Supreme Court to Review Fisherman's Dumping Conviction

Wednesday, 07 May 2014 01:00 PM

By Andrea Billups

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A Florida commercial fishing captain who was convicted of a felony and faced 20 years in prison for dumping three underweight fish will have his appeal heard by the U.S. Supreme Court.

The high court on April 28 granted a hearing on fisherman John Yates' appeal.

Yates, of Holmes Beach, Fl., was convicted of evidence tampering after officers from the National Marine Fisheries Service entered his vessel, the Miss Katie, counted 72 red grouper they said were underweight, and ordered him to hold the fish until he returned to port from the Gulf of Mexico.

The next day during the recount, the officers determined that three of his red grouper were missing, although Yates has said the officers originally measured his catch "improperly and erratically."

Yates was charged in 2007 and convicted in 2012, serving 30 days in jail in a case seen by some legal observers as a prime example of over-criminalization: making otherwise law-abiding citizens unwitting offenders over relatively minor infractions.

William Shepherd, a lawyer and former Florida statewide prosecutor who filed an amicus brief in the Yates case on behalf of the National Association of Criminal Defense Lawyers, told Newsmax that the Sarbanes-Oxley Act was improperly used by prosecutors against Yates.

The 2002 law was initially passed by Congress to protect investors against fraudulent corporate disclosures.

Under the text of the law, it is criminal "to destroy, mutilate, conceal, or cover up 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."

In its filing in response to Yates' appeal, the Justice Department sought to define the words "tangible" and "object" as they pertained to the fish.

Noted the solicitor general in the government's brief: "If relevant to a court proceeding, a fish would plainly be discoverable as a 'tangible object.'"

The solicitor general wrote: "Even if [Yates] is correct that Section 1519 [of Sarbanes-Oxley] was conceived principally in response to white-collar crime and document destruction, that would not confine its application to that one form of obstructive conduct to the exclusion of obstructive acts like (his)."

Shepherd calls this strategy a tortured reading of the statute.

"Our position is it's not what the statute says. Everything that is talked about in that part of the statute relates to items that are used to store information or data," Shepherd said.

"They are talking about spreadsheets. It is a way for Congress to leave a catch-all so that as technology changes and new ways are developed to store data, they don't have to come back and change the statute.

"The Justice Department said they have used it in other cases, and their example related to thumb drives and CDs, which I would say prove our point," Shepherd added. "I don't think Congress ever envisioned technology evolving to such a level that data could be stored on a fish."

Nonetheless, a jury convicted Yates, and he faced a maximum sentence of 20 years in federal prison. He lost his initial appeal in the 11th U.S. Circuit Court of Appeals, so his attorneys, including John L. Badalamenti, an assistant federal public defender based in Tampa, petitioned for the Supreme Court review.

As he waits for the high court's ruling, Yates remains on probation for another two years, and has since had trouble finding work as the case remains on appeal, Shepherd said.

"He had been a commercial fisherman for his adult life," Shepherd said. "He's 61 years old now. He cannot get work in the career he's devoted his life to."

Yates' wife, Sandy, who runs an antique and gift store, said the prosecution has taken a toll on her family.

"We lost our time-share, our livelihood, our income, and our quality of life because of three fish," she told the Ana Maria Island, Fl., newspaper The Islander last month. "File this one under Ripley's 'Believe It or Not.'"

A victory from the Supreme Court, which is expected to take up the case in October or November, would serve to clear Yates' record, Shepherd said.

But the issue at hand is much larger than simply reversing the conviction of one fisherman, he added.

"I think that this case speaks well beyond the circumstances of Mr. Yates, and it talks about the risk that we all face when government agents extend beyond what Congress or the constitution intended."


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