Commercial fisherman’s conviction for disposing of his catch of undersized grouper upheld.

In U.S. v. Yates the defendant and his crew were on a commercial fishing trip into the Gulf of Mexico when he was stopped by a federally deputized Florida Fish and Wildlife officer on patrol for fishery violations and compliance. After boarding the defendant’s boat, he noticed red grouper that appeared to be less than the 20-inch minimum size limit. He measured them with mouths closed and determined there were 72 grouper that clearly measured less than 20 inches. He separated the undersized one into crates, issued a citation, and instructed the defendant not to disturb the crates. He told him that the National Marine Fisheries Service would seize them upon the vessel’s return to port. Instead of following the instructions, the captain had his crew throw the undersized fish overboard and replaced them with other larger grouper. When the vessel returned to port in Florida and the officer measured the fish, he suspected they were not the same fish he previously measured. The switch was discovered after a crewmember was interviewed. The captain was charged and convicted of knowingly disposing of undersized fish in order to prevent the government from taking custody and control in violation of 18 U.S.C. §2232(a), and was convicted of destroying 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.

Insufficient evidence argument rejected.

The defendant argued on appeal there was insufficient evidence that the fish thrown overboard were undersized because the officer failed to measure the grouper with mouths open and instead measured them with mouths closed. He argued there is speculation as to whether the fish would have been undersized if measured with mouths opened. The court rejected this argument finding that there was conflicting testimony as to whether this would have made any difference, and the jury was free to weigh and decide the issue. Furthermore, the defendant’s directing the crew to throw fish overboard together with his admission that he had at least a few undersized fish on his boat when the officer first measured them, was evidence he believed the fish were undersized.

Fish are tangible objects
The defendant argued that the term “tangible object” as used in 18 U.S.C. §1519 only apple to records, documents or items related to record keeping and does not apply to fish. The court decided that the statutory construction of the term would be given its plain meaning and concluded that tangible objects includes fish.

Exclusion of expert on measuring fish was not prejudicial
Finally, the defendant argued that he was prejudiced by the trial court’s ruling disallowing the defendant from calling an expert in his case-in-chief to testify that grouper measure three to four millimeters longer with mouth open versus when mouth closed. The defense failed to give notice to the government pursuant to Rule 16(b)(1)(C) that it intended to call this expert witness and the trial court’s sanction was not allowing the witness to testify. The court of appeals declined to determine if the district court exercise of its discretion was proper because the defendant failed to show any prejudice by the preclusion of this testimony.