The conviction of commercial fisherman John Yates for destroying evidence seemed to trouble Scalia and several of his colleagues Wednesday as they questioned why the government brought charges under a law meant to tackle corporate fraud in the wake of the Enron accounting scandal.
"What kind of a mad prosecutor would try to send this guy up for 20 years, or risk sending him up for 20 years?" Scalia asked during arguments in the case.
A jury agreed that Yates dumped the fish to impede an investigation into whether they were under the legal minimum catch size in the Gulf of Mexico, and Yates ended up serving 30 days in jail. But critics have derided the case as an example of government overreach.
The Obama administration says it was simply enforcing the plain language of a law that prohibits destruction of "any tangible object" during a federal investigation.
Justice Department attorney Roman Martinez said prosecutors actually recommended about two years in prison. He stressed that Yates had disobeyed officers, tried to cover up his scheme and enlisted other crewmembers to lie.
"You make him sound like a mob boss or something," Chief Justice John Roberts said as laughter erupted in the court.
The case started in 2007 when a Florida fish and wildlife officer inspected Yates' boat and discovered 72 grouper that appeared to be less than 20 inches long, the minimum length permitted by law. The officer ordered Yates to return to port so the fish could be seized. Yates later had the fish tossed overboard and tried to replace them with slightly larger fish.
Prosecutors charged Yates under the Sarbanes-Oxley Act of 2002, passed in response to the Enron accounting scandal when scores of documents were shredded to conceal wrongdoing. Part of the law prohibits knowingly altering or destroying "any record, document, or tangible object" with the intent to obstruct an investigation.
Roberts said the law gave the government "extraordinary leverage" to prosecute and get a guilty plea from anyone who throws fish off a boat. He suggested the case was similar to one decided earlier this year, in which the Supreme Court faulted the government for using an anti-terrorism law to prosecute a woman who spread deadly chemicals around the home of her husband's mistress.
Martinez said it would "a very strange thing if this court were to say that the obstruction of justice law is somehow applied differently when the offence is trivial."
Justice Stephen Breyer said the law might be "void for vagueness" if there isn't a clear way to limit its scope.
"If you can't draw a line, it seems to me that the risk of arbitrary and discriminatory enforcement is a real one," Breyer said.
Yates' lawyer, John Badalamenti, a federal public defender, argued that the phrase "tangible object" only means items used to preserve information, such as computers, servers or other storage devices.
Suppose the fisherman took a picture of the incriminating fish and then destroyed the picture, Justice Anthony Kennedy asked. Badalamenti conceded such photos would probably be covered under the law.
"It seems very odd that you can throw away the fish without violating the act, but you can't throw away the picture," Kennedy said.
Badalamenti also admitted that catch logs could also be covered by the law if they were destroyed. That prompted Justice Sonia Sotomayor to wonder if it's really "such a crazy outcome" to prosecute for destruction of the actual fish.
Justice Elena Kagan noted that "Congress gives very strict penalties to very minor things, but that's what it does."
Later, Kennedy joked: "Perhaps Congress should have called this the Sarbanes-Oxley-Grouper Act."
A decision is expected by next summer.
The case is Yates v. U.S., 13-7451.
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