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A fish tale:US Supreme Court and missing grouper

November 5, 2014

WASHINGTON (AP) — The U.S. Supreme Court on Wednesday appeared sympathetic to a fisherman who says the government went overboard in prosecuting him for throwing undersized grouper off his boat.

But the justices seemed to struggle over how to limit the reach of a law meant to tackle corporate fraud in the wake of the Enron accounting scandal — not to dole out punishment over some discarded fish.

The court heard arguments in the case of John Yates, a Florida fishing boat captain who claims he was wrongly convicted of destroying evidence — namely, the fish — that were under the legal minimum catch size in the Gulf of Mexico.

Critics have derided the case as a prime example of government overreach. The Obama administration says it is simply enforcing the plain language of a law that prohibits destruction of “any tangible object” during an investigation.

Justice Antonin Scalia said he was stunned at the very idea that the government decided to prosecute Yates under a statute that could bring up to 20 years in prison.

“What kind of a mad prosecutor would try to send this guy up for 20 years,” Scalia asked Justice Department attorney Roman Martinez.

Martinez said prosecutors recommended 21 to 27 months in prison and the trial judge only sentenced Yates to 30 days in jail. But he stressed that Yates had disobeyed officers, covered up his scheme and enlisted other crewmembers to lie.

“You make him sound like a mob boss or something,” Chief Justice John Roberts said as laughter erupted in the court.

Roberts said the law gave the government “extraordinary leverage” to prosecute anyone who throws fish off a boat and get them to plead guilty. He suggested the case was similar to one decided earlier this year, in which the Supreme Court faulted the government for using an anti-terrorism law to prosecute a woman who spread deadly chemicals around the home of her husband’s mistress.

Justice Stephen Breyer said the law might be “void for vagueness” if there isn’t a clear way to limit its scope.

“If you can’t draw a line, it seems to me that the risk of arbitrary and discriminatory enforcement is a real one,” Breyer said.

The case started in 2007 when a Florida fish and wildlife officer inspected Yates’ boat and discovered 72 grouper that appeared to be less than 20 inches long, the minimum length permitted by law. The officer ordered Yates to return to port so the fish could be seized.

But when the vessel arrived, the officer found only 69 undersized fish on board. The officer suspected these were not the same fish he had measured before. A crewmember later testified that Yates had ordered the undersized fish to be tossed overboard and replaced.

Prosecutors charged Yates under the Sarbanes-Oxley Act of 2002, passed in response to the Enron accounting scandal when scores of documents were shredded to conceal wrongdoing. Part of the law prohibits knowingly altering or destroying “any record, document, or tangible object” with the intent to obstruct an investigation.

As frustrated as the justices were with the government’s position, they also asked pointed questions of Yates’ lawyer, John Badalamenti, a federal public defender. He argued that the phrase “tangible object” only means items used to preserve information such as computers, servers or other storage devices.

Later, Justice Anthony Kennedy joked: “Perhaps Congress should have called this the Sarbanes-Oxley-Grouper Act.”

A decision is expected by next summer.

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Follow Sam Hananel on Twitter at http://twitter.com/SamHananelAP

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