High court lets fish captain off the hook

WASHINGTON -- The Supreme Court cut a Florida fisherman loose from the Justice Department's dragnet Wednesday, ruling that a law aimed at corporate chieftains who destroy evidence should not be used in a case of fish tossed overboard.

The 5-4 decision by Justice Ruth Bader Ginsburg concluded that the words "tangible object" in a law targeting document-shredding and white-collar crime were not meant to apply to 72 red grouper.

"In law as in life ... the same words sometimes mean different things in different contexts," Ginsburg said from the bench. "We concluded that a tangible object caught by (the law's) net is one used to record or preserve information, and does not include any and every object found on land or in the sea."

The court ruled that prosecutors failed to warn John Yates, 62, that his actions – tossing undersized grouper into the Gulf of Mexico and replacing them with the legal variety – could bring up to 20 years in prison under the somewhat ambiguous terms of a law passed in the wake of the Enron accounting fraud scandal.

The link between the law and Yates' six dozen red grouper were the words "tangible object" – a catch-all phrase in the statute that has allowed prosecutors to target crimes involving other types of destroyed evidence, from drugs and guns to dead bodies.The law was used to convict a man who helped the Boston Marathon bombers conceal a backpack containing fireworks and other evidence.

But fish, the justices ruled, don't fit into the same net. Ginsburg was joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito and Sonia Sotomayor.

"A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction," Ginsburg wrote. "But it would cut (the law) loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent."

In a separate concurring opinion, Alito noted that the law refers to "any record, document or tangible object." From that, he reasoned, "tangible object" refers to something similar to records and documents.

"A fish does not spring to mind. Nor does an antelope, a colonial farmhouse, a hydrofoil or an oil derrick," Alito wrote. "Who wouldn't raise an eyebrow if a neighbor, when asked to identify something similar to a 'record' or 'document,' said 'crocodile?'"

Nor do some of the verbs in the law -- "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in" -- lend themselves to Yates' prey, Alito reasoned. "How does one make a false entry in a fish?" he said.

Four justices dissented from the ruling, however, led by Justice Elena Kagan. She was joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

"A 'tangible object' is an object that's tangible," she wrote, going so far as to cite Dr. Seuss as proof. What's more, she said, "the court has never before suggested that all the verbs in a statute need to match up with all the nouns," likening that to an "odd game of Mad Libs."

"The plurality searches far and wide for anything – anything – to support its interpretation of (the law). But its fishing expedition comes up empty."

Kagan said Congress wrote the law broadly "to punish those who alter or destroy physical evidence — any physical evidence — with the intent of thwarting federal law enforcement."

"Giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy," Kagan wrote. "A person who hides a murder victim's body is no less culpable than one who burns the victim's diary."

She agreed, however, that the so-called Sarbanes-Oxley law, named after its authors, gives prosecutors and judges too much leverage and discretion. That, she said, represents "a deeper pathology in the federal criminal code," of overcriminalization and excessive punishment.

So perturbed were some high court justices about that trend during oral arguments in November that Chief Justice John Roberts interrupted an assistant solicitor general to remark, "You make him sound like a Mob boss or something."

The case was reminiscent of another in which the Justice Department prosecuted a jilted wife's clumsy effort at revenge by using an international chemical weapons treaty aimed at rogue governments. The court struck down that conviction, 9-0.

The cases raise questions about whether the thousands of criminal statutes on the books and the way they are used give the government an unfair advantage over defendants. "The absurdity of this factual scenario, unfortunately, is all too common in today's overcriminalized society," the National Association of Criminal Defense Lawyers said in its brief supporting Yates.

The new decision restricts the government's ability to use the law to go after all types of evidence destruction. In the future, presumably, only more serious crimes will be subject to the law.

For Yates, a resident of Cortez, Fla., the ruling ends an ordeal that began in 2007, when a state conservation officer with federal powers boarded the 47-foot Miss Katie and found 72 grouper that did not measure the required 20 inches. When he returned to shore, the undersized fish were gone, replaced by longer ones.

Yates was arrested three years later when armed officers appeared on his doorstep. He was convicted in 2011 and served 30 days in jail over the Christmas holidays, followed by three years of supervised release. Because of his rap sheet, opportunities to captain boats have dried up, and he is reduced to restoring antique furniture and dealing in scrap metal.