Romano: Prosecutors use Enron-inspired law to go after fisherman with undersized grouper

Published December 2 2014
Updated December 2 2014

We begin in the middle of nowhere. No crowds, no TV cameras, no reason whatsoever to be paying attention. Just a handful of people on a fishing boat in the Gulf of Mexico.

It's a summer day in 2007, and John Yates figures he has 3,000 pounds of grouper cooling on ice. Unfortunately, an officer with the Florida Fish and Wildlife Conservation Commission figures about 72 of those fish are slightly undersized, and thus illegal.

Seven years later, this supposedly simple story is finally nearing its end.

All it lacks is a final chapter written by the U.S. Supreme Court.

• • •

By now you should know this is not just a story of a fisherman. It is not a story of disputed methods of measuring grouper, or the consequences of landing a 19-inch fish instead of a 20-incher.

Instead, this is a story about the fine line prosecutors walk between carrying out their duties and overstepping their boundaries.

At its core, this is a story about the true nature of justice.

Yates, who lives on Anna Maria Island in Manatee County, has already served 30 days in jail and is completing three years of probation. Unable to find work as a boat captain during this time, he instead opened a small furniture store in Cortez.

Yet Yates, 62, has refused to give up this fight.

"He's been clear about this from Day One," said his attorney, John Badalamenti, a federal public defender in Tampa. "He does not want this to ever happen to another American."

The issue is what happened after the Florida fish and wildlife official boarded Yates' boat and cited him for catching undersized grouper. The official placed all the fish in one box, and told Yates to turn them in when he returned to shore.

Officials would later accuse Yates of throwing some of the undersized fish overboard and replacing them with larger fish.

Instead of getting his wrist slapped for illegally keeping some grouper, Yates was charged with destroying evidence under the Sarbanes-Oxley Act, the law passed in response to the Enron scandal, when documents were shredded to conceal wrongdoing.

Under Sarbanes-Oxley, Yates was facing 20 years in prison.

Prosecutors told the Supreme Court last month that they were seeking only a two-year sentence, but Chief Justice John Roberts suggested the law still gave them "extraordinary leverage'' when bringing charges.

Badalamenti's argument was that Sarbanes-Oxley was conceived for a much different purpose, and that prosecutors were overreaching in a relatively inconsequential matter.

The Yates case has drawn the attention of the National Association of Criminal Defense Lawyers, which sees it as a perfect example of an overcriminalization problem.

"Do we really need to take laws meant for one thing and change their meaning to go after someone else?" asked Palm Beach lawyer Bill Shepherd, who filed an amicus brief on Yates' behalf. "It's a constant struggle trying to teach young prosecutors the proper use of discretion."

The Supreme Court is expected to issue its decision sometime next summer and, based on the line of questioning by the justices last month, Yates has reason to be optimistic.

Seven years later, he might be the one that got away.

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