“How Destroying Fish Is Not Like Destroying Financial Records”

by Walter Olson on July 16, 2014

In the upcoming case of Yates v. United States, the Supreme Court will decide whether a fisherman can be prosecuted under Sarbanes-Oxley’s prohibition on destroying or concealing “any record, document, or tangible object” to impede an investigation. The records, documents, or tangible objects in question were undersized fish, which Mr. Yates threw overboard instead of bringing back to the dock as instructed by inspectors. Cato has filed an amicus brief urging the Court to rule that Mr. Yates was not adequately put on notice of the reach of “tangible object” to include not just business items such as hard drives, but small marine creatures, lest the law “potentially criminalize an unfathomable range of activities.” [Trevor Burrus, earlier]

{ 17 comments… read them below or add one }

1 Heresolong 07.16.14 at 9:22 am

So he didn’t actually destroy them anyway, he just “hid” them.

2 Ron Miller 07.16.14 at 2:35 pm

I think a reasonable person could assume “tangible object” includes fish.

More generally, isn’t this exactly the kind of evidence destruction we should be trying to stop? I don’t view this as overcriminalization. I just view it as destruction of evidence would should be a crime.

The defendant is the bad guy in the context of this story.

3 Boblipton 07.17.14 at 3:40 pm

I don’t think that’s the issue being contested here, Ron. By choosing a ridiculous legal theory — that these fish are somehow records of financial misfeasance or objects containing records of financial misfeasance, the prosecutors are simply being pricks. Surely there are other laws that could be applied to this destruction of evidence?

Bob

4 wfjag 07.17.14 at 8:03 pm

“Mr. Yates threw overboard instead of bringing back to the dock as instructed by inspectors. ”

Did any of them swim away? Or, is this an updated American version of Monty Python’s Dead Parrot skit? Instead of the Ministry of Funny Walks, Americans have the Department of Dead Fish and Federal Bureau of Tangible Objects.

5 DensityDuck 07.17.14 at 8:40 pm

I agree with Bob. The guy clearly was attempting to evade a fine, but the question is whether he should be guilty of a felony crime and face prison time as a result (which is what prosecuting him for “destroying tangible evidence” under Sarbanes-Oxley is claiming.)

Note that even Cato’s amicus actually allows that one could be so prosecuted–the brief claims that he was not “appropriately notified”, not that SarbOx is inapplicable to this sort of situation!

6 peter 07.19.14 at 9:10 am

So the inspectors did not seize the evidence or make suitable records at the time because………?

“here is your knife back mr mugger. we will be back for it tomorrow. You wont throw it away will you?”

7 gitarcarver 07.21.14 at 1:24 pm

While we all need to be schooled on whether fish should be considered “tangible evidence,” there is another part of this case that bothers me even more.

The prosecution of Yates under the Sarbanes-Oxley Act began three years after the incident.

That’s a long time for someone to be hooked on a charge like this – especially for a civil violation where the max penalty was not that great as compared to the government wanting to throw Yates into the legal briny deep for getting rid of three fish.

8 Ron Miller 07.21.14 at 2:49 pm

Schooled. Fish. I see what you did there.

Anyway, I don’t disagree that the appropriate punishment here might best be a guilty finding for the underlying offense. But obstruction of justice in some capacity is not a crazy charge in these situations.

Peter, what you are saying then in destruction of evidence should never be a crime when authorities are in a position to seize the evidence. That’s crazy as is the idea that the There should be some nod to the logistical difficulties they probably faced when stopping to get a count and measurement on the spot.

9 Ron Miller 07.21.14 at 2:50 pm

Hit send a little early. Sorry

That is crazy as is the idea that knife/mugger is a fair comparision.

10 gitarcarver 07.21.14 at 11:52 pm

Ron,

Just to be clear, I hate things like “obstruction of justice” because it has been my experience that the charges are leveled against the average citizen far more often then they are leveled against LEO’s who do similar acts.

My point on the length of time is that the guy was caught with the illegal fish, told to keep them in a fish box until he returned to port. Yates’ boat came back into port a week later and it was then the fish were noted as being missing.

The government knew there was something fishy going on with at least 3 fish missing. Why not make the charge then? Why wait 3 years to bring the charges?

There are a lot of people who are more informed on whether the fish are “tangible evidence” and 9 of them wear black robes and hand out feathers to lawyers. I won’t offer an opinion on that.

However, I am still stuck on the three year period between the incident and the charge and firmly believe that justice delayed (even for the people whom the government represents) is justice denied.

11 peter 07.22.14 at 3:55 am

“…destruction of evidence should never be a crime….” No what I was doing was pointing out the idiocy of the situation. Also there is a nod to the logistical difficulty, that is why the inspectors do not have to keep every fish to present as evidence at the trial.

‘fair comparison’. I course I don’t think it is a fair comparison. I was using it as a vehicle to point out the ridiculousness of the situation.

Wow. I really didn’t think I needed to point that out. I will try to explain in the future when I am using sarcasm, exaggeration or humour…just for Ron. (P.S. sarcasm) (P.P.S sarcasm).

12 Boblipton 07.22.14 at 6:23 am

Ron:

logistical difficulties? Three undersized fish? No one is carrying a cell phone to snap a picture?

Bob

13 Ron Miller 07.22.14 at 10:18 am

Did they know it was three at the time? Taking a picture would have been better evidence of the size? We can’t trust fisherman to act with some honor so the burden is on law enforcement? You guys seems to be clearly siding with the cheater over the people was entrust to stop the cheaters.

Peter, yes, you will need to do just that. It clearly appeared to me that you were analogizing the two. I figured it was a legitimate comparison because your post was so short I didn’t think you checked in just to make a joke that was not really funny. My bad.

Git, I can’t speak to the delay. I’m not a big fan of it and I don’t know why it would have gone down that way.

“I hate things like “obstruction of justice” because it has been my experience that the charges are leveled against the average citizen far more often then they are leveled against LEO’s who do similar acts. ”

I think you are free to hate that injustice while still supporting the idea of obstruction of justice. I mean, I hate police driving 85 miles an hour down the road for no reason other than they can. But I still support catching speeders who are going 75.

14 Boblipton 07.22.14 at 1:57 pm

Ron, I’ve never known a fisherman but he was a liar. Surely the cops should have realized that keeping the fish around would have meant that they would have been unable to exaggerate their size.

Nor have I been arguing that their attempting to eliminate the evidence is not worthy of punishment. I suggested some time ago — and you have steadfastly ignored my suggestion — that there might be another, more relevant federal law about destroying evidence rather than claiming that these fish somehow are financial records. If the idea is not to let the punishment fit the crime, then claim it was treason and violation of the Alien & Sedition Acts of 1798 and that they poisoned themselves while attempting to escape, the United States then being in a state of emergency and the courts not open on the high seas. Case closed.

On the other hand, if you think that three fish is a lot to get hot under the collar and that it’s a bit odd that the arresting officers didn’t think to snap a photo on their cel phones or something and that the punishment does not fit the crime… well, apparently you don’t. Remind me not to cross the street against the light while you’re around.

Bob

15 gitarcarver 07.23.14 at 12:52 am

Ron,

Bear with me here…..

Did they know it was three at the time?

I am not sure what you are asking. At the time stop, the Florida Fish and Wildlife guy told Yates to keep 72 undersized groupers in a separate fish box. When Yates and the fish arrived in port a week later, there were only 69.

Taking a picture would have been better evidence of the size?

In my opinion it would have been. You lay a 2 foot ruler next to the fish and take a picture of it. Not to be morbid, but don’t we do the same thing with wounds on the body of a dead person? We don’t drag the body into the courtroom. (At least I don’t think we do.) We take photographic evidence. I am not trying to be snide here, but do you think that at trial the Florida Department of Fish and Wildlife is going to bring dead fish into the courtroom?

We can’t trust fisherman to act with some honor so the burden is on law enforcement?

While I understand your point, I think the counterpoint might be “we can’t trust law enforcement to collect and maintain evidence without the assistance of the person they are looking to fine / suspend / put in jail?” Or even “we can’t count on the honor of all people to admit a crime when they are asked by a law enforcement officer?”

You guys seems to be clearly siding with the cheater over the people was entrust to stop the cheaters.

I don’t read anyone siding with the “cheater” on the infraction of catching undersized fish. I think where people are siding with the fisherman is the idea that the government went looking for a law that was not written to deal with fish and applied it to this guy.

I think you are free to hate that injustice while still supporting the idea of obstruction of justice.

Thanks. I think you may be missing my point. In this case, the “justice” to me would be obtained by convicting the guy on the charges of catching undersized fish. (A civil charge, in case you missed that.) So what “justice” is being obstructed if the guy was convicted on the undersized fish charge? How much more “justice” does the government want? In this case, they are looking at throwing this guy in jail for up to three years for a criminal infraction that could result in a max fine and suspension of his fishing license for 30 days. I don’t see that three year sentence in the slammer as enhancing justice or being just at all.

But my point is that too often it seems that “obstruction of justice” is a “throw away charge,” just like “resisting arrest” or “resisting arrest without violence.” Too often no one really believes the person was obstructing or resisting, but it gives prosecutors another chip to throw into the pot when negotiating a plea deal.

(And as for speeding, sorry, I believe in the same rule of law for all. If it is okay for the cops to speed without cause, then it must be okay for me to speed. To paraphrase something I read earlier, “we can’t trust law enforcement to act with honor and stay within the law?”)

16 GRSA 07.23.14 at 9:09 am

Were any investors hurt by this action?
Is Mr. Yates’s boat a publicly traded entity?
If so, then so be it.

17 Ron Miller 07.23.14 at 10:13 am

You make some decent points. Factually, I’m not sure we have enough information. If there is a trial. I would like to see all of the evidence. I can’t see a 72 to 69 small fish being the issue. But the logistical question is whether they could get the evidence on the spot, presumably on a boat or something. I’m picturing a scenario but I have no idea if it turns out that way.

“And as for speeding, sorry, I believe in the same rule of law for all. If it is okay for the cops to speed without cause, then it must be okay for me to speed.”

I completely get off the bus here. Because police speed, and they probably make up .2% of the cars on the road, we should all be able to speed? To me, this is crazy.

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