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Supreme Court to decide if law forbidding destruction of records applies to fish

Did the federal government go overboard when it used a law aimed at preventing financial scandals similar to Enron to prosecute a Florida fisherman who ditched a catch of undersized grouper that he’d been told to keep as evidence?

The Supreme Court said yesterday it will decide that next term.

The court accepted the case of John Yates, who was convicted under the Sarbanes-Oxley law passed by Congress in response to a series of financial and accounting scandals at Enron and other major corporations.

The law in part prohibits destruction of “any document, record or tangible object” meant to impede a federal investigation, and the government said the diminutive red grouper that Yates disposed of met the definition of “tangible object.”

The National Association of Criminal Defense Lawyers was among the groups urging the justices to examine Yates’s case as an example of what the group calls “overcriminalization” of petty offenses.

“Application of an anti-shredding statute to three rotten fish is an unconstitutional expansion of the law and a violation of statutory construction,” the association said in an amicus brief.

Yates was a commercial captain operating out of Cortez, Fla., in 2007 when a Florida fish and wildlife officer boarded his boat, the Miss Katie, in federal waters. Officer John Jones suspected some of the 3,000 fish in Yates’s catch were smaller than the 20-inch minimum required at the time for red grouper.

Jones found 72 that he said were too small – there’s a dispute about whether they should have been measured with mouths open or closed, but that doesn’t matter to the Supreme Court case. Jones issued Yates a citation and told him to set the fish aside as evidence when the boat returned to port.

But four days later, there were only 69 fish in the crate. Jones suspected that he was looking at different fish.

A crew member later testified that some of the fish were thrown overboard and replaced with fish closer to the required size.

A jury convicted Yates of destroying evidence, and the U.S. Court of Appeals for the 11th Circuit upheld the conviction.

Yates served 30 days in jail, received three years of supervised release and has been blacklisted by captains who fear similar federal investigations, according to a first-person article in Politico last week.

“What do the former employees of Enron and I have in common?” Yates wrote. “According to the Department of Justice, we’re both guilty of the same crime.”

Yates argues that the Sarbanes-Oxley provisions were never meant for offenses such as his. How could he have known that ditching fish would be covered by a provision of the law that carried the title of “destruction, alteration or falsification of records in federal investigations and bankruptcy,” he asked.

But the government said applying such laws to tangible objects is important.

Courts have found that the term can be applied to computers (by those trying to conceal child pornography), cocaine (being washed down a drain) and a cement mixer (altered to conceal that a safety device had been bypassed), the government’s brief said.

Yates “intentionally ordered the destruction of evidence relevant to a federal agency’s investigation of a violation of federal law committed in federal waters, intending to thwart that federal investigation,” Solicitor General Donald Verrilli wrote. “It would be surprising to discover that Congress did not intend to penalize such conduct.”

The Supreme Court will hear the case, Yates v. U.S., in the term that begins in October.

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