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Justices think use of anti-corporate fraud law sounds ‘fishy’

Assistant Federal Defender John L. Badalamenti outside the Supreme Court building on Wednesday following oral arguments.
Assistant Federal Defender John L. Badalamenti outside the Supreme Court building on Wednesday following oral arguments. McClatchy

Supreme Court justices trolled for answers Wednesday as they skeptically considered the case of a Florida fisherman jailed for destruction of evidence because he ordered his crew to toss undersized fish overboard.

In a case with more implications than it appears, some conservative justices clearly couldn’t fathom why federal prosecutors charged John L. Yates with violating a law, for which he could have received 20 years in prison. The law was included in a larger crackdown on financial crimes.

“You are really asking the court to swallow something that is pretty hard to swallow,” Justice Samuel Alito told the Obama administration’s lawyer.

Chief Justice John Roberts Jr. added sardonically that the administration was describing the 62-year-old Yates, who now runs an antique furniture business on Florida’s Anna Maria Island, as “some kind of mob boss.” Yates served 30 days in jail.

“He could have gotten 20 years,” declared Justice Antonin Scalia. “What kind of sensible prosecution is that?”

But while the potentially harsh penalty incited judicial alarm in a way that might help Yates’ cause, the underlying case poses even more complicated questions for the justices trying to figure out the reach of a federal statute.

Yates was convicted and sentenced to jail and three years of supervised release following an August 2007 investigation into his fishing activities in the Gulf of Mexico. A Florida Fish and Wildlife Conservation Commission officer had boarded Yates’ boat, the “Miss Katie,” and allegedly counted 72 red grouper less than 20 inches in length, the minimum size limit for red grouper.

The investigator issued Yates a citation and instructed him not to disturb the undersized fish. Instead, Yates allegedly instructed his crew to throw the undersized fish overboard and replace them with larger fish. A crew member testified against Yates, while Yates denied the charge.

After the boat returned to shore, inspectors came to conclude the fish left on board had been swapped.

The subsequent four-day trial in 2011 became entangled in various technical questions – including whether fish shrink when placed on ice and the difference between measuring grouper with an open mouth vs. a closed mouth – that the Supreme Court did not touch Wednesday.

Instead, the key question involved the use of a federal law against Yates that prohibits the destruction of a “record, document or tangible object with the intent to impede, obstruct or influence” a government investigation.

That statute was written by Congress in 2002, with Wall Street and financial crooks in mind. Lawmakers, in the wake of investigations into Enron and other corporations, wrote what was widely seen as an anti-document shredding provision into the larger Sarbanes-Oxley financial overhaul bill.

The lawmakers did not define what they meant by “tangible object.”

“Tangible object doesn’t mean everything,” Yates’ attorney, Tampa-based Assistant Federal Defender John L. Badalamenti, told the court, adding that the law was “confined to records, documents and devices designed to preserve information, the very matters involved in the Enron debacle.”

Justices asked barbed questions of both Badalamenti and Assistant to the Solicitor General Roman Martinez, searching for the law’s potential limits through hypothetical examples. Justices asked whether a typewriter used to write an incriminating statement would be covered by the statute, or an iPhone, or a filing cabinet, or a photograph.

“This statute,” Justice Stephen Breyer said, “at first blush seems far broader than any witness-tampering statute, any obstruction of justice statute, any not-lying-to-an-FBI-agent statute that I’ve ever seen.”

Adding to the skepticism, powerful business interests, including the U.S. Chamber of Commerce, filed friend-of-the-court briefs on Yates’ behalf, as did the former Ohio congressman, Michael Oxley, who helped write the law in question.

“The argument that you make has considerable force about over-criminalizing,” Justice Anthony Kennedy told Badalamenti, while cautioning that there might be “more problems” with Badalamenti’s effort to limit the reach of the law.

Potentially foreshadowing a eventual decision in the Yates case, the court last June overturned the conviction of a Pennsylvania woman charged with violating the sweeping Chemical Weapons Convention Implementation Act for non-fatal use of chemicals in what amounted to a marital dispute.

Yates did not attend the argument, though his wife and daughter did.

Justice Clarence Thomas, as is his custom, was the only one of the nine justices not to speak or ask questions during the hour-long oral argument. A decision is expected by the end of June.

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