Government error in fishing data row puts justices in a bind

WASHINGTON (CN) — The Supreme Court struggled on Tuesday to untangle a solution for the government’s error in charging an Alabama software engineer for crimes in Florida. 

“It’s a little bit like that platypus, this mixed-up animal, isn’t it,” Justice Sonia Sotomayor said of the court’s case law governing venue. 

The government's opponent in the proceedings is Timothy Smith, a fisherman and software engineer who developed a tool for accessing data owned by StrikeLines pertaining to artificial fishing reefs in the Gulf of Mexico. Pensacola, Florida-based StrikeLines locates these reefs using sonar equipment, data that comes from publicly available resources, and then sells reef locations to commercial and recreational fishermen.

Because man-made reefs are expensive to build and considered highly valuable, however, reef locations are generally not widely shared to keep reefs private and prevent overfishing. StrikeLines purports to sells each location to only one customer, but Smith posted StrikeLines’ data online for all to see. Smith refused to remove these posts, and StrikeLines contacted law enforcement. 

In the Northern District of Florida, the home of the StrikeLines computer servers that Smith accessed, a federal grand jury subsequently indicted Smith for intentionally accessing a protected computer without authorization. He was also charged with stealing trade secrets and online extortion of a local company. Smith meanwhile accessed StrikeLines’ data from his home in Mobile, Alabama, and moved to dismiss the charges for improper venue. A jury rejected the maneuver, convicting him on the trade secrets and extortion charges and sentencing him to 18 months in prison. 

Then in a partial reversal last year, the 11th Circuit found that bringing the case in Florida was improper. The appeals court tossed out Smith's conviction for theft of trade secrets but did not acquit Smith or dismiss the case with prejudice. Smith then turned to the Supreme Court to decide the proper remedy for the government’s failure to provide a proper venue. 

Sotomayor compared the government’s argument to getting “another chance at an apple it already took a bite at.” Chief Justice John Roberts worried that the internet age would result in the government continually bringing charges in different districts when their case failed in another. 

“Many cases, take internet crimes and things like that, there must be dozens of places where the government could charge,” Roberts said. “Why don’t they just start with one and go through and wear down the defendant?” 

The majority of the justices tried to find a solution for the government’s error in history. 

“Do you have any decision from the founding era that actually precluded retrial based on a prior verdict of improper venue,” Justice Samuel Alito asked Smith’s attorney. 

The government claims the solution for its error should be reversal and dismissal. Sopan Joshi, assistant to the solicitor general at the Justice Department, said Smith already received both but isn’t satisfied. 

“The remedy for a defendant convicted in a wrong venue is, one, reversal of his conviction; two, dismissal of the count in the indictment,” Joshi said. “Petitioner got both of those remedies here. His contention here is that the Constitution requires an additional third remedy, which is immunity from prosecution.” 

Addressing some of the justices’ claims that the government would be able to continually bring charges in different districts without acquittal, Joshi said this just wouldn’t make sense from the government’s perspective. 

“This is not an argument that says, you know, trust us,” Joshi said. “This is more an argument about trust human nature. Prosecutors like convictions, and they don’t like reversals of convictions. It wouldn’t really make sense for a prosecutor to deliberately try a defendant in the wrong venue knowing that there’s a risk the jury might acquit.” 

Smith says the remedy for the government’s error should be acquittal, and he was critical of the government's opposition to that remedy. 

“Put another way, the government’s position is that when a jury does its job correctly and acquits, a defendant may not be prosecuted, but, when the jury fails to correctly discharge its duty, the government gets a do-over,” said Samir Ibrahim Deger-Sen, an attorney with Latham & Watkins representing Smith. 

Follow @KelseyReichmann

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