Justices consider the case of the missing grouper Perhaps the hardest part of the Supreme Court's examination of a Florida fisherman who was prosecuted under the Sarbanes-Oxley Act for ditching undersized grouper was avoiding puns. The justices almost made it. But the second-hardest part of Wednesday's hour-long oral argument was deciding what to do with a federal statute that makes literal sense but which a majority of the court seemed to think lacked common sense. Several justices seemed outraged that federal prosecutors had used a part of the Sarbanes-Oxley law - passed in the aftermath of the Enron scandal in part to forbid the destruction of evidence - to go after commercial fisherman John L. Yates. Yates in 2007 threw back some red grouper he had been ordered to preserve as evidence in an effort to avoid civil penalties for harvesting undersized fish. "You make him sound like a mob boss or something," Chief Justice John G. Roberts Jr. told the lawyer representing the federal government, assistant solicitor general Roman Martinez. Justice Samuel A. Alito Jr., a former U.S. attorney known for his sympathy for prosecutors, sounded as if he could not be counted on for this one. "You are really asking the court to swallow something that is pretty hard to swallow," he said. Do you deny that this statute, as you read it, is capable of being applied to really trivial matters and yet each of those would carry a potential penalty of 20 years? Justice Antonin Scalia went further, wondering "what kind of a mad prosecutor" would use the law. He was so put out, he seemed to forget his vow of judicial restraint. When told the Justice Department's policy was to prosecute under the statute with the toughest penalties, Scalia said that would force him to "be very careful about how severe I make statutes." He paused and walked it back a bit: "Or how much coverage I give to severe statutes." The facts of Yates's prosecution have been championed by those who warn of the "overcriminalization" of American life. He was a commercial captain operating out of Cortez, Fla., in 2007 when a Florida fish and wildlife officer boarded his boat, the Miss Katie, in federal waters. Officer John Jones suspected some of the 3,000 fish in Yates's catch were smaller than the 20-inch minimum required at the time for red grouper. Jones found 72 that he said were too small, issued Yates a citation and told him to set the fish aside as evidence when he returned to port. But four days later, there were only 69 fish in the crate and Jones suspected that he was looking at different fish. A crew member later testified that some of the fish were thrown overboard and replaced with fish closer to the required size. A jury convicted Yates of destroying evidence, and the U.S. Court of Appeals for the 11th Circuit upheld the conviction. Yates served 30 days in jail, although Sarbanes-Oxley carries a maximum of 20 years. At issue is part of the law that prohibits destruction of "any document, record or tangible object" meant to impede a federal investigation. The lower courts agreed with the government that the fish were tangible objects. Yates's lawyer, Tampa assistant federal defender John L. Badalamenti, said the law was intended to cover only physical objects that relate to records and documents. But several justices pointed out the law was not worded that way. And under their probing, Badalamenti was forced to acknowledge that limiting the interpretation to documents and records could lead to unlikely line-drawing. Roberts and Justice Ruth Bader Ginsburg wondered if that would mean that destroying a letter from a murder victim would fall under the prohibition, but not getting rid of the murder weapon. Badalamenti answered questions from Justice Anthony M. Kennedy that led him to concede that the law would cover the destruction of a photo of the undersized fish. "It seems very odd that you can throw away the fish without violating the act, but you can't throw away the picture," said Kennedy. (He was the justice who later couldn't quite resist: he wondered whether Congress should have called it the "Sarbanes-Oxley-Grouper Act." Justice Elena Kagan said if the statute is clear, it is not up to the court to second-guess the penalties. "Congress gives very strict penalties to lots of minor things, but that's, you know, that's what it does," she said. Martinez said that as a practical matter, prosecutors for years had wanted a tough and clear statute prohibiting the destruction of evidence when it was meant to impede an investigation, and that Congress wanted it to "unambiguously" encompass "all types of physical evidence." He told the justices they should recognize that the grouper were objects. "If you stop someone on the street and ask them, "Is a fish a tangible object," the answer almost certainly would be yes," Martinez said. Roberts responded: "Well, what if you stopped them on the street and said, "Is a fish record, document or tangible object?"" Scalia took that one: "I don't think you would get a polite answer to either of those questions." As was the occasion 12 other times, according to the court's official transcript of the argument, the response to that was the notation " (laughter)." The case is Yates v. U.S.