Could the Supreme Court’s Fish Case Decision Free the Boston Bomber’s Friend?

Harlan J. Protass, attorney for Azamat Tazhayakov.

Photo by Darren McCollester/Getty Images

Last Wednesday, the Supreme Court handed down a decision in one of the wackier cases this term, Yates v. United States. Yates involved a fisherman who was discovered illegally catching undersize grouper and quickly threw the evidence—his shrimpy grouper—overboard. The government tried to charge Yates under the Sarbanes-Oxley Act of 2002, which forbids the destruction or concealment of “any record, document, or tangible object” in order to impede a federal investigation. Five members of the court held that fish aren’t a “tangible object” within the context of the statute. Four disagreed. Both sides made some good jokes, and the court moved on to its next order of business.

But for Azamat Tazhayakov, a good friend of Boston bombing suspect Dzhokhar Tsarnaev, Yates was the beginning, not the end, of a complex legal struggle. Back in July, Tazhayakov was found guilty of obstruction an investigation into Tsarnaev. But the judge delayed his sentencing because the Supreme Court’s ruling in Yates, which was then pending, could affect his case. Now the justices have decided Yates—and the outcome looks pretty good for Tazhayakov. (“I would say that I am purchasing champagne,” his attorney told the Boston Globe, “but I am not ready to open it yet.”)

Here, in a nutshell, is how Yates could create a loophole through which Tazhayakov might wriggle his way to freedom. Soon after the bombing, Tazhayakov went into Tsarnaev’s room and removed a laptop computer and a backpack. The computer contained various documents and images; the backpack contained fireworks, a jar of Vaseline, and a thumb drive. Federal prosecutors argued that these items were “tangible objects” under Sarbanes-Oxley and charged Tazhayakov with illegally concealing them. A jury mostly agreed and convicted Tazhayakov, who could face up to 20 years for the charge.

So far, so good for the government. But here’s where the waters get muddy. In Yates, the Supreme Court held that a “tangible object” is either an item used “to record or preserve information”—especially “paper and electronic documents and records”—or an item “similar to records or documents.” Surely a computer fits into those broad categories. But here’s the problem: The jury didn’t convict Tazhayakov of removing the computer. The jurors seem to have believed that Tazhayakov innocently took the computer to resell it, but nefariously took the backpack to impede the investigation. In effect, the jury split the difference, which didn’t seem like a big deal at the time.

That outwardly minor decision, however, may soon drive a stake through the heart of the government’s case. A backpack is surely not an item used “to record or preserve information,” and doesn’t sound particularly like an item “similar to records or documents.” Under the newly minted Yates rule, then, Tsarnaev’s backpack is likely not a “tangible object” within the meaning of Sarbanes-Oxley—rendering his conviction under that law unjust.

But what about the thumb drive contained within Tsarnaev’s backpack? Surely that qualifies as a “tangible object” used to store information. If prosecutors had proved that Tazhayakov removed the backpack with the intent to hide the thumb drive—if they had simply proved that Tazhayakov peeked inside the bag, saw the thumb drive, and went ahead with his plan to hide it—Tazhayakov’s conviction would be sound. Yet prosecutors inexplicably failed to present any evidence at trial that Tazhayakov knew about the presence of the thumb drive. And because Tazhayakov is protected against double jeopardy, the government will never get a chance to reargue the case with a focus on the thumb drive.

Perhaps the most galling aspect of this mess is how entirely unnecessary and avoidable it is. Prosecutors had a slam-dunk obstruction of justice case against Tazhayakov. But rather than charging Tazhayakov under a garden-variety obstruction statute, the government chose Sarbanes-Oxley, an obstruction statute on steroids. (The law was enacted post-Enron to bust companies that destroy their own records of malfeasance.) The reason for this choice is obvious: Under another statute, Tazhayakov might have gotten a few years behind bars; under Sarbanes-Oxley, he could get 20. Now, thanks to prosecutors’ hubris, he might get none. Tazhayakov’s saga, then, is ultimately just another case of prosecutorial overreach—one that appears poised to backfire spectacularly.