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Top U.S. court to hear white-collar case of fish thrown overboard

By Lawrence Hurley

WASHINGTON (Reuters) - A fisherman prosecuted under a white-collar crime law for disposing of fish while he was under investigation has persuaded the U.S. Supreme Court to hear his case.

The court said on Monday that it will hear arguments over a jury's 2011 conviction of Florida fisherman John Yates on two of three charges, including one under the "anti-shredding" provision of the 2002 Sarbanes-Oxley law.

The provision penalizes the destruction or concealment of "a tangible object with the intent to impede, obstruct or influence" a government investigation and was intended to prevent fraud of the sort committed by companies such as Enron Corp and WorldCom Inc.

Yates's lawyer John Badalamenti said Yates did not receive fair notice that his actions would be covered by the provision.

Prosecutors in Florida accused Yates of illegally destroying the evidence showing that he had harvested red grouper fish that were smaller than the minimum 20 inches in length required under federal regulations.

Yates, who lives in Holmes Beach, 32 miles south of Tampa, has not been able get work as a fisherman following his trial, Badalamenti said.

"He doesn't want this to happen to anyone else."

Asked if Yates, 62, would be courting media attention like Nevada rancher Cliven Bundy, who last week battled federal agents over the cost of grazing rights on public land, Badalamenti demurred.

"I don't think you are going to see him as a poster-child for any particular political persuasion," the lawyer said.

The National Association of Criminal Defense Lawyers said in a friend-of-the-court brief that the use of the Sarbanes-Oxley law in Yates's case was an example of an increasing "over-criminalization epidemic" in which federal prosecutions punish conduct that could be handled with civil penalties or under state law. The association's brief noted that Yates was not charged with any violation of fishing laws.

Yates has been backed also by Cause of Action, a conservative-leaning group critical of expansive criminal laws.

Even if Yates wins his case before the high court, his conviction for one count of preventing the government from taking custody of the fish will remain intact.

Oral arguments and a decision are expected in the court's next term, which begins in October and ends in June 2015.

Solicitor General Donald Verrilli, the government's lawyer before the Supreme Court, said in court papers that Yates was not disputing that he "directed the destruction or concealment of the fish" and that he had "obstructive intent." He wrote that a fish is a "tangible object" based on the "ordinary and natural meaning" of the phrase.

The case began in August 2007 when federal and state officials measured fish on Yates's boat that they suspected were undersized. At that time, 72 were found to be under 20 inches, with some as short as 18 to 19 inches. After the boat returned to port, agents re-measured the fish. Only 69 were undersized, and they were all closer to the 20-inch mark.

A crew member later testified at trial that Yates had told crew members to throw the undersized fish overboard and replace them with others. In August 2013, the 11th U.S. Circuit Court of Appeals upheld the conviction, finding in part that a fish fit within the definition of a "tangible object."

The U.S. House of Representatives Judiciary Committee has both Republican and Democratic members studying concerns about federal laws being applied too broadly. It has heard testimony about cases including the prosecution of Lawrence Lewis, a janitor at a Washington, D.C., retirement home who was convicted of violating the Clean Water Act following a sewage backup.

The case is United States v. Yates, U.S. Supreme Court, No. 13-7451.

(Reporting by Lawrence Hurley; Editing by Howard Goller and Grant McCool)

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