How Can a Fish Not Be a Tangible Object?

Many are aware of the recent U.S. Supreme Court case of Yates v. United States, 2015 WL 773330 (2/25/2015) (a/k/a the “Fish Case”), in which the Court in a narrow four Justice plurality opinion (Justice Alito concurring in judgment to make it 5-4 result) ruled that a fish was not a tangible object within the scope of 18 U.S.C. § 1519. That statute makes it a crime if someone “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. The plurality held that Yates’s destruction of undersized fish after being instructed by a federal agent to secure and segregate the fish until he returned to port for further investigation did not violate the statute as a fish was not a “tangible object” under § 1519.

Justice Kagan wrote a detailed and well-reasoned dissent, joined in by Justices Scalia, Kennedy and Thomas (an interesting grouping in itself), which was somewhat waggish in its tone. In short, the dissent had great difficulty with the concept that a fish was not a tangible object and suggested that the plurality was concerned with the broad sweep of a law that could punish someone for up to 20 years for tossing a few undersized fish overboard so to avoid a potential fine. Perhaps the dissent’s piece de resistance was the citation to Dr. Seuss (a/k/a Theodor Seuss Geisel).

As the plurality must acknowledge, the ordinary meaning of “tangible object” is a “discrete thing that possesses physical form.”. . . A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in § 1519, as no one here disputes, covers fish (including too small red grouper).

Give the opinion a read, it’s time well spent. Also, it’s the latest example of bad facts making bad law. As Dr. Seuss’s book begins, “From there to here, from here to there, funny things are everywhere.”