evilweasel posted:

The defendant has always had the burden of not destroying evidence. He is not being accused of "failing to maintain" the evidence, he is being accused of deliberately destroying it. It's bullshit to suggest the problem is he wasn't taking the evidence to a mechanic or something.

Ron Jeremy posted:

But why was it in his possesion? If the state depends on the actual artifact to prove its case, the state should seize it and maintain it. If it were some other form of contraband you can be sure they would have. Hell look at asset forfeiture. They seize the poo poo out of that.

But here, they cite him and expect him to maintain the evidence? That's some bullshit right there.

esquilax posted:

Why is it pretty dumb? It's worded broadly enough that it may apply to fishery law, and the officers instructed Yates to keep the fish as a tangible record that the fish were undersized, and he clearly did so with the intent to obstruct justice. What's the major legal difference between destroying the fish and destroying, say, photographs of the fish next to a ruler or destroying a document listing the lengths of all the fish caught?

Patrick Leahy posted:

Section 802 creates two new felonies to clarify and close loopholes in the existing criminal laws relating to the destruction or fabrication of evidence and the preservation of financial and audit records. First, it creates a new general anti shredding provision, 18 U.S.C. Sec. 1519, with a 10-year maximum prison sentence. Currently, provisions governing the destruction or fabrication of evidence are a patchwork that have been interpreted, often very narrowly, by federal courts. For instance, certain current provisions make it a crime to persuade another person to destroy documents, but not a crime to actually destroy the same documents yourself. Other provisions, such as 18 U.S.C. Sec. 1503, have been narrowly interpreted by courts, including the Supreme Court in United States v. Aguillar, 115 S. Ct. 593 (1995), to apply only to situations where the obstruction of justice can be closely tied to a pending judicial proceeding. Still other statutes have been interpreted to draw distinctions between what type of government function is obstructed. Still other provisions, such as sections 152(8), 1517 and 1518 apply to obstruction in certain limited types of cases, such as bankruptcy fraud, examinations of financial institutions, and healthcare fraud. In short, the current laws regarding destruction of evidence are full of ambiguities and technical limitations that should be corrected. This provision is meant to accomplish those ends.

Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as they are done with the intent to obstruct, impede or influence the investigation or proper administration of any matter, and such matter is within the jurisdiction of an agency of the United States, or such acts done either in relation to or in contemplation of such a matter or investigation. The fact that a matter is within the jurisdiction of a federal agency is intended to be a jurisdictional matter, and not in any way linked to the intent of the defendant. Rather, the intent required is the intent to obstruct, not some level of knowledge about the agency processes of the precise nature of the agency of court's jurisdiction. This statute is specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter by intent or otherwise. It is also sufficient that the act is done ``in contemplation'' of or in relation to a matter or investigation. It is also meant to do away with the distinctions, which some courts have read into obstruction statutes, between court proceedings, investigations, regulatory or administrative proceedings (whether formal or not), and less formal government inquiries, regardless of their title. Destroying or falsifying documents to obstruct any of these types of matters or investigations, which in fact are proved to be within the jurisdiction of any federal agency are covered by this statute. Questions of criminal intent are, as in all cases, appropriately decided by a jury on a case-by-cases basis. It also extends to acts done in contemplation of such federal matters, so that the timing of the act in relation to the beginning of the matter or investigation is also not a bar to prosecution. The intent of the provision is simple; people should not be destroying, altering, or falsifying documents to obstruct any government function. Finally, this section could also be used to prosecute a person who actually destroys the records himself in addition to one who persuades another to do so, ending yet another technical distinction which burdens successful prosecution of wrongdoers.

Lord of Boners posted:

It's not asking him to maintain the evidence. If they had waited a month and the fish rotted, he wouldn't be charged for failing to put them in a chamber where time doesn't mover forward. He destroyed evidence. It seems semantic, but is actually a huge difference.

I think it seems silly because it's just a fish. But fishing policy is HUGELY important. The EU has had multiple landmark cases over fishing policy. Fish are more important than everyone thinks!

Also, I don't know the specifics. Just engaging in some general lawyering here. If the facts are different, never mind.

quote:

 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.

Ron Jeremy posted:

Did he sneak into an evidence locker or something? If the state wants to charge him, the state needs to do the work.

Ron Jeremy posted:

Sorry to drag this into the ground, but I feel strongly about burden of proof.

Ron Jeremy posted:

So the officials were on his boat, measured, and found him and cited him. What more do they need to make this stick? They have a measurement, a record of said measurement, testimony of the officers... do they really need the fish to make the citation stick? And if they do, they should really take the fish at that point.

Jagchosis posted:

I mean, textually he did violate the statute but it does seem like a question of prosecutorial discretion, as Congress was much more focused on document shredding to cover accounting fraud when they wrote this:


http://www.gpo.gov/fdsys/pkg/CREC-2002-07-26/pdf/CREC-2002-07-26-pt1-PgS7418.pdf

Note, I am not saying that I think Yates will win, quite the contrary. It just seems like overreach to be prosecuting the falsification of fish.

esquilax posted:

I'm taking that statement in the opposite way - that the existing laws were very specific with regards to when you could be charged with destruction of evidence, which left a lot of loopholes. So they introduced a broad, general rule against destruction in order to close loopholes in advance. While accounting fraud was definitely on their minds, I think they specifically wrote the law so that it wouldn't only apply to accounting fraud.


Obviously the maximum punishment of 20 years is way disproportionate to the crime itself. But I see nothing wrong with a prosecution in this case resulting in a reasonable punishment to tell offenders "if you get caught red handed, don't destroy the evidence"

Jagchosis posted:

Rereading it, I change my mind and agree with you. I guess the whole thing, at first anyway, smelled fishy.

Javid posted:

The original fish size violation was just a red herring; they (maybe) just wanted to give him an opportunity and motivation to destroy evidence.


If we want to get really about prosecutors going for people and finding crimes later: If their original citation was enough to prove he kept undersized fish, why did they still need the fish afterwards? If it was NOT enough to prove it, how is it enough to prove he ever had more undersized fish than he did upon reaching short? Did they photograph the undersized fish at the time? Or did they just write a ticket for 72 undersized fish when there were only 69 and then claim he had to have tossed the others?

Hell, could somebody have miscounted?

quote:

A crew member later testified that some of the fish were thrown overboard and replaced with fish closer to the required size.

Javid posted:

The original fish size violation was just a red herring; they (maybe) just wanted to give him an opportunity and motivation to destroy evidence.


If we want to get really about prosecutors going for people and finding crimes later: If their original citation was enough to prove he kept undersized fish, why did they still need the fish afterwards? If it was NOT enough to prove it, how is it enough to prove he ever had more undersized fish than he did upon reaching short? Did they photograph the undersized fish at the time? Or did they just write a ticket for 72 undersized fish when there were only 69 and then claim he had to have tossed the others?

Hell, could somebody have miscounted?

Javid posted:

The original fish size violation was just a red herring; they (maybe) just wanted to give him an opportunity and motivation to destroy evidence.


If we want to get really about prosecutors going for people and finding crimes later: If their original citation was enough to prove he kept undersized fish, why did they still need the fish afterwards? If it was NOT enough to prove it, how is it enough to prove he ever had more undersized fish than he did upon reaching short? Did they photograph the undersized fish at the time? Or did they just write a ticket for 72 undersized fish when there were only 69 and then claim he had to have tossed the others?

Hell, could somebody have miscounted?

esquilax posted:

KennyTheFish posted:

seems like a classic case of "the cover-up not the crime catching people out".

Ron Jeremy posted:

Sorry to drag this into the ground, but I feel strongly about burden of proof.


So the officials were on his boat, measured, and found him and cited him. What more do they need to make this stick? They have a measurement, a record of said measurement, testimony of the officers... do they really need the fish to make the citation stick? And if they do, they should really take the fish at that point.

Maybe they didn't measure? Just suspect as it says? They're on the boat. Take the drat fish.

Forcing the guy to maintain evidence against him after all this other stuff happened is dumb. Citizens shouldn't have to do the states work, especially when it's self - incriminating.

Ron Jeremy posted:

Since this is about a contraband, let's say I get busted by a cop with a bag of weed. The cop writes me a ticket and tells me to show up tomorrow at court with my bag of weed.

I show up to court minus the bag of weed. Is that also destruction of evidence?

I'm convinced by the other posters that it's clear the guy did destroy evidence based on the testimony of the other guys on the boat. What kills me here is that it was completely avoidable if the official who boarded the boat had simply taken the fish. Hell taken a picture of the fish. He's now facing an additional charge because the official didn't do the simplest thing in my mind, which is to seize the contraband.

If the other crew had kept their mouth shut, what then? You get to shore and there are no offending fish. Does the guy get off on the original charge?

So maybe that's what bugs me. If the state is going to charge someone, they should do the work including taking control of the evidence.

Ron Jeremy posted:

Since this is about a contraband, let's say I get busted by a cop with a bag of weed. The cop writes me a ticket and tells me to show up tomorrow at court with my bag of weed.

I show up to court minus the bag of weed. Is that also destruction of evidence?

I'm convinced by the other posters that it's clear the guy did destroy evidence based on the testimony of the other guys on the boat. What kills me here is that it was completely avoidable if the official who boarded the boat had simply taken the fish. Hell taken a picture of the fish. He's now facing an additional charge because the official didn't do the simplest thing in my mind, which is to seize the contraband.

If the other crew had kept their mouth shut, what then? You get to shore and there are no offending fish. Does the guy get off on the original charge?

So maybe that's what bugs me. If the state is going to charge someone, they should do the work including taking control of the evidence.

SubponticatePoster posted:

It's more comparable to getting popped with a bag of weed, and the cop tells you come over to his to his car where he can get an evidence testing kit for the weed. On the way to his car you eat the contents of the bag and replace it with parsley. The patrol boat is a tiny thing and this was a larger vessel. The agent simply didn't have enough room on his boat for all the contraband fish. The guy is facing an additional charge because he destroyed evidence. When you have broken the law the solution is not to break more laws to try and cover up the one you already broke.

Lord of Boners posted:

It isn't about burden of proof though? It's about destroying evidence. The burden of proof is still on the prosecution. You seem to be equating "not destroying evidence" with the burden being on the defendant to prove his innocence, which is not the case here.

Let me give a hypothetical to illustrate. John Johnson builds an addition to his house that is illegal under state law X. The state, choosing to not inconvenience Mr. Johnson if possible, notes the addition and then tells him to do no more home repairs pending a court hearing. Mr. Johnson then renovates his house to not violate any laws.

In that hypothetical, Mr. Johnson broke the law. Just because the state allowed him to keep living in his house does not mean that suddenly the burden of proof is on him. All he has to do is nothing, but he instead chose to renovate. The action took place on his side, not the government's. This is the difference between burden of proof and destruction of evidence. It's the difference between doing nothing, and affirmatively changing the circumstances surrounding the case. That is why this criminal charge is being brought. An action, instead of doing nothing, to cover up evidence of a crime.

Cheekio posted:

I think the 'burden of proof' conflation is that cold storage and transport of perishable goods isn't free, and is actually quite expensive. If the statue was against fish less than 20' long instead of 20", it would be obviously burdensome for someone to maintain and provide 72 19' perishables to the court. Nothing to do with the legal term, but someone has to pay for that evidence to get to court and apparently it's ok to decide the fisherman, not yet proven guilty, is expected to foot the bill, which does kind of suck.

I imagine it would get recuperated if the state lost their case, or could arguably be deducted from whatever fine is decided if the defendant made a stink about it in court.

Ron Jeremy posted:

Isn't the simplest solution for the cop in your example to take possession of the suspected weed and take it himself over to his car? With the fish too, it wasn't a ton of tuna, it was..70? 20" fish?

Gyges posted:

Considering the fisherman was hauling the rest of his catch into port at the same time, the cost should be negligible.

Ron Jeremy posted:

Isn't the simplest solution for the cop in your example to take possession of the suspected weed and take it himself over to his car? With the fish too, it wasn't a ton of tuna, it was..70? 20" fish?

Cheekio posted:

I think the 'burden of proof' conflation is that cold storage and transport of perishable goods isn't free, and is actually quite expensive. If the statue was against fish less than 20' long instead of 20", it would be obviously burdensome for someone to maintain and provide 72 19' perishables to the court. Nothing to do with the legal term, but someone has to pay for that evidence to get to court and apparently it's ok to decide the fisherman, not yet proven guilty, is expected to foot the bill, which does kind of suck.

I imagine it would get recuperated if the state lost their case, or could arguably be deducted from whatever fine is decided if the defendant made a stink about it in court.

Ron Jeremy posted:

Isn't the simplest solution for the cop in your example to take possession of the suspected weed and take it himself over to his car? With the fish too, it wasn't a ton of tuna, it was..70? 20" fish?

Ron Jeremy posted:

Isn't the simplest solution for the cop in your example to take possession of the suspected weed and take it himself over to his car? With the fish too, it wasn't a ton of tuna, it was..70? 20" fish?

N00ba the Hutt posted:

For Supreme Court content, an interesting article on how Ginsburg and Scalia coexist (with some standard Scalia quotes, railing from the bench at how things he disagrees with happen and people just don't find it as horrific as they should, or something):
http://www.scotusblog.com/2014/04/a-view-from-the-court-the-ginsburg-scalia-show/

How often can potential nominees to the court be picked out ahead of time by interested observers (i.e., this thread)? I recall Harriet Miers was an out-of-left-field shitshow, but did people see Sotomayor and Kagan coming? If so, how does that become general knowledge? Is there some general consensus among judicial knowledgeables about "that judge sucks, but this one is going places"?

N00ba the Hutt posted:

Transferring anything at sea is inherently hazardous, so even getting someone to board and inspect is a bit of an adventure.

The Warszawa posted:

"Firsts" are kind of easy to pick out simply because so much of the judiciary is made up of white dudes - Sotomayor was pickable because there was a sentiment that it was about drat time there was a Latino/a Justice (not counting Cardozo), and that was the same "foresight" that made Miguel Estrada so controversial. For the most part, I tend to think that nominees who "everyone" talks about being obvious choices are usually nominees with friends who are reporters or are listened to by reporters (for example, Kagan and Toobin are close, apparently, and I recall that Greenwald was pretty heavy into Diane Wood when the Souter vacancy was up). That's also why Goodwin Liu got blocked for the 9th Circuit.

Green Crayons posted:

I don't follow. Liu got blocked because he had no reporter friends?

Green Crayons posted:

Any thoughts on whether the fact that he's currently serving on California's supreme court is providing him the experience he needs to be a credible nominee?