Today at SCOTUS – [Insert Bad Fish Pun Here]

by: Peter J. Gallagher (@pjsgallagher) 

 In an interesting case this morning at the US Supreme Court, the Justices will be asked to determine whether a fish is a “tangible object.” No. Really. That is the issue in Yates v. United States.

The Sarbanes-Oxley Act, which was passed in the wake of the Enron scandal, makes it a crime to “destroy, mutilate, conceal, or cover up any record, document, or tangible object” with the intent to obstruct a federal investigation. It is unlikely that Congress had fish in mind when it passed the Act, but this is nonetheless the federal law that was used to convict John Yates — captain of the Miss Katie, a commercial fishing boat out of Cortex, Florida — for throwing 72 red grouper that were allegedly below the legal limit back into the ocean.  


In August 2007, a state conservation officer boarded the Miss Katie for an inspection. He found the red grouper, determined that they were smaller than the legal limit (20 inches), and then put 72 of them into a wooden crate and ordered Yates and his crew to leave them there and turn them over to federal agents when they got back to port. After the conservation officer left, Yates ordered his crew to throw the 72 red grouper overboard and replace them with ones that met the state minimum. When the Miss Katie returned to port, Yates told the federal agent that the red grouper in the crate were the same ones segregated by the conservation officer. The federal agent called the conservation officer to come measure the fish and he determined that they were not the same ones. A member of Yates’ crew later told investigators that Yates ordered him to throw the original, undersized grouper overboard.

Yates was convicted of disposing of undersized fish to prevent federal agencies from enforcing the law and destroying undersized fish to influence a federal investigation.  He was sentenced to 30 days in jail and served that sentence. However, after serving his time, his appeal continued to work its way through the appellate process. The Eleventh Circuit upheld his conviction. It rejected Yates’ argument that the “tangible object” provision in Sarbanes-Oxley was really an “anti-shredding” provision and therefore did not apply to things like red grouper. Instead, the Eleventh Circuit held that the ordinary, natural meaning of “tangible object” was broad enough to include fish. The US Supreme Court will now review this decision.

There are no amici supporting the government’s position in this case. On the other hand, Yates has garnered support from, among others, former Congressman Michael G. Oxley (of Sarbanes-Oxley fame). In an amicus brief, Congressman Oxley argued that the Eleventh Circuit’s interpretation of the “tangible object” provision was too broad and threatened to undermine the purpose of the Act. Specifically, he echoed Yates’ argument that the provision was an “anti-shredding” measure that focused on “records,” not things as far flung as red grouper.

It will be interesting to see how the case is decided, and even more interesting to see how many fish or fishing puns are used during oral argument and in the press coverage of the case.

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