I ran across Justices take the measure of fish case:  In Plain English for SCOTUSblog by Amy Howe, posted on November 5. (I was looking for something to write about, and while you can expect some posts about getting your estate planning in order by 12/31, that would be a snoozer for post #251.) So what’s this fish case aka Grouper-Gate about?

John Yates, a commercial fisherman, got caught with 72 little red groupers, found among 3000 or so other fish. The fish were too small to be legal. (Yes, while there are people who argue that no person is an “illegal,” a caught fish most definitely can be.) Mr. Yates only had 69 little fish when he reached the dock, and one of his employees—probably soon to be a former employee—told officials the fish became meal for the living, as Mr. Yates told his people to get rid of the fish and replace them with other, slightly longer fish.

Three years later, and I’m really not making this up, Mr. Yates was charged with and convicted of violating 18 U.S.C. §§ 1519 and 2232(a). (Section 1519 was passed as part of Sarbanes-Oxley, the 2002 law which Congress passed in the aftermath of Enron, WorldCom, etc.) Mr. Yates received a 30-day jail sentence. The 11th Circuit upheld the conviction, and the opinion is here.

The appellate court opinion describes an evidentiary battle about how fish get measured—mouths open or closed—and other issues. Ms. Howe reports that, at oral argument before the Supreme Court, Mr. Yates’ attorney argued the non-applicability of the law to his conduct, while the justices were concerned about the penalties associated with the law, as applied, where at least one of the statutes was written to prevent the destruction of evidence by public companies and their professional advisors. From Ms. Howe’s report, it sounds like the justices don’t like seeing a federal case arising from fishing.

Now, the law about not catching small fish matters, for we have serious problems with overfishing. Also, we should not be happy with anyone who willfully destroys evidence to avoid the law, especially after being caught. That all said, when it’s over Grouper-Gate will involve 13 judges/justices, and nine attorneys’ names are mentioned in the appellate court opinion. How much money was spent on this matter, we can only imagine. I also wonder why Mr. Yates, who seemingly owns Miss Katie, the boat on which the crimes were committed, was represented by a public defender. (Only indigent defendants get a free defense.)

The 11th Circuit panel’s discussion shows pretty clearly that Mr. Yates broke the law. Unfortunately, by bringing such a case, and because it has ended up in the Supreme Court, it seems likely that we’ll end up with a decision/opinion that reflects poorly on Congress and the prosecutors who pursued the case. (The case brings to mind Bond v. United States, the case which involved the woman, charged with terrorism crimes when she tried to poison her best friend, who was also her husband’s lover. I wrote about the case back in early June, in Bond v. United States: One Crazy-Goofy Case.)

Congress cannot write laws with a full appreciation for how they will be applied in every instance. Attorneys are bright people, mostly, and many can be plenty creative. Sometimes—maybe even most of the time—those are good qualities. Unfortunately, not so much here, maybe. Stay tuned for the decision