Tangibility of Fish Faces Supreme Court Review

     WASHINGTON (CN) - A Florida man persuaded the U.S. Supreme Court on Monday to review his convictions related to his harvesting of undersized red grouper in federal waters in the Gulf of Mexico.
     Federal jurors found John Yates guilty of knowingly disposing of undersized fish to prevent the government from taking lawful custody and control of them, in violation of 18 U.S.C. § 2232(a); and destroying or concealing a "tangible object with the intent to impede, obstruct, or influence" the government's investigation into harvesting undersized grouper, in violation of 18 U.S.C. § 1519.
     The court sentenced Yates to 30 days' imprisonment, followed by 36 months' supervised release.
     A three-judge panel with the 11th Circuit affirmed in August 2013, leading Yates to petition the Supreme Court for a writ of certiorari.
     The justices picked up the case Monday, following its custom of not issuing any comment on the case.
     Yates will proceed in forma pauperis. The court agreed to look only at one of two questions Yates had presented it.
     The question concerns Section 1519 of Title 18, which makes it a crime to alter a record or "'tangible object' with the intent to impede or obstruct an investigation."
     Yates asks whether he had been deprived of fair notice that destruction of fish would qualify as a "tangible object" under that law, claiming that the term tangible objects is ambiguous and undefined.
     On his way to trial, John Yates had contended that the federally deputized field officer who reviewed the fish he caught aboard the Miss Katie in 2007 had measured the fish with their mouths closed. Yates said that, mouths open, the fish met the size limit.
     He had an expert with the Gulf Fishermen's Association expert to discuss a grouper's measurement with an open mouth as opposed to a closed mouth and to discuss fish shrinkage when placed on ice.
     Daubert v. Merrell Dow Pharmaceuticals Inc. requires trial courts to perform a "gatekeeping" function to determine the admissibility of such testimony.
     For the Daubert hearing, the government proffered an expert with the Fish and Wildlife Research Institute who would testify that the average grouper measured 3 to 4 mm longer when its mouth was open versus when its mouth was closed.
     The government ultimately rested, however, without calling its expert as a witness in its case-in-chief.
     When the defense tried to call that government expert as its first witness, the trial court said this could not occur because Yates failed to properly notify the government of his intention to do so, as required by Federal Rule of Criminal Procedure 16.
     Yates then called his expert who testified that fish can shrink on ice and that grouper measure longer with their mouths open than with their mouths closed.
     This witness had state and federal fishing violations, however, which the government raised on cross-examination.