

The only — the only way we could argue–

Elena Kagan:

–You know, it seems as though this is — Congress gives very strict penalties to lots of minor things, and — but that’s, you know, that’s what it does.

John L. Badalamenti:

–Congress did something that was very, very strong language to the American people in the Sarbanes-Oxley Act.

It added 1519 to cover record-related matters, 20 years.

1512(c) is related to official proceedings — we’ve discussed that earlier — 20 years.

It upped wire fraud, mail fraud, from 5 years all the way up to 20 years.

Why did Congress do that?

It did that because it recognized the harm that Enron/Arthur Andersen type of situations did to the financial well-being of this country and the investors in public markets, and it wanted to send a message to the public to not engage in record destruction that could impede or influence the proper administration of any matter.

That’s why it’s important to limit the subject matter of this particular statute to just record-related matters.

If there are no more questions, I would like to reserve the remainder of my time for rebuttal, Mr. Chief.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Martinez.

Roman Martinez:

Mr. Chief Justice, and may it please the Court:

Section 1519’s key phrase,

“any record, document, or tangible object. “

unambiguously encompasses all types of physical evidence.

That’s clear from the standard meaning of those words in ordinary speech and from the broader statutory and historical context in which those words appear.

John G. Roberts, Jr.:

Why are those — why are those the key words?

Why don’t you start earlier?

“Knowingly alter, destroy, mutilate, conceal, cover up, falsify. “

those are certainly pertinent in analyzing the reach of “ tangible object ”, aren’t they?

Roman Martinez:

I think they show that — that Congress was intending to essentially figure out every way that — that someone might imagine tampering with or destroying or — or obstructing justice by getting rid of evidence, and so they might shed light on it.

But the issue in this case is the meaning of — of the phrase “ any tangible object ”.

I would like to–

Ruth Bader Ginsburg:

Are you — are you then saying that this is, indeed, a general statute against destroying anything that would impede a Federal–

Roman Martinez:

–We think this is a general statute that would cover destroying any record, document, or tangible object, which we think, as a manner of plain meaning and history covers all types of — of physical evidence.

Anthony M. Kennedy:

Assume that Congress intended and wanted, to cure a void in the criminal statutes, to have a general prohibition against destruction of evidence and that it put it in Sarbanes-Oxley, and you make that argument.

Are there any other laws of general application that were also included in the Sarbanes Act — Oxley, or is this the only one?

Roman Martinez:

No, there — there were a number.

First of all, Petitioner has conceded that 1512(c)(1) itself is of general application.

The other one that I think is the clearest to point to would be 1513(e), which was a new provision also added as part of Sarbanes-Oxley that was the antiretaliation provision.

And–

Antonin Scalia:

Is there any other provision of Federal law that has a lesser penalty than 20 years that could have been applied to this — this captain throwing a fish overboard?

Roman Martinez:

–Well, Your Honor, he was convicted of violating 2232.

The statute that Petitioner agreed he could have been charged with, 1512(c)(1), also applies a 20-year penalty.

But I’d like to address–

Antonin Scalia:

And that’s it?

Stephen G. Breyer:

They never meant to–

Antonin Scalia:

There is nothing lesser than that?

Roman Martinez:

–I — I’m sure there — there may have been other–

Antonin Scalia:

You know, frankly, you come here, and, yeah, he only got — what did he get, 30 days or something?

Roman Martinez:

–Yes, Your Honor.

Antonin Scalia:

But he could have gotten 20 years.

What kind of a sensible prosecution is that?

Roman Martinez:

Your Honor–

Antonin Scalia:

Is there nothing else you — who — who do you have out there that — that exercises prosecutorial discretion?

Is this the same guy that — that brought the prosecution in Bond last term?

Roman Martinez:

–Your Honor, I think a couple points on that.

First of all, Congress passed a broad statute.

The statute as originally drafted and reported out of the Senate Judiciary Committee had a 5-year penalty.

Congress looked very closely at that penalty.

It was — sorry, it was drafted with 5 years.

It was reported out of committee with 10 years, and it was ultimately at — at the suggestion of the House of Representatives, upped to 20 years.

Antonin Scalia:

No, I’m not talking about Congress.

I’m talking about the prosecutor.

What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?

Roman Martinez:

Your Honor, we did not ask for 20 years in this prosecution.

And let me try to explain–

Ruth Bader Ginsburg:

–But you did — you did — you did charge–

Anthony M. Kennedy:

What did you ask for?

Ruth Bader Ginsburg:

–You charged two offenses: 2232, and Yates is not questioning the applicability of that.

Is there any guidance that comes from Justice to prosecutors?

I mean, the code is filled with overlapping offenses.

So here’s a case where the one statute has a 5-year maximum, the other 20.

The one that has the 5-year clearly covers the situation.

Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys what to do when there are these overlapping statutes?

Roman Martinez:

–Your Honor, the — my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge — once the decision is made to bring a criminal prosecution, the prosecutor should charge the — the offense that’s the most severe under the law.

That’s not a hard and fast rule, but that’s kind of the default principle.

In this case that was Section 1519.

Antonin Scalia:

Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are.

I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

Roman Martinez:

Your Honor, that’s–

Antonin Scalia:

Or — or how much coverage I give to severe statutes.

Roman Martinez:

–That’s — that’s not what we were saying.

I think we’re not always going to prosecute every case, and obviously we’re going to exercise our discretion.

In this case, what the prosecutors did was they looked at the circumstances of the offense.

And just to emphasize what happened here, Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of Federal law.

He directly disobeyed that.

He then launched a — a convoluted cover-up scheme to — to cover up the fact that he had destroyed the evidence.

He enlisted other people, including his crew members, in executing that scheme and in lying to the law enforcement officers about it.

And then–

John G. Roberts, Jr.:

You make him sound like a mob boss or something.

I mean, he was caught–

[Laughter]

The fish were — how many inches short of permitted were the fish?

Roman Martinez:

–The fish were — it varied fish by fish, Your Honor.

Roman Martinez:

[Laughter]

But we did not — the prosecution in this case was not about the size of the fish.

The prosecution was about the destruction of the evidence, and I think it would be a very strange thing if this Court were to say that the obstruction of justice law is somehow applied differently when the offense is trivial.

Anthony M. Kennedy:

Did you ask — did you ask for or recommend a particular sentence?

Roman Martinez:

We asked for a sentence within the guidelines range which was — which was calculated by the judge at I think 21 to 27 months.

The judge ended up giving 30 days.

We did not appeal that.

We think, you know, that was a reasonable exercise of the judge’s discretion, which I think is a very important check on the fact that this is, of course, a very broad statute, and I think a 20-year penalty, of course, would — would have been too — too much in this circumstance.

John G. Roberts, Jr.:

But according–

Anthony M. Kennedy:

Go ahead.

John G. Roberts, Jr.:

–But according — if I understand your answer to Justice Scalia, according to the Justice Department manual, any case in which someone destroys a tangible object, you — you should prosecute them under this statute, because I assume 20 years is the maximum available penalty?

Roman Martinez:

Your Honor, we would not — we do not prosecute every fish disposal case, and — we do not.

So I think if you–

John G. Roberts, Jr.:

But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you you’re facing 20 years, so why don’t you plead to a year, or something like that.

It’s an extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.

Roman Martinez:

–Your Honor, we’re operating with the — with the statute that Congress passed, and Congress decided that this statute was going to carry a 20-year penalty.

And I think the issue in this case, though, is whether Mr. Yates’ conduct comes within the terms of that statute and specifically whether a fish counts as a tangible object.

Stephen G. Breyer:

–Isn’t — isn’t there a normal obstruction of justice statute that existed before this?

Roman Martinez:

I — there are several, and I think what Congress–

Stephen G. Breyer:

Suppose, in other words, it — wasn’t this going to a criminal — isn’t a criminal matter?

Roman Martinez:

–I’m sorry, can you–

Stephen G. Breyer:

Wasn’t what the official, the government official was investigating a minor crime, catching fish that are too small?

Am I right?

Roman Martinez:

–It was a civil offense, Your Honor, that the–

Stephen G. Breyer:

It’s a civil offense.

Roman Martinez:

–Yes.

Stephen G. Breyer:

Fine.

Then isn’t there a statute that says that you cannot destroy evidence useful for a civil offense when you know that it’s going to be?

Roman Martinez:

Yes, and it’s 1519 and only 1519.

Stephen G. Breyer:

In other words, for many, many years before Sarbanes-Oxley, the Federal Government could not prosecute obstruction of justice.

Roman Martinez:

Your Honor, the–

Stephen G. Breyer:

Where there was a civil offense involved?

Roman Martinez:

–When there was a — in the absence of a pending judicial proceeding, the government could not have prosecuted him under 1503.

Stephen G. Breyer:

No, I’m not asking specific things.

I want to know the general criminal law, which I do not know all of it.

I had always thought there is a crime called obstruction of justice, and I always thought that a person who destroys evidence, where he knows it’s evidence, he’s been asked to bring it to the proceeding which may not yet have taken place, he purposely destroys it, I had thought that that was a crime.

Roman Martinez:

It would make perfect sense for that to be a crime–

Stephen G. Breyer:

But it was never was in the criminal system?

No one was ever prosecuted for it?

Roman Martinez:

–Under these — under these circumstances it was not a — it was not a crime, and that’s exactly what Congress realized.

Sonia Sotomayor:

I’m sorry–

Roman Martinez:

–in the wake of Enron.

Sonia Sotomayor:

–I’m sorry, but–

Stephen G. Breyer:

What statute did you used to use?

Roman Martinez:

Well, in the Arthur Andersen prosecution they used 1512(b)(2).

But the problem with 1512(b)(2) was that it had a huge loophole in it.

1512(b)(2) prohibited person A from persuading person B to destroy evidence, but it didn’t prohibit person A from destroying that exact same evidence himself.

And so Congress decided–

Stephen G. Breyer:

Okay, okay.

I guess I can look that up later.

But in any case, this is a — what will you do with the problem that I put together?

That is my problem.

Roman Martinez:

–The vague — the potential vagueness problem?

Is that what–

Stephen G. Breyer:

Yeah.

Roman Martinez:

–I think there are certain questions that come into play with this statute, which are arguably vague, and they don’t have to do with the meaning of tangible object.

They have to do with the — the various intent-related elements of the statute.

For example, what does it mean to impede, obstruct or influence justice?

What does it mean to be acting in contemplation of a proceeding, and do you need to know that the proceeding is — is under Federal jurisdiction?

Those are the kinds of questions that the lower courts are currently dealing with.

Roman Martinez:

They’re not presented in this case.

Stephen G. Breyer:

No, I know.

It’s not just influence a proceeding.

It is, for example — and here it’s obscure, but it means to destroy something in relation to any such matter or case.

What matter?

In relation to any matter within the jurisdiction of any department or agency within the United States.

What?

I mean, somebody comes to the door and says — I’ve been through this.

He passes a piece of paper through the door.

It’s the postal — it’s a postman.

He says, please send this back.

It’s our proper duty to deliver the mail.

I say, I hate postmen and I rip it up.

20 years.

[Laughter]

Roman Martinez:

Your Honor, that would not be covered.

[Laughter]

Stephen G. Breyer:

And why wouldn’t it happen?

It wouldn’t happen because you’d never prosecute it, though I’ve had my doubts recently.

[Laughter]

Roman Martinez:

Your Honor, it wouldn’t happen because the statute requires bad intent.

It requires the intent to impede, obstruct–

Stephen G. Breyer:

Yes, I do.

I say, I hate postmen.

I don’t want them to find out.

And I tell four people, I finally got even with the postman.

I have — I have the intent.

And I’m using a ridiculous example purposely because, by using an example purposely, I’m trying to get you to focus on the question of how possibly to draw a line.

And if you can’t draw a line, it seems to me that the risk of arbitrary and discriminatory enforcement is a real one.

And if that’s a real risk, you fall within the vagueness doctrine.

Stephen G. Breyer:

There is the whole problem spelled out, and what I do not understand is the relation of this case to that doctrine or how to decide this case.

Roman Martinez:

–Your Honor, this case is — 23 is not related to that doctrine because the Petitioner has not made a vagueness argument.

Stephen G. Breyer:

Yes.

Roman Martinez:

What this Court has said is that when — when vagueness challenge is represented, they need to be presented in as-applied challenges.

That hasn’t happened in this case, and so–

Stephen G. Breyer:

How do I know since there could be four ways of trying to limit it?

And one way to try to limit it might be what your opponent says.

Roman Martinez:

–I think that his way is a particularly bad way to address the problem that you — the exact hypothetical that you gave me because in that case, we’re talking about a document, a letter, that the postman hands over.

And so the problem that — that your — your hypothetical poses is not addressed by the solution he gives.

Stephen G. Breyer:

That’s true.

Roman Martinez:

So there’s a total mismatch.

And I don’t think there’s any reason to think that Congress, even if it had concerns about breadth, would have wanted to solve those concerns by — by narrowing, in a very unnatural fashion, the word “ tangible object ”, whereas, you know, leaving in place the terms “ record and document ”.

Sonia Sotomayor:

–Mr. Martinez, can we go back to what we started with — with what Justice Breyer started with?

If I understood your brief right, up until 1519, the general obstruction statute, 1503, applied only to the destruction of evidence in a judicial proceeding if you got someone else to destroy it.

Roman Martinez:

1503 applied only to pending judicial proceedings.

There was a different provision, Section 1512(b)(2) that, as — as the Court considered and addressed in the Arthur Andersen prosecution, 1512 (b)(2) did not prohibit a single act or destruction.

You had to persuade someone else.

Sonia Sotomayor:

Okay.

So you needed something to punish people who destroyed evidence and — but I see two provisions, 1519 and 1512.

Are they superfluous?

Roman Martinez:

I think the way to understand those provisions is to — is to understand the fact that, one, they are super — they are redundant largely, not entirely; and, two, why are they both in there?

It’s a very reasonable question to ask.

And the reason is, these were rival — essentially rival provisions, they were drafted by different people at different times and they both ended up in the statute by the way that the–

Antonin Scalia:

Well, that makes it okay.

That’s fine.

I mean, you know, that explains how it happens.

It doesn’t explain how it makes any sense.

[Laughter]

Roman Martinez:

–Well, Your Honor, I think to address the — the textual component of the superfluous nature of those two provisions, I think it’s unambiguous that they are superfluous, and I think Petitioner would agree with us that they’re superfluous with respect to records and documents.

So we know here that Congress was not intending to avoid surplusage.

Roman Martinez:

The only question is whether they also — they — they thought it would be superfluous with the third term in the list, which is either “ other objects ” or “ tangible objects ”.

Antonin Scalia:

Well, not only that, 1519 — 1512 only applies for use in an official proceeding; isn’t — isn’t that right?

Roman Martinez:

That’s right.

It’s narrower.

Antonin Scalia:

Yes.

And this applies to any matter within the jurisdiction of any department or agency of the United States.

Is the knowingly requirement of 1519, does that apply to that portion of the statute or does it only apply to altering, destroying, mutilating, concealing, covering up, or falsifying?

Do you have to know that it is within the jurisdiction of a — of a Federal agency?

Roman Martinez:

No, you don’t.

It’s a jurisdictional element that typically that it — as this Court has read other statutes, the — the knowledge requirement does not extend to the jurisdictional element.

Antonin Scalia:

Wow.

Then it’s really–

Roman Martinez:

Your Honor, but that’s — the court of appeals have said that if this Court has concerns with that — that holding, I think there may be a different case in which to bring that up.

Here, of course, Mr. Yates had perfect knowledge that there was a Federal proceeding that was ongoing and so that concern doesn’t affect his case.

Antonin Scalia:

–In this case, it’s not a problem.

Roman Martinez:

But — can I–

Sonia Sotomayor:

1512, could you have charged it?

Roman Martinez:

–1512(c)(1), I think we could have charged it, yes, Your Honor.

And we didn’t — and I think in the Eleventh Circuit there was some confusion about how you deal with investigations and whether investigations that are probably going to give rise to a proceeding, whether that kind of is close enough to an official proceeding to charge 1512(c)(1), so they made the decision to charge 1519 instead.

It was — it was a reasonable decision based on the language of the statute.

But I want to emphasize, I think the most important thing that Petitioner’s counsel conceded here today was that 1512(c)(1) is a general obstruction of justice statute that was passed as part of Sarbanes-Oxley and covers the destruction of fish.

And I think that–

Ruth Bader Ginsburg:

He said it has a stronger state of mind element.

Roman Martinez:

–It’s — the requirement is a little bit more rigorous with respect to 1512(c)(1).

But I think the key point is Sarbanes-Oxley prohibits the destruction of fish.

You said that, that’s been our position, and I think that undermines the whole theme of his brief and certainly the theme of all the amicus — amicus briefs that’s been — that have been filed here.

Their whole point has been it’s impossible to imagine that — that Sarbanes — that Congress could have wanted Sarbanes-Oxley, an Enron-related statute, to prohibit the destruction of fish, and yet that’s the point on which we all agree here today.

I’d like to say a few words about the various textual arguments that — that Petitioner has put forward, the nouns, the verbs and the headings.

First of all, with respect to — with respect to the nouns, I think the historical evidence that we’ve put forward, I think, show conclusively that the term “ record ”, “ document ”, and “ tangible things ” is very, very similar to the standard formulation that essentially everyone has used to cover all physical evidence in the obstruction of justice context for over five decades.

Secondly, 1512(c)(1) confirms that the — the–

Elena Kagan:

Could — could you tell me, Mr. Martinez, where are those other provisions?

I — I think that there are about five of them in 1512.

I take it there are many State statutes, are there?

Are there other Federal statutes?

Roman Martinez:

–We — the — the key provisions that we’ve pointed to in our brief, there’s six different provisions of Section 1512.

1512 (a)(1)(b), (a)(2)(b)(1).

Elena Kagan:

That’s okay.

Roman Martinez:

Okay.

So there’s six in 1512.

There’s 16 different State provisions that have essentially the same language.

I think most of them say “ record ”, “ document ” or “ thing ”.

Some of them say “ record ”, “ document ” or “ other object ”.

John G. Roberts, Jr.:

Well, but — when you say this — I understood your friend to say “ tangible object ” is only used in record statutes.

In 1512–

Roman Martinez:

No.

John G. Roberts, Jr.:

–it’s — it’s “ object ”, I mean tangible — yeah, “ tangible thing ”.

In 1512 it’s “ object ”, right?

Roman Martinez:

In 1512 it’s “ other object ”.

John G. Roberts, Jr.:

Well, see, the reason — I mean, maybe that makes a difference if you have records, documents, and then a tangible object suggests that the tangible nature of it is what’s significant, which suggests that it may be one of the — you know, whatever the drive thing is as opposed to a record.

And that’s a point that’s not present in the statutes that you were citing.

Roman Martinez:

I think — I think it’s true that the term “ tangible ” is different.

I think that the way to understand the term “ tangible ” is the way in which Congress and — and the rules always use the term “ tangible ” in connection with things or objects, which is as a way to refer to all types of — of objects, all types of evidence.

We’ve cited 35 different provisions of the U.S. Code and of the — the discovery rules in the criminal context and in the civil context.

Those are at Footnote 3 of our brief.

In all of those instances, they use the phrase “ tangible things ” or “ tangible object ” to refer to everything.

And so there’s no reason to think that the addition of the word “ tangible ” somehow shrunk the scope of the statute.

And even if it did shrink–

Antonin Scalia:

Is there such a thing as an intangible object?

I’m trying to imagine one.

Roman Martinez:

–I — I think the — you could say that the object of the game of Monopoly is to win all the money, but that’s not really what Congress was looking at here.

Roman Martinez:

[Laughter]

Antonin Scalia:

Object not meaning purpose.

Roman Martinez:

I — I don’t think that the word — I agree with what Petitioner said in his opening brief, which is that — that the word “ tangible ” here doesn’t really do much.

He said that at page 13 of his opening brief.

When you get to his reply brief, suddenly the word “ tangible ” is doing all this amazing work that — and it’s the key difference between this statute and all the other statutes.

So that’s with respect–

Ruth Bader Ginsburg:

You, in your brief, point to the Model Penal Code as the model for 1519.

But the Model Penal Code describes a misdemeanor, and this is a 20-year felony.

That seems kind of a mismatch.

Roman Martinez:

–You know, if — the tradition of — of the degree of penalty to attach to this offense has changed over time.

As you point out, the Model Penal Code did identify this as a misdemeanor.

The Brown Commission, which built on the Model Penal Code, treated it as a misdemeanor or as a felony, depending on the severity of the underlying offense.

When Congress sat down in the ’70s and ’80s and was trying to incorporate, essentially, that provision into Federal law unsuccessfully, over a dozen times it treated it as a felony.

And then, or course, Congress in Sarbanes-Oxley Act in both 1512(c)(1) and in 1519 also treated it as a felony with a 20-year penalty.

And — and with respect to that penalty, again, I think it’s important to emphasize that the text that’s at issue here, any tangible object, that was fixed and that was drafted — it was in the bill that was introduced by Senator Leahy at the time when it was only a 5-year penalty.

And there’s no reason to think that when Congress tinkered with that penalty, it meant to kind of, by implication, shrink the scope of tangible objects that’s at issue here.

And I think just to emphasize the — the textual point, it’s — it’s a very unusual and I think it’s — it’s highly implausible to believe that Congress chose this broad and expansive phrase, “ any tangible object ”, when really what it really wanted to do was refer only to a very narrow and specific category of information storage devices.

John G. Roberts, Jr.:

Well, isn’t that like the Bond decision?

I mean, you had text that could be read broadly, and yet we suggested, well, Congress could not have meant the Chemical Weapons Treaty to cover a minor dusting of — with toxic, irritating chemicals.

Roman Martinez:

I think Bond it’s — I think Bond is actually in some ways helpful to the government in this case.

Because as I understand the — the Bond decision, it turned essentially on the everyday meaning of — of the phrase and of — and Federalism concerns as well.

And the everyday meaning of the phrase — I think it was “ chemical weapon ” in that case — didn’t apply to — to the chemicals at issue that Miss Bond used.

But in this case, the everyday meaning of the phrase “ tangible object ” applies to all tangible objects.

Everyone — and if you stop someone on the street and ask them is a fish a tangible object, the answer would almost certainly be — would be yes.

And so, you don’t have as well what you had in Bond, which was the concern about — about Federalism and the application of that canon.

John G. Roberts, Jr.:

Well, what if you stopped them on the street and said is a fish record document or tangible object?

Roman Martinez:

I think if you — if you asked them that question and you — you pointed them to the fact that–

Antonin Scalia:

I don’t think you would get a polite answer to either of those questions.

[Laughter]

Roman Martinez:

–Your Honor, maybe I could say a word — having talked about the nouns, maybe I could say a word about the verbs in this statute because they make a — they place a lot of emphasis on the “ makes a false entry ” language.

Roman Martinez:

Petitioner’s argument rests on this premise that each of the verbs has to work with — with each of the nouns, but that premise is — is flawed.

It’s not consistent with how Congress drafts statutes, it’s not consistent with Petitioner’s own interpretation, and I think there’s significant tension with this Court’s decision last year in Roberts.

Let me say a word about each.

With respect to how Congress drafts statutes, I think you only have to look to Section 1505 of the statute to see that that’s yet another example of where Congress has used — had a bunch of verbs and a bunch of nouns and some of the nouns don’t work with some of the verbs.

You can’t mutilate oral testimony.

With respect to Petitioner, the inconsistency with Petitioner’s own theory, Petitioner agrees that 1519 covers the destruction of an e-mail in electronic form.

You can’t mutilate an e-mail.

No one would ever talk like that.

Similarly, he says that it would apply to a blank hard drive.

But no one — I’ve never heard anyone talk about falsifying a blank hard drive.

So the implications of his argument are inconsistent with — with where he wants the Court to go.

And then finally, the Roberts case.

Roberts dealt with a circumstance, it wasn’t perfectly analogous, but it was — it raised a similar problem, which is that there was a broad statute, it had many different applications, and there was some language in the statute that was a little bit awkward and a little bit superfluous with regard to some of the applications of the statute.

And the response that the Court had to that problem was not to say, well, the statute doesn’t apply to those circumstances.

The response was to say that that’s the linguistic price to be paid, linguistic price to be paid for having a broad statute.

And then the Court said Congress does not need to write extra language specifically exempting, phrase by phrase, applications with respect to which a portion of a phrase is not needed.

I think that was right in Roberts and I think the same principle applies here.

Finally, Your Honor, with respect to the headings, a couple points.

First, I think the headings in this case as in — as in the Lawson case that this Court also dealt with last term also involving Sarbanes-Oxley, the headings here are just obviously and unambiguously under inclusive.

The heading is a shorthand reference to the general subject matter.

It’s not intended to spell out what the operative provisions say or to mirror those operative provisions.

It’s obviously under inclusive.

It omits a whole bunch of the verbs.

It omits two of the nouns.

The heading argument, I think, is especially unreliable in this context where if you look at what Congress did with Sarbanes-Oxley generally, it was not paying very close attention to the headings under which it put various provisions.

That’s true with respect to 1519, that’s true with respect to 1514, the statute that was at issue in the Lawson case, and it’s also true with respect to Section 1512(c)(1).

Section 1512(c)(1) prohibits me from — prohibits any person from destroying evidence.

But they put that — that provision inside the witness-tampering statute.

It doesn’t make sense; it doesn’t fit there.

And that just shows that Congress was not paying close attention to the headings and that that shouldn’t drive the outcome of this case.

Samuel A. Alito, Jr.:

Well, Mr. Martinez, you are really — I mean, you have arguments on all of these points, but you are really asking the Court to swallow something that is pretty hard to swallow.

Do you deny that this statute, as you read it, is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of 20 years, and then you go further and say that it is the policy of the Justice Department that this has to be applied in every one of those crazy little cases.

And this involved a business and a number of fish.

What if it was one fish?

What if it was one undersized fish that was caught by a fisherman in a national — on Federal land?

This would be — would it apply here?

Roman Martinez:

Your Honor, I want to answer that question, but I just want to clarify what I said about our policy.

Our policy is not that we prosecute every trivial matter.

That is not our policy.

I want to be very clear about that.

Samuel A. Alito, Jr.:

No, I understand that.

But if you choose to — if you want to find the guy who caught one trout that was undersized on Federal — on a Federal — on Federal land, you want to charge him with whatever regulatory offense that would be, you have to charge this, too, because this is the more severe penalty.

Roman Martinez:

We only have to charge this if — if the person with knowledge and the intent to obstruct the administration of Federal law deliberately takes that one fish and throws it overboard or destroys it so as to escape liability.

Stephen G. Breyer:

What about every camper–

Roman Martinez:

That’s what the statute says.

Samuel A. Alito, Jr.:

He catches the fish and now he sees the inspector coming toward him, throws it in the lake.

Roman Martinez:

That’s what the statute says, Your Honor.

Now, I — I appreciate the force of the hypothetical and I understand it, but I think I want to — the point I want to emphasize, because maybe there’s — I understand why the Court might have concerns about that.

The problem — there’s a mismatch, though, between Petitioner’s argument and the hypothetical.

The problem with the hypothetical is that this statute might be harsh in certain particular outlier applications.

But Petitioner is not arguing for some sort of de minimis rule, he’s not saying that this statute can’t be applied in trivial cases.

He’s arguing that an entire class of evidence is entirely outside the scope of the statute–

Anthony M. Kennedy:

But he has no — he has no doctrinal basis to make that argument other than to say that there is such a doctrine as prosecutorial discretion and, A, that it’s enforceable and, B, that it has some substance, and you’ve indicated that it has neither.

Roman Martinez:

–I — I think, Your Honor, I don’t think that — I think prosecutorial discretion is not an issue that he’s raised.

I don’t think that it’s an issue in light of this Court — what this Court has said about prosecutorial discretion.

I don’t think that would be a basis–

Anthony M. Kennedy:

Well, it seems to me that we should just not use the concept or refer to the concept at all anymore.

Roman Martinez:

–Well, Your Honor, I think that — that — again, to go back to some of the answers I was — I was giving earlier, I think that the concerns that the Court has flagged about the potential breadth of this statute, they’re serious and they’re the kinds of concerns that courts and juries and judges are going to take into consideration when they’re dealing with any of these crimes.

But the issue in this case is not — is not that.

The issue in this case is what is — what did Congress intend with the term “ any tangible object ”.

Stephen G. Breyer:

–All right.

So if that’s so, then that’s the dilemma.

Suppose I worry about Justice Alito’s single fish in the case of a camper who kicks an ember away, knowing you shouldn’t have built the campfire or picks a flower, knowing you’re supposed to let wildflowers blossom.

What about that 20 years, and you could multiply those beyond belief.

So if that’s the problem, does his client go to prison because we’ve just assumed that problem away from the case?

Roman Martinez:

No, we do not–

Stephen G. Breyer:

How — how do we handle it if, as you say, there is a genuine concern in that respect, but it wasn’t argued here?

Roman Martinez:

–I think that you write a very narrow decision that says this case is about the meaning of the term “ any tangible object ”.

And if the case — the ember case comes up or the postman case comes up, then — and if the arguments are made, then I think those arguments can be fleshed out, they can be briefed, they can be thought through by the parties, and I think they’ll be properly presented to the Court in that case.

In this case, though, this case presents just a common sense, straightforward question of statutory interpretation.

Does the phrase “ any tangible object ” actually mean what Congress said?

Does it refer to all tangible objects?

We think that the unambiguous answer based on the text of the statute, based on the history of the statute, is — is clearly yes, and we ask this Court to affirm.

Anthony M. Kennedy:

Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.

[Laughter]

Roman Martinez:

Perhaps, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Badalamenti, you have four minutes remaining.

John L. Badalamenti:

I’ll be brief.

Regarding Justice Breyer’s question regarding the void for vagueness, the government stated that we had not stated that in our brief.

It’s on pages 25 and 26, as well as squarely raised in Footnote 7.

Stephen G. Breyer:

Yes, but it wasn’t raised below.

And these are very difficult issues and it’s sort of flying blind not to have lower court opinions and the thing fully argued out before we get it.

John L. Badalamenti:

Yes, Your Honor.

We just wanted to point out where it was in the briefing in this — in this Court.

The “ tangible object ” notion is extremely important, which the justices have pointed out under Russello.

You have the fact that you have two statutes passed in the same act.

One includes different language than the other.

To presume that that language is included in there intentionally and that major significance makes false entry in all of the statutes that are — we’ve cited in our brief in Footnote 4, that reference of the reply brief — all of them are record-related statutes.

Every single one of them has a textural indication of what Congress had meant.

John L. Badalamenti:

The breadth of the statute regarding any Federal matter is — is an extraordinary thing that the American people will be walking on eggshells for if this Court were to not limit, at least, the subject matter of this.

And the last point–

Antonin Scalia:

Of course, it doesn’t entirely solve that problem, simply to narrow–

John L. Badalamenti:

–It does not — it doesn’t, Your Honor.

And Mr. Yates would open up any other constitutional issues as well.

But no, certainly the last comment is directed — is that for more than 200 years, the United States has existed without this mega, all-inclusive obstruction of justice statute with the intent to impede anything, any matter, that the possibility of the United States could or may or may never be interested in.

It didn’t create it buried within the Sarbanes-Oxley Act and this Court shouldn’t put it in there now.

For these reasons, Mr. Yates requests that this Court vacate the conviction under Section 1519, reverse, remand the decision to the Eleventh Circuit.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.