WASHINGTON – Some U.S. Supreme Court justices question whether a law designed to prevent documentary evidence destruction passed in the wake of the Enron scandal should have been used to convict and jail Cortez commercial fisherman John Yates for catching undersized fish.
The court heard oral arguments on Nov. 5 in the case, stemming from Yates’ 2011 conviction of destroying evidence in a 2007 federal investigation of 72 undersized grouper discovered on his boat at sea by fisheries officers.
According to trial testimony, he ordered his crew to dispose of undersized grouper at sea, and officers calculated that three illegal grouper were missing when the boat docked at Cortez.
“What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?” – U.S. Supreme Court Justice Antonin Scalia
The latter charge was based on the so-called “anti-document shredding” provision of the Sarbanes-Oxley Act, which makes it a crime to “knowingly alter, destroy, mutilate, conceal, cover up, falsify or make a false entry in any record, document or tangible object with the intent to impede or obstruct an investigation.”Yates, 62, was convicted and jailed for 30 days for disposing of evidence to prevent seizure and destroying evidence to impede or obstruct a federal investigation.
Grouper aren’t objects
Yates’ attorney, John Badalamenti, argued that the provision should not extend to grouper, saying “The phrase ‘record, document or tangible object’ is confined to records, documents and devices designed to preserve information, the very matters involved in the Enron debacle.”
Former Ohio congressman, Michael Oxley, who sponsored the law, filed a friend-of-the-court brief in support of the position.
“If you look against the backdrop of the Sarbanes-Oxley Act, there is plenty of support that Congress was targeting businesses, corporations and publicly traded companies,” Badalamenti said, to which Justice Ruth Bader Ginsburg replied, “Isn’t running a fishing vessel a business?”
“It doesn’t change the fact that ‘tangible object’ doesn’t mean everything,” Badalamenti said.
Grouper are objects
A grouper is a tangible object, attorney Roman Martinez argued for the government, and the missing grouper were evidence in the investigation, and were knowingly destroyed, according to trial testimony.
“Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of federal law. He directly disobeyed that. He then launched a convoluted cover-up scheme to cover up the fact that he had destroyed the evidence. He enlisted other people, including his crew members, in executing that scheme and in lying to the law enforcement officers about it,” Martinez said.
“You make him sound like a mob boss or something,” Chief Justice John Roberts said, getting a laugh.
The court grilled Martinez on whether the law would apply to a recreational fisherman who throws a trout into a lake when approached by an officer, or a camper who extinguishes an ember from a prohibited fire, or a hiker who picks a protected wildflower and throws it away.
Prosecutors have discretion whether to charge suspects, he replied. In Yates’ case, prosecutors did not object to a 30-day sentence, a fraction of the potential 20 years the offense carries.
“But he could have gotten 20 years. What kind of a sensible prosecution is that?” Justice Antonin Scalia asked. “What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?”
Martinez said that federal justice department guidelines authorize prosecutors to charge the most severe penalty possible for an offense. Scalia responded that Congress should be more careful about the reach of its laws.
“But the point is that you could,” Roberts said, “and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say, ‘Look, if we prosecute you, you’re facing 20 years, so why don’t you plead to a year,’ or something like that. It’s an extraordinary leverage that the broadest interpretation of this statute would give federal prosecutors.”
“But I think the key point is Sarbanes-Oxley prohibits the destruction of fish,” Martinez replied, “and if you stop someone on the street and ask them ‘Is a fish a tangible object?,’ the answer would almost certainly be, would be ‘Yes.’ ”
The justices also probed the attorneys on how far the law might reach, debating whether other things could be considered “objects” under the act, from a photographic print of a fish or a catch log recording a fish’s catch to information stored in the cloud.
At the end of Martinez’ argument, Justice Anthony Kennedy quipped, “Perhaps Congress should have called this the Sarbanes Oxley Grouper Act,” prompting laughter.
It’s no joke to John Yates, who has not been able to make a living commercial fishing since the day in 2007 his boat was boarded.
He did not attend the hearing, but talked about things on Saturday that have always bothered him about the case.
The fish were not properly measured, he said, citing a difference between measuring them from the lower lip or the upper lip, and saying that the officer pushed on the mouths of the fish, making them appear shorter. He also has maintained that the fish measured shorter on the dock after being on ice than they were when they were measured at sea.
Yates said he doesn’t understand why he could be convicted for throwing fish overboard when the lower court found him not guilty of a third charge, lying to a federal officer about throwing fish overboard.
He suspects the credibility of a witness that testified that Yates ordered the crew to throw fish overboard because the witness said during proceedings that he didn’t want to go to jail.
Yates said he no longer fishes because “There’s a target on my back.” He runs a shop with his wife in Cortez called “Off the Hook.” The appeal is not costing him anything, he said, because he’s represented by a federal public defender.
Yates’ wife, Sandy Yates, and their daughter attended the hearing.
Sandy Yates said her impression after seeing the court in action was that the justices were “indignant” when Martinez spoke about “throwing the book” at her husband.
“The whole court seemed livid,” she said, adding that it seemed the case may go their way. “By the tone of it, I can’t see it going any other way, but you never know. You can’t predict them.”
A decision is expected by spring/summer 2015.