Supreme Court

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.

Credit: C-SPAN

"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.


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  1. “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.”

    Weird – me sitting here thinking the exact opposite, and that the “triviality” of the “offense” might have some bearing on the sentence. Or whether something even gets prosecuted.

    Silly old Almanian!

    1. Sounds like the SC might be swinging back towards ‘rule of lenity’ territory.

  2. “Is there any guidance that comes from [the Justice Department] to prosecutors?” she asked Martinez.

    Prosecute any offense to the absolute fullest extent the law allows.
    Unless the criminal suspect is a member of the political caste.

    1. Actually, that’s exactly what his answer was.

      MR. MARTINEZ: Your Honor, the ?– my understanding of the U.S. Attorney’s Manual is that the general guidance that’s given is that the prosecutor should charge ?? once the decision is made to bring a criminal prosecution, the prosecutor should charge the ??– the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle. In this case that was Section 1519.

    2. The advantage of positve law is that those exceptions can be written into the law. Just like how Congressmembers are exempt from insider trading. Or basically any other legal power the state has but citizens do not.

      1+1=2 for you, 1+1=3 for me, and then later we can change the law to state 1+1=4 on tues and wed.

      1. Yet, idiots still argue that the state is necessary or else we would have chaos.

  3. I suppose under Sarbanes-Oxley you could also prosecute a 19-inch long fish for growing until it was long enough to be legally caught, since that would alter a material object in a way that would influence an investigation.

    1. And the court case would be United State v. Mr. Limpet

  4. So Martinez says the prosecution was about the destruction of evidence, but the evidence wasn’t destroyed– it was returned to the ocean from which it came.

    1. It was concealed by all that water in the ocean.

      1. Just like flushing the stash.

    2. To await a fisherman of more discriminating taste.

      1. If the fish was still alive that is.

  5. at 20 years per email destroyed, the IRS has a lot of time to serve.

  6. A somewhat similar felony case in the past:…..ut-not-alo

    It was no joke. At trial, he was found guilty and sentenced to more than eight years, plus forfeiture of nearly $1 million.

    He decided not to plea to some truly fucked up charges, and this is what happens.

    All for transporting a couple undersized lobsters in plastic bags instead of boxes.

  7. So basically, if you accidentally catch an under-limit fish, the law says that you are a criminal unless you throw it back immediately after becoming aware you caught it.

    But if you do throw it back, the law says you are a criminal for destroying evidence.

    Right then. The federal government is on the verge of abolishing the US fishing industry. All it will take is SCOTUS deciding in favor of the prosecution on this matter.

  8. The entire law is unconstitutional. If you take the totality of this case, it shows where America has arrive… or should I say, where we the people have allowed America to arrive.

    SarbOx could, for instance, apply to someone flushing a baggie of cocaine down the toilet if he’s surprised by a knock on the door, and fears it might be cops. Should those cops turn out to be DEA agents, they would fall “under the jurisdiction of any department or agency of the United States”

    People talk about the death penalty being cruel and unusual punishment, but they forget about laws such as SarbOx, in which someone throwing a fish into the water can receive 20 years in prison.

    Fuck this country in the ear. We need to start taking this fucking shit back. I don’t care how racist that sounds.

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