The government’s recent and ongoing emphasis on eliminating health care fraud, waste and abuse appears likely to increase criminal prosecutions. Government prosecutors have tremendous discretion in these cases and in-house counsel have reason to be concerned about how that discretion will be exercised. As pointed out in the following article, published in Law360 by Arent Fox White-Collar & Investigations partner Peter R. Zeidenberg, comments made by Supreme Court justices in two recent cases give reason to question whether certain DOJ prosecutors and their supervisors have perhaps been overzealous.

For questions about the article below, please contact Peter R. ZeidenbergLinda A. BaumannDavid S. Greenberg, or the Arent Fox professional who handles your matters.

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Although justice is supposed to be blind, it is not supposed to be oblivious. Yet a slew of questions and comments from the United States Supreme Court during last week’s oral argument in Yates v. United States strongly suggest that the court is, despite abundant evidence, both uninformed and unaware of what transpires on a daily basis in white collar cases around the country.

Only lawyers who have never actually defended a criminal case in federal court could have asked the questions posed by multiple justices during oral argument last week. The court expressed utter astonishment that the U.S. Department of Justice would actually subject John Yates, a commercial fisherman, to a potential 20-year prison sentence for obstruction of justice.

What did Mr. Yates do to warrant facing two decades in prison? He threw a bundle of undersized grouper overboard after being instructed by a state official to bring the suspect catch to shore. Yates, after telling his crew to “liberate” the undersized fish, then had his crew surreptitiously substitute larger fish in the crate. The crew later admitted to state authorities what they had done.

According to the government, this conduct constituted obstruction of justice. In particular, the government alleged that by tossing the grouper overboard, the fisherman violated a provision of the Sarbanes-Oxley Act of 2002, which was passed in direct response to the Enron scandal and, in particular, the shredding of potentially incriminating documents by Arthur Andersen. The statute prohibits the destruction or tampering with “any record, document, or tangible object” with the intent to influence or obstruct a federal investigation under “any matter within the jurisdiction” of any federal agency. Because the undersized fish constituted a “tangible object,” the government contends that the conduct violated the statute.

The justices expressed shock to learn that the alleged conduct could lead to a 20-year prison sentence. “This captain is throwing a fish overboard ... He could have gotten 20 years. What kind of sensible prosecution is that?” Justice Antonin Scalia wondered. “[W]ho do you have out there that — that exercises prosecutorial discretion? ... What kind of a mad prosecutor would try to send this guy up for 20 years ...?” Justice Samuel Alito challenged the government to “deny that this statute … is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of 20 years ... What if it was one fish?”

The court sounded equally surprised to learn of the Justice Department’s policy to charge defendants with the most serious provable offense, when confronted with a choice of statutes to employ. Of course, to any experienced white collar practitioners, the only thing surprising about this colloquy is the fact that the Supreme Court seems disturbingly naive about government charging decisions.

The court need only look at Bond v. United States, from its last term, to see yet another prime example of a shocking lacking of prosecutorial judgment and discretion.

In Bond, prosecutors employed an international chemical weapons treaty to convict a Pennsylvania woman who tried to injure a romantic rival by smearing rash-inducing irritants on her car door handles and mailbox. Although the “injury” was treated by rinsing with water, federal prosecutors did not feel local harassment charges were appropriate. Instead, they invoked a law governing the international use of chemical weapons during wartime. The Supreme Court overturned the conviction, holding that the feud in question was not what the statute had in mind when it referred to “combat.” That this never occurred to the government speaks volumes about the prosecutor’s judgment and the quality of his or her supervision — or lack thereof.

Taken together, these two cases are Exhibits A and B of what white collar defense attorneys have long known: Common sense, proportionality and good judgment are all too often in distressingly short supply at the DOJ.