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
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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
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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
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Don’t recreate the wheel
USCCAN
Congress.gov
Westlaw “LH” database
Lexis/Nexis
Heinonline.org
ProQuest Legislative
http://www.llsdc.org/federal-legislativehistory-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 owneroccupied private home[,] . . . a paradigmatic
common-law state crime”)
Federalism/ “clear statement” requirement
• A very recent example:
– Bond v. United States, 134 S. Ct. 2077, 208994 (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 AlmendarezTorres 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]