"What kind of a mad prosecutor would try to send this guy up for 20 years?"

November 05, 2014 | By MARK MILLER

Earlier today, Pacific Legal Foundation noted that the Supreme Court was scheduled to hear arguments this morning in the case that has become known as “the fishy federal prosecution” of John Yates.  Having now had the opportunity to review the transcript of the OA, it is clear that the justices did not take this case just for the halibut, but rather with a specific porpoise in mind.

Several years ago, federal authorities in Florida trumped up a regulatory infraction into a white-collar criminal fish story.  The government decided that a law passed for Wall Street wrongdoers, the anti-shredding provision of the Sarbanes-Oxley Act, also had applicability on the high seas. The government charged Yates with violating that law by throwing three fish overboard so as to thwart a federal investigation— a crime that the feds thought worthy of twenty years in prison.  After the case was reeled in by the Supreme Court, PLF and many others asked the Court to vacate this commercial fisherman’s finding of gill-t.

It is always difficult to predict if the Court has accepted a position hook, line, and sinker merely based on the questioning at oral argument, but the justices certainly took the bait they were offered by the appellate specialists before them.

For his part, Chief Justices Roberts did not play koi when questioning the attorney representing the federal government. In response to the attorney casting Yates as a serious criminal, engaged in the cover-up of a crime, Roberts responded, “You make him sound like a mob boss,” according to the oral argument transcript. Likewise, Justice Alito told the government that the argument it was making was “pretty hard to swallow.

Justice Scalia also struggled with the argument presented by the federal government, giving rise to what Lyle Denniston of SCOTUSblog called the crescendo of the argument, when Scalia unspooled the line that gives this blog post its title: “What kind of a mad prosecutor would try to send this guy up for 20 years? 

Although the justices gave a hard time to the government, the OA transcript reflects that they also repeatedly challenged the attorney for Mr. Yates.  Anyone looking to trawl the transcript so as to predict how the Court will rule will most likely come out skunked.

PLF does not expect a ruling on this case anytime soon. Rather, the Court will most likely mullet over for at least a few weeks, if not months. But when the Court reaches its decision, perhaps John Yates will be able to say, “Call me Ishmael innocent” of the charge of violating the Sarbanes-Oxley Act.