Sunday, October 12, 2014

It's not about the grouper, it wasn't even square. Yates v Feds

This Supreme Court case revolves around local commercial fisherman John  Yates. The facts of his original case in many ways no longer matter. Unfortunately for Mr. Yates he is now at the center of a maelstrom about the application of a Federal  law. It's also a sad story. It made Mr. Yates a felon, destroyed his livelihood, and represents a legal overreach that could potentially happen to anyone. Common sense has apparently left the Federal prosecution system.

A short summary of what happened is as follows. Mr Yates and and his crew were fishing for Red Grouper offshore when his vessel was boarded by a Florida Fish & Wildlife officer. The officer had been deputized to operate in Federal waters where the vessel was located. The officer found some of the 1700 pounds of Red Grouper frozen in the hold were undersized. 72 of them to be exact.

I just want to interject a couple of notes here regarding some of Mr. Yates defense arguments. He alleges that the officer did not follow Federal statutes (50 C.F.R. § 622.2) regarding how to measure fish.  I will save you some of the pain of grinding through the document, and now you will know how to measure a fish.

"The straight-line distance from the tip of the snout to the tip of the tail (caudal fin), excluding any caudal filament, while the fish is lying on its side. The mouth of the fish may be closed and/or the tail may be squeezed together to give the greatest overall measurement."

The second argument he tendered is fish when frozen, which is critical in the hot Florida temperatures, are shorter than when thawed. I have talked with local fishermen, and they agree. Not in exactly how much smaller, but all say a frozen bent fish is hard to measure in the first place.

This in the end, is also no longer important either. To continue the story, 72 undersized fish are put in a container and Mr. Yates is ordered to retain them until he reaches port for inspection by the National Marine Fisheries Service. Before returning to port Mr. Yates ordered the crew to dump the fish and replace them with fish of  nearly the correct size. Are you ready?

Most of us have seen The Deadliest Catch on TV. They use a handheld gauge to measure the crab's shell. When you watch them sorting a catch, they can spot the obviously large ones and they go straight to the tank. The questionable ones get measured. I think in every large haul in the quest to get things done quickly occasionally a few that are slightly undersized will get through. I also think the phrase "Close enough for government work" is in play."

When the boat reaches port the container has only 69 slightly undersized fish. Three are missing. A crew member later admits that sequestered fish had been dumped overboard and replaced. This is the real start of the story.

Like the crab fishermen, if you you're caught with undersized fish, you get a penalty. It's a civil matter like a parking ticket. And in this case Mr. Yates was cited and penalized. The matter was put to bed.


"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in 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 or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both." The highlighted words "Tangible Object," that's the three missing Red Grouper.

This law is more colloquially known as the Sarbanes–Oxley act and or Sarbox. The section of the law above is known as the anti-shredding provision. This was legislation that arose out of the collapse of Enron, Tyco Int'l, Worldcom and others. In simple words the intent of this piece of legislation was to make it illegal to shred or destroy documents, computer records and similar materials that were required for a Federal investigation of a corporation's activities. I don't know about anyone else, but the intent seems clear, and I can't see how at any practical level that it can be construed to now apply to a fisherman and some missing grouper.

Mr. Yates has two other Federal charges added to the above, goes to court, and loses on two of three charges. The judge buys the Federal Prosecutors argument that a "tangible object" as described in the Sarbanes–Oxley act can be a fish. Since a fish is now a tangible object, and it was destroyed by dumping it overboard, Mr Yates loses the case and is sentenced to 30 days in prison. It could have been much worse, the penalty can be up to 20 years in prison. He appeals his conviction and now the Supremes get to decide what a "Tangible Object" really is.

One of the other defences Mr. Yates argues is "Lack of Fair Notice." What this means is there is no way he could have reasonably, or possibly known that his act of discarding the said three grouper was a Federal crime as it was applied to Sarbox. I certainly didn't know this was possible, and I think few if any readers know this either.

This court case and conversation is in part about the subject of "Over criminalization." Today there are over 4500 Federal laws governing criminal behavior. Add to this the about 300,000 criminal Federal regulations. These are estimates because of the difficulty involved in even trying to count them. Mix well, and add a dash of Sarbox out of context. You have just provided Federal Prosecutors with almost limitless ways to make anyone they want a criminal. The application of the Sarbanes–Oxley act anti-shredding provision is the icing on what could be a very onerous cake for the public.

The Government's case is the words "Tangible Object" means anything solid, and would most likely include things not quite so tangible like oxygen gas. The term they apply is "Natural Meaning", and they argue the context in which "Tangible Object" is used in the Sarbox legislation has no bearing. A law is a law, if it looks like a duck....

The defense is saying two things. The application of the Sarbanes–Oxley act was inappropriate, and not the law's purpose or intent, and the use of "Tangible Object" should be placed in context with the other words used in the description like record, document et al. Hard drive, computer disks, thumb drives and the ilk fit the "Tangible Object" context well. Fish, not so much.

My take is if the original writers of the legislation had added fish to the list they would have laughed later about it over a beer, and removed it promptly before anyone saw it. I would suggest to the Justices they should do this and see how well it seems to fit the the intent. Here is what is looks like.

"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, fish or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction....."

Hmmm... when you do that, fish seems out of context and not inline with the purpose of the act. This doesn't appear to be rocket science!

The real crime here wasn't the undersized grouper, but the unfathomable and unbelievably inane, and bordering on cruelty behavior of the prosecutors who used Federal law, and huge sums of the publics money to pursue this minor infraction in the first place. They must have been too busy working on this case when the bankers and their collective greed caused the near collapse of the US economy and the recession. Few involved with that were ever prosecuted. I guess the ones who made hundreds of millions of dollars peddling bad mortgages wore expensive suits and seemed be be nice folks, unlike a weathered fisherman in Cortez Florida.

"It will be of little avail to the people if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood" James Madison

This is one of the many amicus curiae briefs filed on behalf of Mr. Yates


  1. Bill - this section explains it all to me ... "Mr. Yates is ordered to retain them until he reaches port for inspection by the National Marine Fisheries Service. Before returning to port Mr. Yates ordered the crew to dump the fish and replace them with fish of nearly the correct size

  2. Anon, thank you for the comment, but I'm not sure what you meant. It's understood Mr, Yates, from court records at any rate, did have 72 undersized grouper in the 1700 pounds of grouper on the boat. It also appears clear that under applicable laws, as many fishermen are aware of, Mr. Yates was cited and penalized for the undersized fish. It's also clear he threw the evidence away, at least the three missing fish the case is built around. There is other Federal code that says almost the identical thing as the Sarbox act that makes this same act a misdemeanor.

    What is not clear is why three years later he was charged using the Sarbox act anti-shredding provision, and with it a potential 20 year sentence for three missing fish.

    As I mentioned, Mr. Yates and his fish are no longer part of the story.

    The issues are:
    Should the intent of congress be considered by the courts in interpreting legislation? Or is this not important?

    Or do the words in the legislation just stand alone and are taken in their "Natural Meaning" implying what the dictionary says is the definition. ie tangible and object is how you interpret it. In this later case the Federal prosecutors gets to decide what the words mean, and how they are applied. Look up the word "object" and see the many definitions there are.

    Lastly is the subject of Overcriminalization. With over 300,000 federal regulations now subject to criminal action by Federal prosecutors and 4500 criminal Federal laws it has become virtually impossible to know whether you have committed a Federal crime or not as Mr. Yates has learned and any of us could learn in the future.

    Hence the quote I used from James Madison.

  3. So often, the cover-up is far more serious than the initial crime (or tort if a civil matter). Things like perjury, destruction of evidence, obstruction of justice, etc. often escalate the matter to felony level. Ask Bill Clinton. ("I did not have sexual relations with that woman").

    The enforcement people were stupid, and was the crew who couldn't even count to 72, Duh!

    The enforcement officers should have seized the illegal fish while still on the water, or at minimum, sealed the container with tamper-proof evidence tape, standard procedure in my agency and most others. Technically, there was no chain-of-custody of the evidence.

  4. Just to clarify. FWC testified at trial he does NOT measure fish in accordance with federal law. He measures the grouper from the top lip.
    The law states, mouth may be open tail may be pinched, whichever gives the GREATEST length of the fish. Look at your picture above, the bottom lip sticks out further. Also, judge ruled fish are to be measured in harvest state, not after buried on ice for 4 days. We have the two measurement lists. The fish are on average 1/2 inch bigger after they were measured twice. These fish on the second measurement went up a metal conveyor in August in Florida and then threw a vat of water. The FWC expert at trial (prosecution's expert) agreed fish shrink. As for the crew. The greenhorn who testified was held under a metal shed for 3 1/2 hours by 3 NOAA officers and 3 FWC officers and was told. We know these are not the same fish and if the captain did not do it and the first mate did not do it they you did it and someone is going to jail. One of his statements even starts out "I don't want to go to jail". He was scared to death. This was the first time he had ever been on a commercial boat. No fish were disposed off. There is a lot more that will come out later. But these clarification s may help understand the facts.

    1. Thank you for your thoughts Sandy. I relied on court transcripts, amicus curiae briefs filed on behalf of Mr. Yates, SCOTUS filings and other related legal documents to put the piece together. I ignored the popular press pieces that abound due to their inconsistencies. I certainly have empathy for the plight your family has suffered, and I'm even more chagrined by the three year delay by the prosecutors in pursuing the case. As I have mentioned several times, the facts about the case, rightly or wrongly, really no longer have any bearing. How the Federal Prosecutors applied the law, (In my personal opinion it was a gross abuse of power and a thwarting of legislative intent) is what will appear before the court. I think the fact that the Supreme took this case speaks to their concern over this level of abuse, or at least I'm hopeful they will overturn the conviction. I think the large number of briefs filed with court indicates you have many friends on your side. Tnx Bill

    2. Dear Sandy and John,
      At least a few of us here in San Francisco are rooting for you! Here's hoping that you get a SCOTUS *smackdown* of the preposterous abuse you have suffered at the hands of the Justice Department.

  5. Well here is a question for you. While NOAA was getting a grand jury indictment against my husband for document shredding the head NOAA LEO of all of the United States, Dale Jones was in front of Congress for shredding 80% of his files while the Inspector General of the United States was investigating his office from fishermen complaints. The Inspector General wrote three reports with regard to his reign.

    He was not charged with violation of Sarbanes-Oxley. He was not even fired. He still has his 6 figure salary and was just moved to a lateral position. And thank you for your response. This has been a long hard fight and we so appreciate all the help from everyone involved. Thanks again Sandy

  6. Google: dale jones noaa and document shredding. The reading is endless.

  7. I'm 50/50 on this.

    IF the Captain did order the fish thrown overboard and replaced, that is tampering with evidence. A fisherman files income taxes as a business - whether as a sole proprietorship or corporation. Sarbanes-Oxley does not discriminate with regards to the size of the business, and there are several clauses (including the anti-shredding clause) that are applicable to private businesses.

    The reason "fish" is not included in the specific list of items covered is because SOX was written as a forward-thinking, non-exclusionary act. In other words, when new tangible items that do not exist today come into existence, and these are destroyed, the writer's of the SOX act don't want officer's of companies to claim that this particular item was not specifically mentioned in the act. For example, say e-mail did not exist when SOX was created. 10 years later it does, and a company deletes all of their fraudulent e-mails. Should the SOX act have to be updated every time a new form of tangible item is invented? No. So.. they just said "tangible object" - and a fish is included in this.

    Now, let's look at some other stuff. It was stated that 1700lbs of fish were on board. 72 were considered undersized. Red Grouper generally run from 5lbs to 15lbs, so let's say the average size is 10lbs. That means that they had approximately 720lbs of undersized fish - or 42% of their fish were considered undersized. That's a pretty big percentage.

    And then the officer told them to hold onto the fish until they were inspected in port. Instead, the captain of the boat MAYBE orders the fish thrown overboard and new ones caught. Ms. Yates disputes this aspect of the court findings and investigation. However, she is also biased (understandably, as I would also be), so it's up to the court with regards to the "he said, she said" and evidence. One thing is for sure - the FWS officer should have seized the fish in question, but I'm GUESSING he had no method of transport. Perhaps following the boat in would have worked.. who knows.

    Why the government decided to prosecute this case three years after the event is an unknown. Perhaps there was an additional violation by Mr. Yates that triggered it. Perhaps a grand jury didn't get to the indictment for 3 years because of the massive caseloads they need to go through. Perhaps the prosectors had the same problem (prosecutors AND judges have ridiculous caseloads these days).

    BUT as to the question of whether Sarbanes-Oxley was validly used here.. I would have to say yes. The entity in question was a business. Tangible objects that could be used in prosecution were disposed of, so the captain was guilty of impeding or influencing a federal agency investigation. Of course, this centers on whether the evidence was actually disposed of.

    And with regards to the argument about NOAA shredding documents while under investigation yet getting away with it... shame on NOAA and the perpetrators should be prosecuted.. but as I tell my kids, "I don't care what your friends are allowed to do or not do. You still have to listen to me."

    1. Anon, thanks for the viewpoint, and I agree with a lot of your analysis, except for the application of Sarbox to the case. This is the real issue that will be argued. If you read the amici curiae briefs filed ( ) (they are the ones in green) you will find some complelling reasons why this was a poor and possibly unfortunante precedent setting choice.

      I would start with Michael Oxley's brief. He as a co-author of Sarbox argues vigorously that it was never the intention of congress or the bill's authors to ever contemplate that Sarbox would be used for anything other than records, data computer media at al related to a federal investigation of a corporation. This is part of the argument tendered to the court. Do you take words at their "natural meaning", the dictionary meaning if you will, or do you consider congress's actual intent when they wrote the legislation? In this case, does legislation regarding corporate records destruction now apply to anything at any time? There are currently many other existing laws regarding destruction of materials needed for Federal investigations. The primary difference is they don't in most cases apply a 20 year prison sentence.

      The Chamber of Commerce of the US, and the National Assoc of Manufacturers are concerned that applying Sarbox in lieu of other current Federal laws will lead to unintended circumstances with far reaching impact.

      " A commercial butcher, subject to FDA regulation, discovers that it has sold contaminated meat. Because meat may be a “tangible object” in the Eleventh Circuit’s view, the butcher cannot advise consumers to discard the product (i.e., destroy it), the company risks that consumers misunderstand the danger and possibly continue eating the contaminated meat."

      They cite numerous other examples showing the potential impact of utilizing Sarbox in this way.

      There are nine amici curiae briefs filed, a high number for a case that involves three fish and the two words "tangible object" They are an interesting read and offers insights on how our legal system works.

      The application of Sarbox to all federal investigations immediately applies a potential 20 years prison sentence if convicted, and provides unprecedented powers to a Federal Prosecutor. As to Federal prosecutors case loads. It seems a little odd that all of this time and money was spent on a case like this. Aren't there more important things things like prosecuting real bad guys they should be working on?

      I sort of have the feeling that using Sarbox in this way, at the time was maybe a form of intimidation given the plethora of other more conventional and commonly applied legal options available to them, and the lower courts and judges bought into it. It's not often a judge refuses them. Prosecutors never like to say they made an error, and now the Supremes are dealing with it.

      BTW the average 20"-23" red fish weighs between 4 to 8 or 9 lbs. Thanks for the comments


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