Monday, April 28, 2014

Life Surpasses Art: a Fish Tale

Just after I started this blog in March 2008, I put up my first joke post for April 1, entitled "An April 1st Classic." In it I reproduced the text of a famous fictional decision from Canada's Court of Criminal Appeals, known to every law student, which goes by the name of Regina v. Ojibway. The two law students who came up with it must have enjoyed themselves as they hypothesized this criminal prosecution against an unfortunate native American who had a particularly bad day:
Fred Ojibway, an Indian, was riding his pony through Queen's Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused's misfortune was further heightened by the circumstances of his pony breaking its right foreleg. In accord with the Indian custom, the accused then shot the pony to relieve it of its awkwardness. The accused was then charged with having breached the Small Birds Act, s.2 of which states:
2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.

The learned judge who "authored" the opinion went on to explain that since the Small Bird Act defined a small bird as "a two-legged animal covered with feathers", a lame horse covered by a down pillow met the definition of the act, because:
We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.
And since having two legs was a minimum standard, not a maximum, the horse qualified under the terms of the statute, and Fred Ojibway was guilty of killing a "small bird."

As I mentioned, generations of law students have since amused themselves with this example of overwrought "statutory interpretation": just what did the legislature actually have in mind when it passed this particular statute, with its particular terms? Words are easy to misread, and court decisions in real life are not immune from the same mistakes we all make in divining the intent behind them.

But now we have a real-life doozy -- an example of what I would call "deliberate statutory misinterpretation" by an overzealous prosecutor, court, and jury. Since it involves fish, it is even better. And now that the highest court in our land has agreed to review the case, it has captured a lot of peoples' attention.

Like Fred Ojibway, John L. Yates of Florida was just pursuing his living -- as a commercial fisherman  in the Gulf of Mexico -- when he ran afoul of the law. A marine official boarded his vessel for an inspection of its safety equipment just after Yates had made a catch of more than 3,000 red grouper. During his inspection, the official spotted several specimens that he believed were under the statutory minimum 20-inch size for commercial fishing. He spent the next four hours measuring every one of the fish in the catch, and came up with 72 that he deemed to be under the minimum size.

He ordered Yates to return to port for further inspection, and left the vessel. When Yates docked the next day, federal marine inspectors boarded and once again went through his entire catch to look for undersize specimens. This time, they came up with only 69, instead of 72. Yates was cited and fined for his violation of the fishing conservation rules.

That normally could be expected to be the end of it, right? Wrong -- three years later, a federal prosecutor in Florida charged Yates with violating section 1519 of the Sarbanes-Oxley Act, otherwise known (in the Senate) as the "Public Company Accounting Reform and Investor Protection Act." That section makes a criminal out of anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation.

The Feds were using a statute designed to punish the likes of the Enron officials who had shredded scads of documents to make it more difficult to charge them with financial wrongdoing, and hence dubbed the "anti-shredding" statute, to go after a commercial fishermen who, they charged, had dumped three small illegally caught grouper back into the Gulf before docking at port!

They could do this, they argued to the judge, because the fish were "tangible objects" within the meaning of the statute, and by allegedly throwing them back into the ocean, Yates had "destroyed" them. Never mind the possibility that the first inspector had miscounted the ones that were actually undersize; that was out of the question. Yates had deliberately destroyed evidence.

Although expressing doubt ("it might be a stretch to say throwing away a fish is a falsification of a record"), the trial judge let the case go to the jury, which apparently had no trouble reading the words of the statute to cover living fish that were (allegedly) thrown back into the ocean. (I am still having trouble with the fact that the likelihood of a miscount -- why would Yates get rid of just three of the 72 fish he was initially charged with having caught? -- ought to have reduced the circumstantial evidence of Yates's complicity to proof by less than a reasonable doubt. But this is how life surpasses art.)

The jury convicted Yates, the judge sentenced him to 30 days in prison, but the prosecutorial farce  was still not over. There followed three years of supervised release, collection of his DNA, financial restrictions, travel restrictions and even more petty humiliations. Yates's appeal to the 11th Circuit was in vain; they affirmed the prosecutor's and jury's reading of the statute.

Yates filed a petition for certiorari in forma pauperis (i.e., without having to pay the usual fees, due to his penury), which was prepared by the public defender's office. And today -- lo and behold! -- the Supreme Court granted it.

In previous decisions, the Court has held that criminal statutes have to be specific enough to give the public "advance notice" of the conduct which is deemed unlawful. Yates argues that no one catching fish for a living could ever have expected to be charged under the Sarbanes-Oxley anti-shredding provision, and apparently the Court wants to take a closer look at his case.

Says one report of the matter (in Forbes):
The case has some similarities to Bond vs. U.S., argued last November, which asks whether a jilted wife can be prosecuted for violating the terms of an international chemical-weapons treaty by sprinkling poison on the mailbox of her husband’s mistress. The essential question in that case is whether Congress exceeded its authority by extending acts of war into the civilian world, but the underlying issue is the same: Prosecutorial excess.
Indeed. When it comes to prosecutors, it seems that Fred Ojibway was not alone in falling victim to their unbounded zeal for the law.

[UPDATE 04/28/2014: The opinion from the Eleventh Circuit has been called to my attention as adding additional relevant facts, but I think it only confuses matters further still. According to the admission of one of Yates's crew, the 72 fish in question were set aside in separate boxes by the federal inspector, who ordered that they be kept separate for further verification at port. But after the inspector left, the crew member said that Yates directed the crew to toss the 72 fish overboard, and replace them in their boxes with other fish from the catch. Yet when the same inspector re-measured all the fish four days later after the vessel had returned to port, he found only 69 undersized fish, and none of the fish he measured as undersized in port appeared to be as short as he had measured them on board earlier.

So what really happened? Even after all 72 of the fish originally identified as undersized were returned to the Gulf, how did the inspector find 69 more among the catch that he had missed the first time? And if the 69 found in port were just those remaining of those that had first been set aside by the inspector while on board, then why would the crew have disposed of just the three shortest of them?

It all makes no sense, and it points up the ridiculousness of trying to regulate fishing catches by such a subjective parameter as "length." Apparently both sides had expert witnesses testify as to how the length of a grouper could vary depending on whether its mouth was open or closed, and its tail pinched together, at the time of measurement. Plus, the fish were kept on ice for the four days it took for the ship to reach port after the inspection, and apparently ice shrinks the size of the fish. Yet a man  is sentenced to thirty days in prison for the sake of half an inch or less of supposed length, determined in a highly arbitrary and unrepeatable manner.

It is evident that the Government went after Mr. Yates because of his deliberate flouting of the inspector's instructions, and that some zealous prosecutor dragged the anti-shredding law into the mix only after searching for three years to find a suitable statute making what Yates did a criminal offense. Yates paid his fine for the illegal catch, but that was not enough for the prosecutor, who wanted his pound of flesh. And the result is this ridiculous travesty, in which no one escapes looking utterly spiteful and foolish.]


  1. All of which causes me to agree with Shakespeare that "the Law is an idiot."

  2. I said Shakespeare said that "The Law is an idiot." Seems that Charles Dickens was the \culprit instead and the line was "The Law is an ass...a idiot!"

    I humbly beg your pardon for improper citation!

  3. I keep thinking I can't be shocked, because I've already heard the most ridiculous, then you post this !

    1. The time is during the white-winged dove season in northeastern Mexico, late Summer in 1978. We are returning across the border at the Reynosa - McAllen crossing of the Rio Grande. There is an horrific bridge tie-up and line crossing, causing long lines in Reynosa.
      One of us is ahead in a van with 9 men, and I in the rear with 10 men. We have 19 legal limits of white-winged dove under ice in the ice chests on top of the vans.
      The Reynosa traffic police, trying to speed up the movement of the lines, are directing this vehicle here and that vehicle there. In our case, van number one is here and van number two is there. We become separated by direction of legally established authority. We cross the bridge in separate lines (there are 8 lanes).
      Finally we come together under the roof that covers vehicular inspections. Van number one looks like it is prepared for junking, Seats have been pulled out, ice chests strewn from phooey-poo to breakfast. Shotguns are strewn as well, outside of their cases, and shell are being counting, for no known reason.
      As I stop, three agents from Federal Fish and Wildlife begin physically "helping" the hunters and your humble servant out of the van. They began tossing ice chests, bags of iced-down birds, shotguns and ammunition into a jumbled mess. They pulled out the seats and began checking underneath the van.
      Finally, they told us they were confiscating all the birds and ticketing the owner of the hunting organiser, a long-term operator with an impeccable record. The fine wound up being 500 dollars.
      The offense? One van had 9 limits and 10 hunters. The other van had 10 limits and 9 hunters. This is spite of the official advisory that stated, " no case shall the number of hunters and the number of limits fail to reconcile. You can enter with differential counts, but when all hunters are present at the inspection area, the number of limit bags must equivolate or be fewer than the number of hunters."
      That was one of my top five worst experiences with American federal officers.

  4. As Rumpole once said in heartfelt appeal to the jury, as he summed up his case at the Old Bailey, "Justice is not the same as law."

  5. I work for a corporation in environmental management - I have to deal with vast and conflicting state and federal regulations, forms, and reports. What I enjoy most, is when I interact with a government inspector that decides to reinterpret a defined meaning of something in order to increase the amount of fines and penalties. Two examples: 1) an upset condition requires an initial report within 24 hours of the incident, and a final report within 14 days. State inspectors decided to redefine 14 days as fourteen 24 hour periods starting from the time of the incident - so if the incident started at 2 AM, and if you filed your final report on day 14 at 8 AM, you were in violation - failure to submit the required report on time. 2) a hazardous waste inspection regulation says you record the name of the person conducting the inspection - but does not stipulate the form of the name. The inspector tried to issue me a violation saying that having first initial and last name was wrong, it had to be first name, middle initial, and last name. This person signs everything that way. I refused to accept the violation and eventually won, but only after spending $20K on lawyers. This inspector had been getting away with this for 2 years because companies thought they would accept the violation with no fine, and save on legal fees.