The Grievous Case of the Three Missing Grouper

You may have heard about this one.

On November 5, the U.S. Supreme Court will hear oral arguments in Yates v. United States, a case that may be a figurative poster child for overcriminalization in America.

The case involves the application of certain obstruction-of-justice statutes—one of which was enacted to respond to Enron-style corporate bad acts—to three missing fish.

Here’s what happened. The defendant was a commercial fisherman who was harvesting red grouper in the Gulf of Mexico. One day, his vessel, the Miss Katie, received a visit from a state fish-and-wildlife officer who was deputized to inspect fish for compliance with federal size limits. Federal law required that any harvested red grouper be at least 20 inches in length, and based on his measurements, the officer concluded that 72 grouper were undersized, so he issued the fisherman a citation. You see, it was not a crime to harvest undersized fish; it was a civil violation punishable by a fine or by suspension of one’s fishing license. The officer told the fisherman to leave the undersized grouper in crates until the Miss Katie returned to dock, where they would be seized and destroyed. A couple days later, however, the officer measured the grouper again and concluded that 69 of them were undersized. An investigation ensued, and the fisherman was eventually indicted for lying to federal agents, throwing undersized fish overboard to prevent their seizure, and obstructing a federal investigation. See 18 U.S.C. §§ 1001(a)(2), 2232(a), & 1519.

I’m sure there was no other solution than to charge the guy federally with multiple felonies.

The case is reminiscent of another one, Bond v. United States, that the Court decided just last term. There, federal prosecutors went gangbusters on a woman who acted out after finding out her best friend was pregnant by her husband. To exact revenge, the woman repeatedly applied chemical irritants to her former friend’s door knobs and mailboxes, but her actions resulted merely in a minor burn on the friend’s thumb, which the woman treated by rinsing with water. All sides agreed that the wife did not intend to kill the friend, only to afflict her with an uncomfortable skin rash. Even so, the government charged her with possessing and using a “chemical weapon” in violation of the Chemical Weapons Convention Implementation Act of 1998, a statute enacted pursuant to an arms-control treaty that was concerned with weapons of mass destruction. On appeal, the Supreme Court unanimously reversed her conviction, holding that it would violate constitutional principles of federalism to interpret the statute in a way that makes a federal case out of simple assaults. Or, to summarize the opinion: Give me a break.

Simple assault, there. Three missing grouper, here. Overcriminalization, everywhere.

The fisherman is being represented before the Supreme Court by the Federal Public Defender’s Office for the Middle District of Florida. For a short, animated video about the case, see here. For a news release about next week’s arguments, see here. And for a well-written amicus curiae brief in support of the fisherman, saunter over here.