- The Washington Times - Wednesday, November 5, 2014

The Supreme Court justices appeared deeply skeptical Wednesday of the notion that a fisherman in the Gulf of Mexico should face 20 years in jail for throwing his catch overboard, because of a law designed to fight white-collar fraud.

In 2002, following the Enron scandal where employees destroyed records of criminal activities, Congress passed legislation known as the Sarbanes-Oxley Act to make sure any future cover-ups and evidence-tampering met with harsh penalties.

Now the Supreme Court must decide whether that law includes fish.

“Perhaps Congress should have called this the Sarbanes-Oxley-Grouper Act,” Justice Anthony Kennedy said during oral arguments Wednesday.

The court case involved John Yates, a commercial fisherman in the Gulf of Mexico, who in 2007 caught 72 red grouper that were shorter than the legal minimum length. Florida Fish and Wildlife officers told him to take the fish to port, where his entire haul would be seized for further investigation.

Before reaching the dock, Mr. Yates instructed his crew to throw the fish overboard. He was charged with trying to obstruct an investigation and wound up serving a 30-day jail term.

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But Mr. Yates was also hit with charges under the Sarbanes-Oxley Act, which can impose up to a 20-year prison term for anyone who “knowingly alters, destroys, mutilates, conceals, covers up” records, documents and other objects with the “intent to impede, obstruct or influence” an investigation.

Critics see gross prosecutorial overreach, while the Obama administration contends it was just following the letter of the law as passed by Congress.

The federal government — along with lower courts — argued that the fish meet the law’s criteria for destruction of evidence. But Mr. Yates and his lawyers said they don’t believe Congress ever intended to include fish in a law meant to catch Wall Street crooks and Texas energy investors.

“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,” said lawyer John Badalamenti, arguing for Mr. Yates.

Should the law be applied to things like fish, then “it is basically the overreaching broad thing that Congress has never passed,” he said.

Much of the discussion focused on what qualified as a “tangible object,” the law’s phrase to denote things people could get in trouble for altering or discarding.

Mr. Badalamenti said Congress left the definition deliberately broad because lawmakers knew it would have to apply to new business technologies in the future, not because they wanted to include illegal grouper hauls.

“In 2002, an iPad, an iPhone and many other electronic devices that preserve information didn’t exist,” he said.

The justices appeared initially wary of trying to parse out exactly which objects could and could not be included in the law, but scoffed at the idea that Mr. Yates could have faced the 20-year prison term the law carries.

“What kind of a mad prosecutor would try setting him up for 20 years?” said Justice Antonin Scalia.

Justice Department attorney Roman Martinez said that the law is intentionally broad in order to encompass any and all objects that might become involved in an investigation.

“‘Any record, document, or tangible object,’ unambiguously encompasses all types of physical evidence,” he said. “Congress was intending to essentially figure out every way that someone might imagine tampering with or destroying or obstructing justice by getting rid of evidence.”

A number of groups — including the Heritage Foundation, American Conservative Union, and Texas Public Policy Foundation — argued that the administration’s interpretation represents government overreach, and could be interpreted to mean just about anything.

Congress has “a desire to federalize almost everything they shouldn’t be touching, and they have a desire to make almost everything a crime,” said Matt Schlapp, chairman of the American Conservative Union. “When you get caught up in that web, it destroys lives.”

The court’s decision is not expected until next year.

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