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The Courts Idle

Undersized Grouper Case Lands In Supreme Court 251

An anonymous reader writes The Supremes have decided to hear a case regarding whether groupers are 'tangible articles' under the Sarbanes-Oxley law. The issue is that the crew of the Miss Katie was caught with undersized fish. A marine fisheries officer wrote them a ticket and put the fish in a box that the captain was ordered to turn in when he got ashore. Rather than do this, they threw out the undersized fish and replaced them with bigger ones. Prosecutors, rather than charging them with offenses of catching undersized fish (which would have resulted in a fine and a small jail sentence), went after them under the Sarbanes-Oxley law which forbids the destruction of "any record, document, or tangible object" and which could result in a 20 year prison sentence, though the prosecutor only asked for two years on this one. Lawyers are arguing over whether "tangible object" here is something that could contain records, or whether it's any object whatsoever that might be evidence. So far in comments, many of the conservative justices, including Roberts, Alito and Scalia, have expressed skepticism as to whether this would lead to overcriminalization for petty crimes and would give prosecutors undue leverage given all the things Sarbanes-Oxley can apply to. They also question whether this was intended in the law, given that "tangible object" was listed in a context including documents and records and appears to have been only contemplated in terms of servers, DVDs, or other tangible objects that might contain documents or records. Meanwhile, Kagan and Kennedy appear amenable to a more literal reading of the statute, given that groupers are in fact touchable and that makes them "tangible objects" under the ordinary meaning of those words.
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Undersized Grouper Case Lands In Supreme Court

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  • by LordLucless ( 582312 ) on Thursday November 06, 2014 @01:37AM (#48323321)

    If they're going literal, then the groupers weren't destroyed. They were just placed in an indeterminate location. Hell, take it up a notch, and rely on the second law of thermodynamics.

    Stupidly vague laws resulting in legislative over-reach is one of many reasons the law is an ass.

    • by __aaltlg1547 ( 2541114 ) on Thursday November 06, 2014 @01:42AM (#48323331)

      It's not vague, it's inclusive. They meant to criminalize the destruction of evidence in federal criminal investigations and that's what they did. Had they meant something different, they'd have chosen different words. The "strict constructionists" on the court are favoring the idea that the law doesn't mean exactly what it says, but some they're-going-to-define-it-for-us subset of what it says? This makes sense to you?

      Nevermind the consequences if they limit the meaning -- it will be legal to destroy most kinds of evidence in a criminal investigation. It's all A-OK if it didn't contain financial records right? Right?

      • by phantomfive ( 622387 ) on Thursday November 06, 2014 @01:52AM (#48323353) Journal

        Had they meant something different, they'd have chosen different words.

        I understand that ideal, but still does it seem there could be any possibility that the intelligent, polite, honest, upstanding lawmakers who sit in congress might have misunderstood the law they voted on? It is true that only the best and brightest make it to congress, but sometimes it's hard to think through all the implications of what they have (or have not, as the case may be) written?

        • >It is true that only the best and brightest make it to congress

          How did you manage to type that with a straight face ?
          Or were you being sarcastic ?

          #confused.

          • by phantomfive ( 622387 ) on Thursday November 06, 2014 @02:13AM (#48323397) Journal

            It is true that only the best and brightest make it to congress

            How did you manage to type that with a straight face ? Or were you being sarcastic ?

            Sarcastic? Me?? Never!!! Congress of course is populated with geniuses, you can tell because of how well they explain complex topics like physics and how to transport things over the internet through tubes.

            • by silentcoder ( 1241496 ) on Thursday November 06, 2014 @03:01AM (#48323509)

              Honestly - I can still partially forgive those, it's specialized technical knowledge. In theory those who would regulate something should damn well get educated about it first, but people outside those fields usually won't have a complete understanding of them.

              I get more upset by the ones who want to regulate things like sex and female reproductive issues while having absolutely no idea what they are talking about. Todd Aiken who seems to think that falopian tubes can tell whether a woman consented or not, or the congresswoman who thought a rape-kit is something that emergency rooms use to undo the act of rape !
              Apparently she has never read a news story, or watched a crime show.

              Not knowing specialized technical information is forgivable (at least - if your NOT actively regulating it) but not knowing basic general knowledge about something you hold that much opinion about - that's unforgiveable, especially in those who have the power to propose their opinions as laws.

              • Re: (Score:2, Insightful)

                by Anonymous Coward

                "Honestly - I can still partially forgive those, it's specialized technical knowledge."

                Yeah, who wouldn't think internet runs in tubes. I mean, it's very special knowledge. A bit like cheese is made of milk and milk comes from cows is special agricultural knowledge.

                I could forget them not knowing how electricity works, how data transfer using electricity works, or what is done to the milk after it's out of the cow (heck, I don't know this exactly), but confusing tubes and internet is like claiming agricultu

                • How about "chickens must be milked 2 times a day to ensure their well being".

                  I thought that was dubious too until I saw this [twitter.com] on The Tonight Show

        • by Dahamma ( 304068 ) on Thursday November 06, 2014 @03:32AM (#48323577)

          Seriously, though, it's not even a matter of Congress misunderstanding the law. It's a matter of the prosecutors (and even more scarily the courts) completely subverting the law through overly literal interpretation.

          Though what disturbs me the most about this is that it may be the first non-unanimous Supreme Court decision in my lifetime where I 100% agree with the "conservative judges."

          Seems like the prosecutors could have gone with a good old "destruction of evidence" and not had to delve into Sarbanes-Oxley (which while having many good intentions is in so many ways a totally fucked up law that has made billions for a few financial and auditing consulting companies and cost tens of billions for the rest.)

          • "Overly literal"; Seriously, for a law? Laws are supposed to be taken literally.

            If congress hadn't intended this outcome (and I'm just assuming from the summary that this outcome is indeed a direct consequence of the law) then they should have passed a different law.

            • by sycodon ( 149926 ) on Thursday November 06, 2014 @11:47AM (#48325677)

              So then, to be in complete compliance with eSOX, the boats crews will need to have segregated duties. Owners aren't allowed on the boats. Captains can't fish and the the crews can't drive the boat. The guy who baits the hooks or deploys the nets isn't allowed to pull them in.

              After all, we need complete segregation of duties.

          • by Xest ( 935314 )

            "Seems like the prosecutors could have gone with a good old "destruction of evidence" and not had to delve into Sarbanes-Oxley (which while having many good intentions is in so many ways a totally fucked up law that has made billions for a few financial and auditing consulting companies and cost tens of billions for the rest.)"

            To be fair, whilst I'm not defending the way the law is written, let's not forget that the whole reason it was written- because without it a series of financial scandals meant it cost

            • To be fair, whilst I'm not defending the way the law is written, let's not forget that the whole reason it was written- because without it a series of financial scandals meant it cost tens of billion for the rest too.

              I haven't heard of any bankers or investment brokers being arrested and jailed with the law. None. Clearly, US law enforcement is much more concerned with jailing fishermen that worrying about Americans losing their homes and retirement savings. After all, plenty of that Wall Street money is landing right there in the lobbyist's offices in Washington, and fishermen seem to be inept and figuring out whose bread they need to butter in order to maintain their livelihood.

              • by amiga3D ( 567632 )

                Laws are meant for little people. Not big shots and billionaires.

              • by Xest ( 935314 )

                Agreed, it's actual application by authorities has been pathetic. There's somewhat of an irony I guess in the fact that numerous execs were jailed for financial scandals before the law existed (i.e. some Enron and Worldcom folks were jailed) but none after despite the law creating an ever more powerful tool to do exactly that.

                I'd suggest though that it's worth considering that the problem isn't the law per-se, but whoever is taking charge of enforcing it. It seems there were a lot of financial misconduct pr

          • It's a matter of the prosecutors (and even more scarily the courts) completely subverting the law through overly literal interpretation.

            Isn't that what we call "rule of law", as opposed to "rule of man"? Why do you find the rule of law scary?

            • by jedidiah ( 1196 )

              This is just another classic case of the law being used as worded rather than "intended". Much like computer code, the law allows for what is actually written down. Your code needs to equal your intent.

              This is why the pessimistic types need to be listened to when they tell you all of the bad ways in which your law can go wrong.

              The real problem here is that no politician has the guts to admit they screwed up and that the need to patch the bug.

              Although I have little sympathy for the boat crew as they crossed

      • by LordLucless ( 582312 ) on Thursday November 06, 2014 @01:54AM (#48323359)

        It's not vague, it's inclusive.

        Same thing. It's inclusive, by being vague.

        They meant to criminalize the destruction of evidence in federal criminal investigations and that's what they did.

        Yes, I'm sure that when they sat down to formulate legislative regulations on corporate finance records, they thoroughly intended that it be used for punishing fishermen who caught undersized fish.

        • Can a life-form be "evidence"? Can a Grouper be compelled to testify against itself? Where are we?
          • So throw the murder victim overboard and replace it with a mannequin. Of course life forms and ex life forms can be evidence.

        • "Yes, I'm sure that when they sat down to formulate legislative regulations on corporate finance records, they thoroughly intended that it be used for punishing fishermen who caught undersized fish."

          No - for catching undersized fish, the fishermen would have got away with a fine.
          But they were dumb / dishonest enough to tamper with evidence, which is another offense entirely.
          (Although asking for 2 years in jail seems excessive...)

      • by diamondmagic ( 877411 ) on Thursday November 06, 2014 @01:57AM (#48323365) Homepage

        A constitutionalist (you know, the supreme law of the land, the thing they all swore to uphold) would also notice that no part of the Constitution granted authority to do such a thing: An application of Sarbanes-Oxley needs to involve interstate commerce in some fashion.

        Fishing is distinctly intrastate commerce (if commerce at all!), and cannot be covered by federal law. Criminal law is supposed to be a state issue.

        The Eighth Amendment to the Constitution also requires "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." I doubt 20 years prison listed in the statute is ever warranted.

        • by Crashmarik ( 635988 ) on Thursday November 06, 2014 @02:06AM (#48323377)

          The interstate commerce clause is the most thoroughly raped portion of the constitutions imaginable

          If you are not familiar
          http://en.wikipedia.org/wiki/W... [wikipedia.org]

          A farmer is prosecuted for growing wheat on his farm for use on his farm, on the grounds he should be forced to sell or buy on the broader market.

          • A farmer is prosecuted for growing wheat on his farm for use on his farm, on the grounds he should be forced to sell or buy on the broader market.

            The logic went, a farmer is prosecuted for growing wheat on his farm for use on his farm, on the grounds that growing for personal use means he's not purchasing or selling wheat on the interstate markets.

          • That is the true evil of the decision. It BINDS us irrevocably together under the law. We are not individuals, but actors to the State.
        • by Strangely Familiar ( 1071648 ) on Thursday November 06, 2014 @02:26AM (#48323427) Homepage
          Dude. You have no idea. The Supreme Court has held that a grandmother named "Angel" growing pot in her basement for her own personal consumption for medical purposes falls under the interstate commerce clause because it "affects" interstate commerce, and therefore she can be prosecuted under the federal law banning the possession of marijuana. In the Supreme Courts view, if she didn't grow it herself, she would have to buy it on the open market. Therefore, growing it affects interstate commerce. https://en.wikipedia.org/wiki/... [wikipedia.org]

          It was not hard for the Supreme Court to decide this, since they had already decided that a farmer growing wheat on his own property for his own consumption could be regulated by the federal government under the interstate commerce clause. https://en.wikipedia.org/wiki/... [wikipedia.org]

          • by Strangely Familiar ( 1071648 ) on Thursday November 06, 2014 @02:50AM (#48323485) Homepage
            Sorry, I forgot to spell out the conclusion, for anyone wondering if this was off topic. Of course fishing falls under the interstate commerce clause, and the Supreme Court will have zero difficulty finding this to be so, because the fish can be sold on the interstate seafood market, just like wheat or pot. Even if the fisherman was eating the fish himself, the Supreme Court would not have trouble under it's own precedent finding federal jurisdiction over the matter. I personally don't think the Supreme Court is right about this, but there is little doubt that the Supreme Court will use these precedents to find that the Feds have jurisdiction over fishing.

            This kind of Federal overreach could be overturned by a Supreme Court decision, but that is unlikely. The only real hope is a constitutional amendment limiting the interstate commerce clause.

            • by bill_mcgonigle ( 4333 ) * on Thursday November 06, 2014 @06:06AM (#48323927) Homepage Journal

              The only real hope is a constitutional amendment limiting the interstate commerce clause.

              We're going on 80 years of oppression under /Wickard/ - it's not good strategy to hold out hope for something where you'd need to get a supermajority of Congress to vastly limit their own power and roll-back nearly a century of power and bureaucracy.

              Nay, the only thing (within the State mechanism assumption) that is having success in limiting Federal power is nullification through initiative measures [tenthamendmentcenter.com] and that's even only on one very narrow power. Everything else is going wildly in the other direction, over any long-enough timescale.

              It appears that the only real chance of sanity now lies outside the State mechanism - /Wickard/ may well have been the point of no return. Every system on earth ever run by power-lusty men has had a point of no return from which it's never recovered.

              Be careful of 'hope' - you can die waiting for it to show up.

              • Unfortunately, since the Commerce Clause is a part of the Constitution, the 10th Amendment doesn't apply since it is a delegated power. It is up to the Supreme Court to determine the boundaries of the power.

                10th Amendment:
                The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                An amendment to the Constitution would be the most effective way to limit the Commerce Clause, with Supreme Court decisions bein

        • by Anonymous Coward on Thursday November 06, 2014 @02:26AM (#48323429)

          Except, as the NPR article notes...

          Commercial fisherman John Yates and his crew were fishing for grouper in federal waters in

          Commercial fishing often results in the product being transported all over the country, and with the fishing being done over a variety of areas and jurisdictions - especially in border areas (no idea if that is the case here).

          20 years is definitely excessive for what they indicate would normally be the equivalent of a minor fine (like a speeding ticket). However, the article goes on to note that he was sentenced to 30 days. I'd still consider that to be excessive myself - but not outrageously so considering it was destruction of evidence, deliberate fraud for financial advantage, as well as likely refusing to comply with a relevant direct request from an appropriate deputized federal officer in the normal course of his duties.

          That said, continuing the bad analogies, if you're stopped for speeding, don't do burnouts and doughnuts in front of the police vehicle as you pull over - you're likely to find yourself in a lot more trouble than just the speeding ticket...

          • by Dahamma ( 304068 )

            20 years is definitely excessive for what they indicate would normally be the equivalent of a minor fine (like a speeding ticket). However, the article goes on to note that he was sentenced to 30 days. I'd still consider that to be excessive myself - but not outrageously so considering it was destruction of evidence, deliberate fraud for financial advantage, as well as likely refusing to comply with a relevant direct request from an appropriate deputized federal officer in the normal course of his duties.

            Actually, if 30 days was the sentence for knowingly destroying the evidence that would have otherwise resulted in a fine, I'd say it's in NO way excessive. Though I guess the problem with it is not the sentence (which seemed totally reasonable) but the statute that was used to convict, which could actually define the rules for all preservation of "evidence" under Sarbanes-Oxley rules...

            • Actually, if 30 days was the sentence for knowingly destroying the evidence that would have otherwise resulted in a fine, I'd say it's in NO way excessive. Though I guess the problem with it is not the sentence (which seemed totally reasonable) but the statute that was used to convict, which could actually define the rules for all preservation of "evidence" under Sarbanes-Oxley rules...

              A British minister of parliament (Chris Huhne) and his wife were each sentenced to eight months jail for perverting the course of justice, when they lied about who had driven a car that got a speeding ticket. Three points on the wrong license (she accepted the fine instead of her husband), eight months jail each.

          • Just because one thing you do is interstate, doesn't mean every part of your job is.

            What if the states did this? "Someone sold your product within state lines, and therefore we get to tax and regulate your product even though it was manufactured it in another country entirely. Pay up."

            • The states do what you describe all of the time for things like alcohol. Tequila, by name, comes from Mexico. Very regulated and taxed.

          • I'd still consider that to be excessive myself - but not outrageously so considering it was destruction of evidence, deliberate fraud for financial advantage, as well as likely refusing to comply with a relevant direct request from an appropriate deputized federal officer in the normal course of his duties.

            Then maybe the prosecutors should have thrown bunch of those charges at him instead. There are so many laws on the books for so many things that some people speculate that everyone commits three felonies a day. [amazon.com]

            The courts are apparently completely ignoring the purpose, and, indeed the name of the law itself. We typically call it Sarbanes-Oxley, but that's only because it's shorter than the real name of the act, which is the Public Company Accounting Reform and Investor Protection Act of 2002. The law was e

        • Fishing is distinctly intrastate commerce (if commerce at all!)

          They are talking about a commercial fishing operation, not two blokes in a tinny.

        • by amiga3D ( 567632 )

          I wonder if anyone has ever been jailed under this statute as intended. This is the kind of unconstitutional crap they pass to use as leverage to get people to accept a plea bargain when they really aren't guilty of much of anything.

      • There is only one question the court will actually ask: "Is the fishermen incorporated".
        If they are - the conservative judges will find in their favor, if they aren't they won't.

      • Sound logic ++ The observation the "strict constructionists" made it worth reading. The law should be interpreted literally. Additionally, the prosecutors didn't ask for 20 years --- just one year.
      • by dbc ( 135354 )

        Well, I'm kind of with you that this is evidence tampering. But why throw SarBox at them? Why push for two years in prison? This is abuse of prosecutorial discretion. Armed robbery gets lighter sentences -- here we have a case of a fisherman keeping an undersize fish. If somebody gets 3 months of probation for armed robbery, I have a hard time seeing how you can ask for two years for trying to pull a fast switcheroo with a fish. Prosecutors in this country have come unhinged -- they don't prosecute re

        • Re: (Score:3, Insightful)

          by ttucker ( 2884057 )

          here we have a case of a fisherman keeping an undersize fish.

          More accurately, here we have a case of a fisherman being accused of keeping undersized fish. The officer who accused him of doing so left the only evidence whatsoever of the crime with the accused. Upon discovering that the evidence indicated no crime had occurred, he made the outlandish claim that the evidence had been tampered with, having no evidence besides his testimony given as support.

          • by Solandri ( 704621 ) on Thursday November 06, 2014 @06:36AM (#48323979)
            Yeah. Screwup by the fisheries officer. If he had secured the box with some sort of official "evidence" tape to make it tamperproof, this never would have gotten to this point. Seal the box, get the signature of the accused testifying that they have the sealed box, and it's ok to leave it in their possession until they get to shore. (Most of these fisheries enforcement officers work in small/medium high-speed power boats, so it would be impractical for them to take aboard all the illegal fish they find for safekeeping as evidence.)

            However, in this case they have the testimony of the crew that the captain ordered them to throw out the (purportedly) undersized fish. So I think the Feds are still going to win based on that. It's not solely the officer's word that a crime was committed.
          • by NicBenjamin ( 2124018 ) on Thursday November 06, 2014 @06:44AM (#48323999)

            An "outlandish claim" that was proven, beyond a reasonable doubt, in a fair trial. Mostly because the guy who actually threw the fish out of the boat testified that he was ordered to do so by the captain.

            Nobody with a brain in their heads is claiming this guy did not deserve to get in trouble for what he did. They're claiming that the government charged him under the wrong statute.

            • Nobody with a brain in their heads is claiming this guy did not deserve to get in trouble for what he did.

              Let's not overstate the case here: it is possible that somebody could reject the idea that any government has authority over the ocean where the grouper was caught, and argue that therefore no legitimate law was broken. Such a person would be wrong for failing to acknowledge the utility of preventing grouper from being overfished to extinction, but not necessarily brainless.

              • How about people that thing that the law is wrong because limiting caught fish to being above a certain size leads to smaller, more slowly developing fish populations; in effect doing the exact opposite of what the intended purpose of the law is. Ah, but of course, laws aren't thrown out merely for being ineffective.

          • More accurately, here we have a case of a fisherman being accused of keeping undersized fish.

            No, that's LESS accurately, because that's not what happened. A crew member testified to the fact that that captain had him chuck the evidence of their illegal fishing. The "outlandish" claim here is yours. Why lie about it? What's your point?

        • Well, I'm kind of with you that this is evidence tampering.

          Are we certain that what was described in TFS actually happened? Are we all certain that the fishermen actually tampered with evidence? Has that been determined to be fact in a court of law?

          Could this be a case of low-level government agent acting with incompetence or personal malice, and unwittingly starting a cascade of CYA up the chain resulting in this case? Seems to be a lot of that going around in government circles these days, so it's not an unreasonable question

          I mean, did some Fish & Game (or w

          • That might be a motive for throwing SARBOX at a fisherman like using a nuke to get rid of cockroaches.

            Bad analogy: unlike a nuke, SARBOX has a chance of succeeding.

      • by Tom ( 822 )

        This makes sense to you?

        Yes. Lawmakers are humans and if I had a dollar for every badly written law...

      • Nevermind the consequences if they limit the meaning -- it will be legal to destroy most kinds of evidence in a criminal investigation. It's all A-OK if it didn't contain financial records right? Right?

        The argument is whether select sentences from the, "Public Company Accounting Reform and Investor Protection Act", should be allowed to be used to prosecute someone for a crime unrelated in any way to accounting reform, or investor protection.

        The federal government, however, argues that the law was clearly written and intended to be a broad anti-obstruction-of-justice law that would fill gaps in the criminal code that had long existed.

        A strong argument could be made that not simply confessing, when someone was very obviously guilty, would be obstructing to justice.

        • Of course you can't be compelled to testify against yourself (Fifth Amendment), therefore anything you say (including your choice of plea) can't be used to lock you up.

      • I am a bit concerned about why the prosecution decided that Sarbanes-Oxley was the best tool for the job (both because it's a comparatively recent one, which raises the possibility that destruction of evidence was either unhindered or toothlessly enforced; and because little good ever comes of creative application of laws designed for one job to other areas); but the idea that a box of undersized fish, specifically assembled as part of an enforcement action by a marine fisheries officer, would not be a 'tan
      • It's not vague, it's inclusive. They meant to criminalize the destruction of evidence in federal criminal investigations and that's what they did. Had they meant something different, they'd have chosen different words. The "strict constructionists" on the court are favoring the idea that the law doesn't mean exactly what it says, but some they're-going-to-define-it-for-us subset of what it says? This makes sense to you?

        Nevermind the consequences if they limit the meaning -- it will be legal to destroy most kinds of evidence in a criminal investigation. It's all A-OK if it didn't contain financial records right? Right?

        And then the cops walk up to you while you're in the park smoking a joint, declare destruction of federal evidence and you get 20yrs. And no, I'm not kidding, that really will happen if this gets upheld.

      • The "strict constructionists" on the court are favoring the idea that the law doesn't mean exactly what it says, but some they're-going-to-define-it-for-us subset of what it says?

        Isn't that more like judicial activism, the polar opposite of strict constructionism?

      • We already have evidence-tampering laws. Sarbanes-Oxley makes evidence tampering a larger crime in certain contexts; but the Prosecutor is trying to interpret it in all contexts. It also makes evidence tampering a crime before charging, which is arguably a violation of the Fifth Amendment: it requires you to maintain evidence of your crimes in case you're arrested, so that you may surrender them to trial and prove yourself guilty.

        It's amusing that catching an undersized fish puts you in possession of

      • by pla ( 258480 ) on Thursday November 06, 2014 @10:36AM (#48325125) Journal
        Nevermind the consequences if they limit the meaning -- it will be legal to destroy most kinds of evidence in a criminal investigation. It's all A-OK if it didn't contain financial records right?

        This story seems to mix up the traditional concept of destruction-of-evidence with a very specific subset of that crime applicable under SOX.

        The prosecutors simply went too far in pushing for that specific crime, and therein lies the abuse - No different than how they try to make every case of plain ol' traditional fraud into a federal "wire fraud" offense when it involves the use of a computer (ie, basically all of it in the modern world), or how any crime involving more than a single person qualifies under RICO, or to pick a golden oldie, nailing Al Capone for tax fraud. Might what the crew did technically count under SOX? Maybe, maybe not - But SOX doesn't exist to serve as a bigger stick in all situations; it exists specifically to prosecute otherwise difficult to prove "white collar" crimes where most non-accountants can't even comprehend who did what to whom.

        Prosecutors need to stick with the crime that actually happened here, punish the crew appropriately, and lose the "get creative with charges and see what sticks" bullshit that has become far, far too common in today's legal system. When the law becomes nothing more than a set of technicalities to use to punish dissidence as their whim, do we really wonder why no one actually respects the law anymore?
    • by Strangely Familiar ( 1071648 ) on Thursday November 06, 2014 @02:11AM (#48323391) Homepage
      It's not that simple. The /. "article" doesn't exactly provide a comprehensive restatement of the law. Here you go:

      Sec. 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

      ``Whoever 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, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

      Notice that the law includes not only destruction, but concealing or covering up. So, the trial court didn't have the easy resolution you suggest, nor can the Supreme Court easily dismiss it on the basis that it isn't "destruction".

      • by skine ( 1524819 )

        It seems to me that the fish is not the tangible object, but instead the replacement fish would be a false entry into the tangible object (the box).

        I don't really see how this isn't just an open and shut case (obviously IANAL). While I think the sentence is inapt, that doesn't change whether I agree with the law or whether they're guilty of violating it.

        • His actual sentence was 30 days, followed by three years supervised release.

          Depending on the severity of the fine he was dodging, that could either be a lot or a little. This is a commercial fishing boat, and it was a Federal fine, so it probably wasn't a $20 slap on the wrist.

    • by 93 Escort Wagon ( 326346 ) on Thursday November 06, 2014 @02:55AM (#48323493)

      If they're going literal, then the groupers weren't destroyed. They were just placed in an indeterminate location.

      On the plus side, the fishermen got an extremely precise reading on the groupers' momentum.

    • If they're going literal, then the groupers weren't destroyed. They were just placed in an indeterminate location. Hell, take it up a notch, and rely on the second law of thermodynamics.

      Stupidly vague laws resulting in legislative over-reach is one of many reasons the law is an ass.

      The law isn't vague. It merely tried to be idiot-proof.

      And naturally, we built a better idiot.

    • Sec. 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
      ``Whoever 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, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation o

    • Oh, come on. Following your logic, criminals could just toss evidence of any sort into the sea with impunity.

      "Sorry your honour, I did not destroy those financial records. I tossed them into the sea, and they're probably still there."

    • If they're going for not being fucking stupid, they would try applying jurisprudence correctly.

      And Justice Anthony Kennedy said he was troubled that a narrow reading of the statute might prove problematic.

      The Supreme Court is charged with interpreting the spirit of the law. It is, therefor, a matter of jurisprudence that they assess this law's intent, that being to prevent Enron-style fraud and tampering, and recognize that its broad application is ridiculous and essentially extends evidence tampering so far as to eliminate the Fifth Amendment protections. Even short of that, the extension of evidence tampering

    • I was totally thinking these guys were guilty. Until I read your post.

      If I were the judge, I would agree that - assuming the fish was still alive - they did not 'destroy' it when they released it back into the wild.

      But if the fish was dead when they released it, then releasing it counts as destruction, as it was intentionally exposing a consumable item to the many creatures that eat dead fish in the sea.

  • by penguinoid ( 724646 ) on Thursday November 06, 2014 @01:48AM (#48323343) Homepage Journal

    There was a bug with the fish, so they had to be refreshed. They were of the wrong scale. You can check the logs, those are in the forest. Yes, that sounds fishy but that's to be expected given the circumstances.

    Eh, about as credible as "my harddrive crashed and all backups are for mysterious reasons unavailable". I have no sympathy for those who destroy evidence because they think it will be better for them at the trial.

    • Isn't this what the Republicans are screaming about with the missing IRS emails? Missing fish in a coverup smells awfully similar to me.

      Now if we could just find those records that would show if former President G. W. Bush was really AWOL from TANG (Texas Air National Guard) or how the so called "intelligence" about mobile bio-weapons and hidden nuclear facilities in Iran came about.

      All coverups are illegal, but some are more illegal then others. Unless your last name is Bush, in which case the cover up

  • Whoever wrote this article is just trawling.
  • Overreach... (Score:5, Interesting)

    by David_Hart ( 1184661 ) on Thursday November 06, 2014 @02:32AM (#48323437)

    Everyone knows this is an overreach by the prosecutor and an abuse of the very intent of the law. All the Judges need to do is read up on the history of what lead to it's creation to understand that it was developed purely as a way to ensure that publicly traded corporations weren't reporting fictional financial statements. There is no way that this should have EVER reached the Supreme court, let alone this fisherman being convicted under this law. But, of course, we now have a legal system that prizes conviction over justice.

    I also love the argument for why this conviction should be upheld. "The government replies that the "records only" argument would make it a crime for a murderer to destroy his victim's diary, but not the murder weapon." Um... The destruction of evidence to cover up a crime is already against the law (Tampering, Obstruction, etc.). Saying that the Sarbanes-Oxley law is needed for this is just plain silly..... I guess it's a good thing that I am not a Supreme court justice. If I were I would have laughed my head off at the pure stupidity...

    FYI: I am not a lawyer, nor do I play one on TV... The above are my personal opinions...

    • by Tom ( 822 )

      it was developed purely as a way to ensure that publicly traded corporations weren't reporting fictional financial statements

      Frankly speaking, I always thought SOX was developed as a way to ensure IT consulting companies had a continuous source of income.

      The whole thing is basically one big "please interpret me however you see fit" paper, so I'm a little but not very surprised to see it applied to fish.

    • Re:Overreach... (Score:4, Insightful)

      by Dahamma ( 304068 ) on Thursday November 06, 2014 @03:45AM (#48323623)

      Total overreach, and I don't understand why they couldn't have gone with some simpler "destruction of evidence" charge (which I'm sure is still fairly serious and would turn a fine into a prison sentence).

      Though if you read TFA he was sentenced to 30 days under a statute that could have given 20 years. The fact is he was ordered to preserve and turn over the evidence of his minor violation and he destroyed it, which was stupid and clearly worse than the original crime. The judge was actually pretty reasonable with the sentence, it was just the prosecutor who picked the wrong statue to prosecute...

    • The thing you have to keep in mind is that the Courts try to act more like a computer then a programmer. They look at the law as code they are honor-bound to execute. If the actual programmers (mostly Congress, bu in practical terms the President has a lot of influence on the precise wording that makes it into the law) fuck up and apply their financial services fraud statute to some idiot fisherman who was asked to preserve 72 fish and only showed up at dock with 69, then that's their fault. The Court's rol

  • Meanwhile, Kagan and Kennedy appear amenable to a more literal reading of the statute, given that groupers are in fact touchable and that makes them "tangible objects" under the ordinary meaning of those words.

    Did they also appear to have their fucking derp faces on while doing this? SCOTUS is supposed to be the court of common sense, where nothing else matters except what makes sense in the light of the US Constitution and being a reasonable human being. What kinds of goddamn idiots are these we've allowed to sit on this court?

    Thank goodness this fisherman didn't also throw his old Beatles albums overboard with the fish, since those are "records" under the ordinary meaning of the word. Maybe in all these confirm

    • by Dahamma ( 304068 )

      I can't stand Alito, Scalia, Thomas, or the other ultra conservative judges who generally do this exact ridiculously literal interpretation on almost every case. Which is why it's so mind boggling that Kagan and Kennedy would pull that same idiotic overly literal reading (and in this case worse). Hard to say anything other than WTF. The Supreme Court may be as broken as Congress..

  • by Crashmarik ( 635988 ) on Thursday November 06, 2014 @03:32AM (#48323573)

    of his fish.

    Next week: 7 supreme court justices die of laughter when presented with the case.

  • by sociocapitalist ( 2471722 ) on Thursday November 06, 2014 @05:41AM (#48323865)

    tangible
    tan(d)b()l/
    adjective
    adjective: tangible

            1.
            perceptible by touch.

    object
    noun
    noun: object; plural noun: objects
    bdkt,-dkt/

            1.
            a material thing that can be seen and touched.

    A fish is a material thing that can be seen and touched.

    Voila, decision rendered.

    Fucking American legal bullshit idiot judges wasting time on this when they should be listening to more important cases.

    • yes, but the conservatives are opposed to the actual reading of the law. Apparently, they believe that they have the right to allow evidence to be destroyed.
  • by smooth wombat ( 796938 ) on Thursday November 06, 2014 @08:10AM (#48324255) Journal

    When it was found the captain attempted to destroy the evidence, as evidenced by the crew member(s) testifying, the captain should have been shot.

    His catching, and keeping, of undersized fish was deliberate as was the destruction of the evidence. He knew what he was doing in both cases.

    It's people like him who are destroying what little is left of the fisheries (along with fishermen from various Asian countries). Size restrictions and fishing limits are in place for a reason. People who deliberately go out of their way to subvert them don't deserve to kept around.

  • The Myth of the Rule of Law [msb.edu]

    "The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. Like it or not, we are faced with only two choices. We can continue the ideolog

  • Obviously this law is poorly written. So the question becomes whether the government is required to apply the law the way they think it should be seen or the way it is actually written. This becomes critical in the instance of the congress approving Supreme Court judges. The law says that congress should advise and consent the president as to the wisdom of accepting the applicant. Nowhere does the law suggest that congress has ever had the power to reject the applicant but it has always been tak
  • This is like charging hookers with tax evasion for not filing. If prosecutors can't come up with a real charge then they need to be asking for a change in the law instead of this kind of bullshit.

  • "tangible goods" may be necessarily broad to limit actual criminals' ability to do an end-run around whatever limits S-O sets. Likewise for RICO, PATRIOT Act, etc. The problem isn't in how you use them to *catch* criminals, the problem is how you can destroy someone's life for committing a petty crime, or worse, punish an innocent because the law is so powerful that the accused can't properly mount a defense or cops a plea to avoid even larger sentence.

    Should the captain and/or crew go to jail? Probably; d
  • This video explains why we *should* catch small fish

    https://www.youtube.com/watch?v=u9YOVuEQugE [youtube.com]

Philosophy: A route of many roads leading from nowhere to nothing. -- Ambrose Bierce

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