STATUTORY CONSTRUCTION QUESTION:

When is a fish NOT a “tangible object”? ANSWER:

Yates v. United States, 135 S. Ct. 1075 (2015):

• Was a fish a “tangible object” for purposes of 18 U.S.C. §1519 (prohibiting knowing destruction of “any record, document, or tangible object” with intent to obstruct)? HELD: NO!

• “[A]lthough dictionary definitions of the words ‘tangible’ and ‘object’ bear consideration, they are not dispositive of the meaning of ‘tangible object’ in § 1519.” Id. at 1082.

• Using various tools of statutory construction, Court held that “tangible object” for purposes of 18 U.S.C. §1519 was limited to “tangible objects” “used to record or preserve information.” Id. at 1088-89; see also id. at 1089-90 (Alito, J., concurring in the judgment). The goal of statutory construction is to ascertain the intent of the drafters

• As Yates shows us, although dictionary definitions of words are a consideration, they are not the be-all and end-all of the statutory construction process

• Other considerations – both textual and nontextual – play a role in that process TEXTUAL CONSIDERATIONS Basic principle • Statutory language must be read in context.

• “words are chameleons, which reflect the color of their environment” – Judge Learned Hand in Commissioner v. National Carbide Corp., 167 F.2d 304, 306 (2d Cir. 1948). Context Matters

• A statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context. Ordinary v. Specialized Meaning

• Words are to be understood in their ordinary meaning unless the context indicates that they bear a “technical sense.” Technical or Specialized Meaning?

• Defined in the statute – RICO “enterprise” in 18 U.S.C. § 1961 • Defined elsewhere in the Code – Dictionary Act, 1 U.S.C. § 1 – 6 • Defined at common law – Congress assumed to know and incorporate • Defined by precedent – Stare decisis canon Ordinary Meaning

• Dictionaries – Black’s Law Dictionary & Regular Dictionaries • But can have multiple definitions • So again must consider Context

• “Not to make a fortress of the dictionary.” – Judge Learned Hand in Cabell v. Markham, 148 F.2d 737, 739 (2d Cir 1945). Canons of Construction • Used to draw inferences about the meaning of statutory language • Tools rather than rules • 187 different canons were used in opinions by the Rehnquist and Roberts Courts! • “there are two opposing canons on almost every point” Whole Act Rule

• Give effect, if possible, to all statutory language

• Statutes should be construed to avoid rendering any statutory language superfluous Rule of the Last Antecedent • A limiting clause should ordinarily be read as modifying only the noun or phrase that it immediately follows. • But that rule is “not an absolute and can assuredly be overcome by other indicia of meaning.” – Paroline v. United States, 134 S. Ct. 1710, 1721 (2014) (citing United States v. Hayes, 555 U.S. 415 (2000)). Sample Grammatical Rules

• and/or • definite/indefinite article • shall/may • singular/plural • tense • punctuation Bad Grammar Rule

• “The statute is awkward, and even ungrammatical; but that does not make it ambiguous.” – Lamie v. United States Trustee, 540 U.S. 526, 534 (2004). • Permits editing grammar in statutes. – aggravated felony includes “a crime of violence . . . for which the term of imprisonment at least one year.” Some Latin Canons

• Noscitur a sociis • Ejusdem generis • Expressio unius est exclusio alterius Noscitur a sociis

• A word is known by the company it keeps. Noscitur a sociis

• In child pornography statute, words “promotes” and “presents” were read in context of string of operative verbs – including “advertises,” “distributes,” and “solicits”– to require a transactional connotation.

– United States v. Williams, 553 U.S. 285, 294 (2008) Ejusdem generis

• When a general phrase follows a list of specifics, it should be read to include only things of the same type

food Ejusdem generis • “burglary, arson, extortion, and . . . use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another” • enumerated offenses read as limiting the residual clause to crimes roughly similar in kind as well as in degree of risk posed – Begay v. United States, 553 U.S. 137 (2008) Expressio unius est exclusio alterius • The inclusion of one is the exclusion of others Expressio unius est exclusio alterius • When Congress explicitly enumerates certain exceptions, additional exceptions are not to be implied. • Federal statute specifically pre-empting state laws punishing employers implies the lack of pre-emption for state law punishing “those who seek or accept employment.” – Arizona v. United States, 132 S. Ct. 2492, 2520 (2012) (J. Scalia, dissenting opinion). Some Other Canons

• Same Phrasing in Same or Related Statutes – A term appearing in several places in statutory text is generally read the same way each time it appears • Different Phrasing in Same Statute – Particular language included in one section of a statute but omitted in another is assumed to be intentional Congress Knows How to Say … • An interpretation may be rejected because when Congress means that interpretation it knows how to say it

• “For or because of any official act” in 18 U.S.C. § 201(c) required a nexus. Congress knows how to prohibit payments without regard to purpose, see § 209. – United States v. Sun Diamond, 526 U.S. 398 (1999) Other Tools Titles/Headings • May shed light on ambiguous language. • But cannot limit the plain meaning of the text or add to it. • “As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender . . . possesses a gun.” – Begay v. United States, 553 U.S. 137, 147 (2008) Findings/Purposes Sections

• Applying general principle that statutory language should be interpreted in a manner consistent with statutory purpose. • In defining RICO “enterprise,” Court considered that “Congressional Statement of Findings and Purpose” was the eradication of organized crime. – United States v. Turkette, 452 U.S. 576 (1981) Legislative History Plain Meaning Rule

• Courts are not to rely on legislative history when the statutory language is plain. • Only when the statute is ambiguous.

• Exception: when the plain meaning would produce an “absurd result.” Plain v. Ambiguous

• Disagreement over when “ambiguous.”

• “The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” – Justice Frankfurter in United States v. Monia, 317 U.S. 424, 432 (1943) Legislative History Matters

• Even if the language is plain, courts refer to legislative history to support their interpretation or to refute a contrary interpretation. Legislative Process • Bill introduced into the House or Senate (H.R.#; S.#) • Sent to Committee • May be sent to Subcommittee • Hearings • Comes out of Committee with a Report • (H. Rept. #; S. Rept. #) • Floor debates & Roll call votes • Passes one chamber, sent to next (repeat) • Sent to President Types of Legislative History

• Drafting History of the Statute • Committee Reports • Hearings • Congressional Debates • Roll Call Votes • Presidential Signing Statements Drafting History of Statute

• Extremely useful form of legislative history • Comparing the various versions of the bill as it moved through the legislative process • Arguments regarding the meaning of a statutory term may be made based on the inclusion, deletion, or modification of language in the text of the bill. Committee Reports • Most important • Usually a report from each committee • Reports usually reprint the text of the bill, describe its purposes, and give reasons for the committee’s recommendations • Reports often include the legislative history of the bill • May have a section-by-section analysis Conference Committee Reports

• The Gold Standard of Committee Reports • Come at the end of the legislative process • May give reasons for the compromises that were made Congressional Debates

• Can be useful if they include discussions for or against proposed bills and amendments

• Congressional Record contains a transcript of the floor debates – Not necessarily verbatim Not Considered Persuasive

• Hearings – because testimony reflects the views of the parties testifying not necessarily the views of Congress

• Presidential Signing Statements – made after the fact and not part of the process Subsequent Congressional Acts • Statements by a later Congress about earlier statute are not persuasive • Subsequent legislation declaring the intent of earlier statute is persuasive • Congress reenacting a statute and leaving it unchanged after judicial interpretation – May be viewed as Congress having ratified the judicial interpretation Sources of Legislative History • Don’t recreate the wheel • USCCAN • Congress.gov • Westlaw “LH” database • Lexis/Nexis • Heinonline.org • ProQuest Legislative • http://www.llsdc.org/federal-legislative- history-guide#Finding Use Legislative History

• Despite the controversies, it is being ineffective as a lawyer not to research and argue legislative history for your client since Courts routinely look to it. NONTEXTUAL CONSIDERATIONS Constitutional doubt/ constitutional avoidance “[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court’s] duty is to adopt the latter.”

United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (citation omitted) Constitutional doubt/ constitutional avoidance

Thus, “‘[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.’”

United States v. LaFranca, 282 U.S. 568, 574 (1931) (citations omitted) Constitutional doubt/ constitutional avoidance

• Two caveats: – Alternative reading must be “fairly possible” – There must be “grave doubt” about the constitutionality of the primary reading; it is not enough that it simply raises an unanswered, or even a merely somewhat doubtful, constitutional question.

Almendarez-Torres v. United States, 523 U.S. 224, 238-39 (1998) Constitutional doubt/ constitutional avoidance See United States v. X-Citement Video, 513 U.S. 64 (1994) (relying in part on “constitutional doubt” principle to reject the “most natural grammatical reading” of statute) Federalism/ “clear statement” requirement

• “[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.”

• “[W]e will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.”

United States v. Bass, 404 U.S. 336, 349 (1971) Federalism/ “clear statement” requirement

• What this means is, the more a crime looks like a purely local one, traditionally punished under a State’s police power, the clearer it must be that Congress intended to make it a federal crime, e.g.:

– Jones v. United States, 529 U.S. 848, 858 (2000) (invoking principle to reject reading of 18 U.S.C. § 844(i) that would “encompas[s] the arson of an owner- occupied private home[,] . . . a paradigmatic common-law state crime”) Federalism/ “clear statement” requirement

• A very recent example:

– Bond v. United States, 134 S. Ct. 2077, 2089- 94 (2014) (invoking principle to hold that defendant’s use of small amounts of toxic chemicals against romantic rival was not the use of a “chemical weapon” punishable under 18 U.S.C. § 229) Presumption in favor of mens rea /scienter Presumption in favor of mens rea /scienter

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ . . . .” Morrissette v. United States, 342 U.S. 246, 250-51 (1952) Presumption in favor of mens rea /scienter • There is thus a “presumption favoring mens rea.” Staples v. United States, 511 U.S. 600, 606 (1994).

– “[O]ffenses that require no mens rea are disfavored, and [the Court] ha[s] suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id. (citations omitted). Presumption in favor of mens rea /scienter • What about where the statute DOES contain a mens rea /scienter, but it is unclear how far that mens rea / scienter “travels” down the statute? • At one time, it seemed as though the Supreme Court presumed that a scienter requirement applied only “to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U.S. at 72. Presumption in favor of mens rea /scienter • It now appears, however, that the Supreme Court has adopted the view that a statutory mens rea ordinarily applies to ALL of the elements of the offense, without any requirement that they mean the difference between “innocent” conduct and otherwise. See Flores-Figueroa v. United States, 556 U.S. 646, 652-53 (2009).

• This comports with the Model Penal Code, which suggests that a scienter requirement applies to all material elements of the offense. See MPC § 202.1. Remedial Legislation

• See, e.g., Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (“In addition, we are guided by the familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.”) Rule of Lenity Rule of Lenity

“In these circumstances – where text, structure, and history fail to establish that the Government’s position is unambiguously correct – [the courts] apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”

United States v. Granderson, 511 U.S. 39, 54 (1994) Rule of Lenity

Be aware though, that, some formulations of the rule of lenity appear to make it much tougher to meet:

“The rule of lenity, however, is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seized everything from which aid can be derived, it is still left with an ambiguous statute. The rule of lenity comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.”

Chapman v. United States, 500 U.S. 453, 463 (1991) (internal quotation marks, brackets, and citations omitted) Rule of Lenity

We like the way Justice Scalia has put it:

“Even if the reader does not consider the issue to be as clear as I do, he must at least acknowledge, I think, that it is eminently debatable – and that is enough, under the rule of lenity, to require finding for the petitioner here.”

Smith v. United States, 508 U.S. 223, 246 (1993) (Scalia, J., dissenting) Rule of Lenity

At least three current Justices believe that “it is not consistent with the rule of lenity to construe a textually ambiguous penal statute against a criminal defendant on the basis of legislative history.”

United States v. R.L.C., 503 U.S. 291, 307 (1992) (Scalia, J., concurring in part and concurring in the judgment) (joined by Justices Kennedy and Thomas); see also id. at 307-11 Rule of Lenity

• Note that in Granderson the Supreme Court appeared to suggest that the rule of lenity is defendant-specific. See Granderson, 511 U.S. at 57 n.15.

• Arguably, this means that where a statute is ambiguous and subject to different interpretations, you should go with the interpretation most beneficial to the defendant. A Case Study: Yates v. United States A Case Study: Yates v. United States

• Dictionary definitions of “tangible” and “object”  NOT DISPOSITIVE

• Caption of § 1519 and title of enacting section of Sarbanes-Oxley Act

• § 1519’s position within applicable chapter of U.S. Code A Case Study: Yates v. United States

• Timing of passage of § 1519 with respect to another statute and avoiding reading that would make that other statute superfluous

• Noscitur a sociis

• Ejusdem generis

• Rule of lenity Good luck! JUDY FULMER MADEWELL Assistant Federal Public Defender Appellate Section Western District of Texas 727 E. César E. Chávez Blvd., Suite B-207 San Antonio, Texas 78206-1278 210-472-6700 Fax: 210-472-4454

BIOGRAPHICAL INFORMATION

EDUCATION B.A. with Highest Honors, University of Texas at Austin J.D. with Honors, University of Texas at Austin

PROFESSIONAL ACTIVITIES Assistant Federal Public Defender, Western District of Texas, Appellate Section, since 1998 Assistant District Attorney, Bexar County District Attorney’s Office, 1995 to 1998 - Trial and Appellate Sections Briefing Attorney, Judge Sam Houston Clinton, Texas Court of Criminal Appeals, 1994 to 1995

ACADEMIC ACTIVITIES Adjunct Professor of Law, St. Mary’s Law School, since 2005 - Constitutional Criminal Procedure, Federal Criminal Law, Texas Criminal Procedure Instructor, Appellate Writing Workshop for Federal Defenders, Washington, D.C., 2003 to present Adjunct Professor, Criminal Justice Department, University of Texas at San Antonio, 2001 to 2005 - Legal Research and Writing

Email: [email protected] Timothy Crooks Tim Crooks graduated with a B.S. (summa cum laude) from Tulane University in 1983, and received his J.D. (magna cum laude) from Tulane Law School in 1986. Immediately after graduating from law school, he clerked for Associate Justice Walter F. Marcus, Jr., of the Louisiana Supreme Court. After short stints in private practice and as a staff attorney at the United States Court of Appeals for the Fifth Circuit, Mr. Crooks joined the office of the Federal Public Defender, Northern District of Texas, where he served as an Assistant Federal Public Defender from 1990 to June of 2001, and the Chief of Appeals from 1993 to 2001. In July of 2001, he joined the office of the Federal Public Defender for the Southern District of Texas, where he presently serves as the Chief of the Appellate Section in Houston, Texas. He was named an Outstanding Assistant Federal Public Defender at Advanced Seminar for Federal Defenders, Minneapolis, Minnesota, May 1999. In 2014, he was awarded the Gregory S. Coleman Outstanding Appellate Lawyer Award by the Texas Bar Foundation. Mr. Crooks briefed and argued the federal death penalty case of Louis Jones v United States before the United States Supreme Court in 1998-1999, and he assisted in the United States Supreme Court briefing and oral argument preparation for Almendarez- Torres v United States in 1997-1998. He was lead counsel in Reymundo Toledo-Flores v. United States, U.S. Sup. Ct. No. 05-7664, argued before the Supreme Court in October Term 2006. He served as the President of the National Association of Federal Defenders from 2005 until 2007. He is a Governor Emeritus of the Board of Governors of the Bar Association of the Fifth Federal Circuit.

Email: [email protected]