Something Fishy in Sarbox Land

Something Fishy in Sarbox Land

How many groupers does it take to expose federal overreach and a flawed law gone wrong again?

By Bill Shepherd in the Wall Street Journal

On Wednesday the U.S. Supreme Court is hearing argument in Yates v. United States. Since the case turns in part on the fate of missing fish, the court’s decision to take it up has been easily mocked in some quarters. But there’s nothing frivolous about this dispute. Fisherman John Yates, accused of hiding some of his catch from officials, has been charged with violating the Sarbanes-Oxley financial reform act and could have spent 20 years in prison. Yates presents the Supreme Court with the opportunity to slow down the overcriminalization of America.

The ordeal of Mr. Yates began in 2007 on his commercial fishing boat, the Miss Katie, in the Gulf of Mexico. During a routine stop at sea to measure the size of his catch of several thousand fish, fish-and-game officials counted 72 alleged undersized grouper. Three days later, a count by agents at the dock found only 69 grouper.

Mr. Yates was eventually charged under the anti-shredding statute of Sarbanes-Oxley. Specifically, the Justice Department claimed that Mr. Yates had knowingly “altered, destroyed, mutilated, concealed, covered up, falsified, or made a false entry in a record, document, or tangible object with the intent to impede or obstruct an investigation.”

When Mr. Yates was convicted at trial in 2011, a federal judge sentenced him to county jail time and three years probation. But the bigger issue of his felony conviction is one that impacts us all.

After his arrest, Mr. Yates could have been subjected to fines and a suspension of his fishing license for the undersized catch. Instead the Justice Department expanded a statute beyond its natural reading, charged him with a felony, and put him on trial facing a 20-year sentence. This expansion of laws beyond their intended goal is referred to as overcriminalization.

It is true that times change and that law enforcement needs new tools to keep track of criminals who seek to do us harm. As Florida’s former statewide prosecutor, I helped to craft new legislation to tackle changing threats posed by street gangs and narcotics traffickers. But creativity in law enforcement should be confined to new strategies for undercover operations, not new, tortured interpretations of laws on the books.

Discretion is at the crux of this case. Mr. Yates is a simple, hardworking man who could never have imagined that he would be prosecuted for violating a law written to target white-collar crime. Even an author of Sarbanes-Oxley, former Rep. Michael Oxley, has told the court that the “tangible objects” portion of the statue that bears his name was to target things used to store information “like hard drives and CD-ROMS. Not fish.”

Congress is often criticized for overregulating and overcriminalizing. But the Yates case is a dramatic example of executive branch overreaching.

Just because a prosecutor can file a charge doesn’t mean it is the right thing to do. Prosecutors everywhere struggle with the burden of teaching new prosecutors how to recognize the appropriate use of their authority. Professional groups like the American Bar Association Criminal Justice Section work to help foster that dialogue.

Success among colleagues in prosecutors’ offices is measured, as it should be, by the number of convictions and the length of sentences handed down. But the other part of success—more difficult to measure—is the courage to close unfounded investigations or dismiss cases because they are not supported by the evidence, or don’t match an American sense of justice. The ultimate measure of success is the ability to live, work and raise a family in a safe environment—secure in the knowledge that government will not abuse that power with which we entrust it. This must be our universal goal.

The Supreme Court can further that goal in Yates. It can stop the Justice Department from vastly expanding its reach beyond what Congress intended in the Sarbanes-Oxley law and provide guidance to the nation’s law-enforcement officials. We all want these officials to have the tools they need. But let’s make sure those tools are put to their intended use.

Mr. Shepherd, a partner in Holland & Knight LLP, is lead counsel for the National Association of Criminal Defense Lawyers, which filed an amicus brief in the Yates case.