The U.S. Supreme Court has rendered its opinion in Yates v. United States. A fish is still a fish, but it is not a tangible object under 18 U.S.C. Section 1519, which was passed as part of the Sarbanes-Oxley Act. Under Section 1519:

Whoever 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 the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned for not more than 20 years, or both.

Yates was charged under 1519 with destroying, concealing, and covering-up some undersized groupers which he threw overboard after they were segregated and ordered preserved by Officer John Jones of the National Marines Fisheries Service.

The Court ruled 5-4 that Yates' conduct did not run afoul (or a fish) of 1519, because the little fishies were not tangible objects under that particular statute which was clearly aimed, as an examination of its title and overall language shows, at document-related cover-ups. Justice Ginsburg, writing the Opinion of the Court for a four person plurality, held that a tangible object under 1519 is really only a tangible object "used to record or preserve information." She was joined by Chief Justice Roberts and Justices Breyer and Sotomayor. Justice Alito concurred in the judgment alone, but used a textual-contextual approach similar to that employed by the plurality, stating that a tangible object under 1519 had to be "something similar to records or documents." Always careful not to offend the federal prosecutorial apparatus, Alito called it a very close case.

In dissent Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas, used a straight textual approach and pointed to the plain and ordinary meaning of tangible object–an object that is touchable. You can touch a fish. Ergo, a fish is a tangible object. You can destroy, cover-up, or conceal a fish. By doing so with the right amount of intent, you can violate 1519. End of story.

(wisenberg)