Yates v. US – The Supreme Court Says a Fish Story Is Not a Federal Case Bond v. US – Postal goes Postal
Judge Sol Wachter of the New York Court of Appeals once quipped, “a prosecutor could indict a ham sandwich if he wanted.” Perhaps these words ring true due to the vast number of acts that have been made federal crimes. So vast, in fact, that Congress apparently is incapable of telling citizens how many. Last summer, in response to the Over-criminalization Task Force of the House Judiciary Committee’s request for an accounting of all federal crimes on the books, the Congressional Research Office candidly admitted that its search terms may not have captured all possible federal crimes. Still, the CRO identified 439 new federal crimes put on the books just in the period 2008 - 2013. Id.
Just two examples of over-criminalization, if not outright absurdity, are noted here. First, a commercial fisherman off the Florida Keys was inspected by a federal agent (a state fish inspector deputized by the National Marine Fisheries Service), and cited for fishing undersized grouper. Yes, grouper. The agent made a count of the alleged undersized grouper in the defendant’s hold and instructed him to turn the fish in when he reached the dock. Upon arrival the agent’s count was short and he asked the defendant what happened to three (yes, three) of the alleged undersized grouper. Not being able to account for the missing, diminutive fish, the fisherman was indicted in federal court. His crime? Destruction, alteration, or falsification of a “tangible object” with intent to obstruct of federal investigation. 18 U.S.C. §1519. (The fisherman was also charged with that old standby, making a false statement to a federal agent in violation of 18 U.S.C. §1001. However, he was acquitted, the jury apparently accepting the commonplace that all fisherman lie.)
This week, the Supreme Court in a 5-4 decision held that the term “tangible object” under §1519, which was created out of the Sarbanes-Oxley Act, was intended only to encompass objects used to record and preserve information, not “any and all physical evidence existing on land or in the sea.” Yates v. United States, 574 U.S. ___, 2015WL773330 (2015) (Ginsburg, J., n. 3.)
The second case involved Carol Ann Bond, a microbiologist with a philandering husband, who was indicted in federal court for applying toxic, though legal, chemicals to places her husband’s mistress would touch. State and local authorities refused to prosecute, but when the Postal Inspectors became involved, they went, well, postal. Her crime? Violating the Chemical Weapons Convention Implementation Act, which makes it unlawful “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U.S.C. §229(a)(1). There’s a ham sandwich for you.
Fortunately this madness ended in the Supreme Court last year. In Bond v. US, 134 S.Ct. 2077 (2014), the Court reversed Mrs. Bond’s conviction, struck a blow for states’ rights, and established at least some limits to federal jurisdiction. Where conduct such as Mrs. Bond’s, ill-advised as it was, was adequately covered by state criminal laws, it could not be prosecuted federally, as if she were a distributor of WMD.
The Incarceration-Industrial Complex
There are just too many Americans in prison. We lead the world in prison population and are second only to the Seychelles in per capita incarceration. No wonder, what with the sagas of Mr. Yates and Mrs. Bond.
Meanwhile, it might be useful to bear in mind another commonplace, colorfully put by Racehorse Haynes: “There are more people in prison for lyin’ that there are for shootin’ and thievin’.”
 But a disgruntled patient who spread liquid mercury throughout the hospital where he was treated was properly convicted of the federal chemical weapon law. US v. Kimber, 2015WL394199 (2nd Cir. 2015). The Second Circuit distinguished Bond because the mercury incident was intended to terrorize and was not a purely local crime.
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