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In covering prosecutorial misconduct, we’re most often highlighting the behavior of prosecutors at or leading up to trial, when rules about discovery and improper argument are in force. Harder, but no less important, is to get at the misuse of prosecutorial discretion, which comes into play long before the creation of any court record.

At oral arguments in United States v. Yates earlier this month, however, the Supreme Court managed to do just that.  In an example of how the breadth of Supreme Court oral arguments can, at times, see through the narrow issue presented to the underlying behavior that gave rise to a given case, the Justices sharply questioned the government on its decision to prosecute a Florida fisherman for disposing of three grouper fish in alleged violation of a federal statute barring the destruction of evidence in federal investigations.

Officially, what is at issue in Yates is whether fish qualify as “tangible objects” for the purposes of 18 U.S.C. § 1519.  The law, passed in the wake of Enron and described in the Congressional record as an “anti-shredding” measure, prescribes the destruction or falsification of “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”

Can this statute be stretched to encompass tossing three grouper fish over the side of a boat when the underlying act of catching the same fish isn’t even a criminal matter, but a civil infraction?  As a narrow caselaw matter, this is what Yates is about.  But as oral arguments in the case revealed, beneath that lies a much broader question about the use of prosecutorial discretion.

Making a Federal Case of It

In 2007, John Yates’ boat was stopped by federally deputized officials of the Florida Fish and Wildlife Conservation Commission.  According to local press reports, inspectors spent four hours looking over the approximately three thousand fish on board, and discovered what they claimed to be seventy-two grouper fish shorter than the legal length allowed for commercial fishing.  They instructed Yates to keep the fish for later measurement at the dock.  But when the boat returned to shore, officials counted only sixty-nine of the suspect bottom feeders, leaving us with the missing three now before the Justices.

Yates received a citation and thought that was the end of it.  Until, three years later, federal agents arrested him at his house for destroying evidence in a federal investigation, based on the testimony of one of the other men on the boat, who claimed Yates had instructed the crew (not very efficaciously, it would seem, based on the numbers) to dispose of the undersized fish.

If you’re a little taken aback at this use of federal resources, you are not alone.  So, it seems, were many members of the Supreme Court, according to Lyle Denniston’s highly engaging account of the oral argument over at SCOTUSblog.

“What kind of sensible prosecutor does that?” [Scalia asked] “Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.

Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.

Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”

In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.

It is worth noting that none of this questioning was, strictly speaking, on point.  Either fish qualify as “tangible objects” or they don’t.  The answer lies in legislative history and the Court’s interpretation of the statute.  It does not lie in an exploration of a particular prosecutor’s decision to pursue a case.

And yet what Scalia was getting at is that the narrowness of the legal issue obscures the indiscretion of this specific prosecution.  “What kind of mad prosecutor” would bring this case?

The Supreme Court can decide if one statute or another is unconstitutionally overbroad.  And there is certainly a good argument that this one is.  Indeed, over-criminalization, particularly at the federal level, is an enormous problem; it gives federal prosecutors so much ammunition in their various wars on crime that nearly all defendants are forced into plea bargains.

But ultimately, no string of court rulings can adequately stand in for the judgment of individual prosecutors as they decide, entirely out of public view, who to bring the weight of the federal government down upon, and whom to spare.

Searching for an Explanation

Why, then, we might ask, was Yates prosecuted in the first place?  We’ll never know for certain.  But a close reading of the local media reports offers a clue.  When federal officials showed up to examine the remaining sixty-nine fish on the dock in Cortez, Yates disagreed with the way they were conducting their measurements.

“The mouth of a grouper has an under-bite, and should be measured at full length, not by smashing the face against a board,” he told the Anna Maria Islander. “We challenged their methodology — how they measured the fish.”  This apparently didn’t sit well with the inspectors.  “Sandy Yates said she’s certain it was her husband’s questioning of the agents that led to the government’s charges.”

Last month we wrote about a case in Pennsylvania, where a man’s refusal to plea in a federal drug case apparently led to a prosecutor’s unconstitutional attack on his decision to remain silent.  Failing to go along with the program when the program is federal law enforcement can cost people in ways outside what the law itself dictates.  It can mean the difference between a fair trial and the violation of your rights.  Or for Yates and his family, the difference between paying a fine and getting on with life, and going to prison and losing your livelihood.

“We’ve had to forfeit hundreds of thousands of dollars in income for a minor infraction,” said Sandy Yates. “The government has taken our income, vacation and time with our grandkids…There should be a point where common sense takes over. We’re talking about three missing fish.”

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