SCOTUS Confronts ‘Mad Prosecutor’ in Illegal Fish Case

Under the Sarbanes-Oxley Act of 2002, it is a federal crime
carrying a penalty of up to 20 years in prison to alter, destroy,
falsify, mutilate, cover-up, or conceal “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.”
More commonly known as the anti-shredding provision, this law was
enacted in the aftermath of Enron financial scandal. In effect, it
criminalizes the willful destruction or falsification of financial
records that might prove useful to the government in a current or
future prosecution.

Yet in 2010 a Florida commercial fisherman named John Yates was
convicted under this federal law because he ordered his crew to
throw 72 under-sized red groupers back into the water after a
federally deputized inspector found those fish to be illegally
undersized (at the time, red groupers had to be at least 20 inches
long to be legally fished). Yates was sentenced to 30 days in
prison for his actions. In 2013 the U.S. Court of Appeals for the
11th Circuit upheld
Yates’ conviction under the Sarbanes-Oxley Act, holding that
because a fish is a “tangible object,” Yates broke the law by
“knowingly disposing of undersized fish in order to prevent the
government from taking lawful custody and control of them.”

At
oral argument today, the U.S. Supreme Court was asked to
consider whether this prosecution was a valid use of federal power
or a case of prosecutorial overreach. Judging by the justices’
questioning, the fishy prosecution may well end up floating in the
chum bucket.

“Is
there any other provision of Federal law that has a less penalty
than 20 years that could have been applied to this—this captain
throwing a fish overboard?” Justice Antonin Scalia asked Roman
Martinez, assistant to the solicitor general. “What kind of a mad
prosecutor would try to send this guy up for 20 years or risk
sending him up for 20 years?”

Justice Ruth Bader Ginsburg followed up with a similar critique.
“Is there any guidance that comes from [the Justice Department] to
prosecutors?” she asked Martinez.

“You make [Yates] sound like a mob boss or something,” observed
Chief Justice John Roberts, prompting laughter in the courtroom. “I
mean, he was caught” throwing fish back into the water.

“You are really asking the Court to swallow something that is
pretty hard to swallow,” concurred Justice Samuel Alito. “Do you
deny that this statute, as you read it,” he said to Martinez, “is
capable of being applied to really trivial matters, and yet each of
those would carry a potential penalty of 20 years, and then you go
further and say that this has to be applied in every one of those
crazy little cases.”

But Martinez refused to second guess the actions of the federal
prosecution. “The prosecution was about the destruction of the
evidence,” he declared, “and I think it would be a very strange
thing if this Court were to say that the obstruction of justice law
is somehow applied differently when the offense is trivial.”

A ruling in Yates v. United States is expected by June
2015.