Showing posts with label Its. Show all posts
Showing posts with label Its. Show all posts
Monday, February 27, 2017
Its not about the grouper it wasnt even square Yates v Feds
This Supreme Court case revolves around local commercial fisherman John Yates. The facts of his original case in many ways no longer matter. Unfortunately for Mr. Yates he is now at the center of a maelstrom about the application of a Federal law. It's also a sad story. It made Mr. Yates a felon, destroyed his livelihood, and represents a legal overreach that could potentially happen to anyone. Common sense has apparently left the Federal prosecution system.
A short summary of what happened is as follows. Mr Yates and and his crew were fishing for Red Grouper offshore when his vessel was boarded by a Florida Fish & Wildlife officer. The officer had been deputized to operate in Federal waters where the vessel was located. The officer found some of the 1700 pounds of Red Grouper frozen in the hold were undersized. 72 of them to be exact.
I just want to interject a couple of notes here regarding some of Mr. Yates defense arguments. He alleges that the officer did not follow Federal statutes (50 C.F.R. § 622.2) regarding how to measure fish. I will save you some of the pain of grinding through the document, and now you will know how to measure a fish.
"The straight-line distance from the tip of the snout to the tip of the tail (caudal fin), excluding any caudal filament, while the fish is lying on its side. The mouth of the fish may be closed and/or the tail may be squeezed together to give the greatest overall measurement."
The second argument he tendered is fish when frozen, which is critical in the hot Florida temperatures, are shorter than when thawed. I have talked with local fishermen, and they agree. Not in exactly how much smaller, but all say a frozen bent fish is hard to measure in the first place.
This in the end, is also no longer important either. To continue the story, 72 undersized fish are put in a container and Mr. Yates is ordered to retain them until he reaches port for inspection by the National Marine Fisheries Service. Before returning to port Mr. Yates ordered the crew to dump the fish and replace them with fish of nearly the correct size. Are you ready?
Most of us have seen The Deadliest Catch on TV. They use a handheld gauge to measure the crab's shell. When you watch them sorting a catch, they can spot the obviously large ones and they go straight to the tank. The questionable ones get measured. I think in every large haul in the quest to get things done quickly occasionally a few that are slightly undersized will get through. I also think the phrase "Close enough for government work" is in play."
When the boat reaches port the container has only 69 slightly undersized fish. Three are missing. A crew member later admits that sequestered fish had been dumped overboard and replaced. This is the real start of the story.
Like the crab fishermen, if you you're caught with undersized fish, you get a penalty. It's a civil matter like a parking ticket. And in this case Mr. Yates was cited and penalized. The matter was put to bed.
Three long years later Mr. Yates was charged by Federal Prosecutors under, hold your breath now, 18 U.S.C. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, TITLE 18 - CRIMES AND CRIMINAL PROCEDURE, CHAPTER 73 - OBSTRUCTION OF JUSTICE, SEC. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, which reads as follows:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both." The highlighted words "Tangible Object," that's the three missing Red Grouper.
This law is more colloquially known as the Sarbanes–Oxley act and or Sarbox. The section of the law above is known as the anti-shredding provision. This was legislation that arose out of the collapse of Enron, Tyco Int'l, Worldcom and others. In simple words the intent of this piece of legislation was to make it illegal to shred or destroy documents, computer records and similar materials that were required for a Federal investigation of a corporation's activities. I don't know about anyone else, but the intent seems clear, and I can't see how at any practical level that it can be construed to now apply to a fisherman and some missing grouper.
Mr. Yates has two other Federal charges added to the above, goes to court, and loses on two of three charges. The judge buys the Federal Prosecutors argument that a "tangible object" as described in the Sarbanes–Oxley act can be a fish. Since a fish is now a tangible object, and it was destroyed by dumping it overboard, Mr Yates loses the case and is sentenced to 30 days in prison. It could have been much worse, the penalty can be up to 20 years in prison. He appeals his conviction and now the Supremes get to decide what a "Tangible Object" really is.
One of the other defences Mr. Yates argues is "Lack of Fair Notice." What this means is there is no way he could have reasonably, or possibly known that his act of discarding the said three grouper was a Federal crime as it was applied to Sarbox. I certainly didn't know this was possible, and I think few if any readers know this either.
This court case and conversation is in part about the subject of "Over criminalization." Today there are over 4500 Federal laws governing criminal behavior. Add to this the about 300,000 criminal Federal regulations. These are estimates because of the difficulty involved in even trying to count them. Mix well, and add a dash of Sarbox out of context. You have just provided Federal Prosecutors with almost limitless ways to make anyone they want a criminal. The application of the Sarbanes–Oxley act anti-shredding provision is the icing on what could be a very onerous cake for the public.
The Government's case is the words "Tangible Object" means anything solid, and would most likely include things not quite so tangible like oxygen gas. The term they apply is "Natural Meaning", and they argue the context in which "Tangible Object" is used in the Sarbox legislation has no bearing. A law is a law, if it looks like a duck....
The defense is saying two things. The application of the Sarbanes–Oxley act was inappropriate, and not the law's purpose or intent, and the use of "Tangible Object" should be placed in context with the other words used in the description like record, document et al. Hard drive, computer disks, thumb drives and the ilk fit the "Tangible Object" context well. Fish, not so much.
My take is if the original writers of the legislation had added fish to the list they would have laughed later about it over a beer, and removed it promptly before anyone saw it. I would suggest to the Justices they should do this and see how well it seems to fit the the intent. Here is what is looks like.
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, fish or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction....."
Hmmm... when you do that, fish seems out of context and not inline with the purpose of the act. This doesn't appear to be rocket science!
The real crime here wasn't the undersized grouper, but the unfathomable and unbelievably inane, and bordering on cruelty behavior of the prosecutors who used Federal law, and huge sums of the publics money to pursue this minor infraction in the first place. They must have been too busy working on this case when the bankers and their collective greed caused the near collapse of the US economy and the recession. Few involved with that were ever prosecuted. I guess the ones who made hundreds of millions of dollars peddling bad mortgages wore expensive suits and seemed be be nice folks, unlike a weathered fisherman in Cortez Florida.
"It will be of little avail to the people if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood" James Madison
This is one of the many amicus curiae briefs filed on behalf of Mr. Yates
The second argument he tendered is fish when frozen, which is critical in the hot Florida temperatures, are shorter than when thawed. I have talked with local fishermen, and they agree. Not in exactly how much smaller, but all say a frozen bent fish is hard to measure in the first place.
This in the end, is also no longer important either. To continue the story, 72 undersized fish are put in a container and Mr. Yates is ordered to retain them until he reaches port for inspection by the National Marine Fisheries Service. Before returning to port Mr. Yates ordered the crew to dump the fish and replace them with fish of nearly the correct size. Are you ready?
Most of us have seen The Deadliest Catch on TV. They use a handheld gauge to measure the crab's shell. When you watch them sorting a catch, they can spot the obviously large ones and they go straight to the tank. The questionable ones get measured. I think in every large haul in the quest to get things done quickly occasionally a few that are slightly undersized will get through. I also think the phrase "Close enough for government work" is in play."
When the boat reaches port the container has only 69 slightly undersized fish. Three are missing. A crew member later admits that sequestered fish had been dumped overboard and replaced. This is the real start of the story.
Like the crab fishermen, if you you're caught with undersized fish, you get a penalty. It's a civil matter like a parking ticket. And in this case Mr. Yates was cited and penalized. The matter was put to bed.
Three long years later Mr. Yates was charged by Federal Prosecutors under, hold your breath now, 18 U.S.C. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, TITLE 18 - CRIMES AND CRIMINAL PROCEDURE, CHAPTER 73 - OBSTRUCTION OF JUSTICE, SEC. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, which reads as follows:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both." The highlighted words "Tangible Object," that's the three missing Red Grouper.
This law is more colloquially known as the Sarbanes–Oxley act and or Sarbox. The section of the law above is known as the anti-shredding provision. This was legislation that arose out of the collapse of Enron, Tyco Int'l, Worldcom and others. In simple words the intent of this piece of legislation was to make it illegal to shred or destroy documents, computer records and similar materials that were required for a Federal investigation of a corporation's activities. I don't know about anyone else, but the intent seems clear, and I can't see how at any practical level that it can be construed to now apply to a fisherman and some missing grouper.
Mr. Yates has two other Federal charges added to the above, goes to court, and loses on two of three charges. The judge buys the Federal Prosecutors argument that a "tangible object" as described in the Sarbanes–Oxley act can be a fish. Since a fish is now a tangible object, and it was destroyed by dumping it overboard, Mr Yates loses the case and is sentenced to 30 days in prison. It could have been much worse, the penalty can be up to 20 years in prison. He appeals his conviction and now the Supremes get to decide what a "Tangible Object" really is.
One of the other defences Mr. Yates argues is "Lack of Fair Notice." What this means is there is no way he could have reasonably, or possibly known that his act of discarding the said three grouper was a Federal crime as it was applied to Sarbox. I certainly didn't know this was possible, and I think few if any readers know this either.
This court case and conversation is in part about the subject of "Over criminalization." Today there are over 4500 Federal laws governing criminal behavior. Add to this the about 300,000 criminal Federal regulations. These are estimates because of the difficulty involved in even trying to count them. Mix well, and add a dash of Sarbox out of context. You have just provided Federal Prosecutors with almost limitless ways to make anyone they want a criminal. The application of the Sarbanes–Oxley act anti-shredding provision is the icing on what could be a very onerous cake for the public.
The Government's case is the words "Tangible Object" means anything solid, and would most likely include things not quite so tangible like oxygen gas. The term they apply is "Natural Meaning", and they argue the context in which "Tangible Object" is used in the Sarbox legislation has no bearing. A law is a law, if it looks like a duck....
The defense is saying two things. The application of the Sarbanes–Oxley act was inappropriate, and not the law's purpose or intent, and the use of "Tangible Object" should be placed in context with the other words used in the description like record, document et al. Hard drive, computer disks, thumb drives and the ilk fit the "Tangible Object" context well. Fish, not so much.
My take is if the original writers of the legislation had added fish to the list they would have laughed later about it over a beer, and removed it promptly before anyone saw it. I would suggest to the Justices they should do this and see how well it seems to fit the the intent. Here is what is looks like.
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, fish or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction....."
Hmmm... when you do that, fish seems out of context and not inline with the purpose of the act. This doesn't appear to be rocket science!
The real crime here wasn't the undersized grouper, but the unfathomable and unbelievably inane, and bordering on cruelty behavior of the prosecutors who used Federal law, and huge sums of the publics money to pursue this minor infraction in the first place. They must have been too busy working on this case when the bankers and their collective greed caused the near collapse of the US economy and the recession. Few involved with that were ever prosecuted. I guess the ones who made hundreds of millions of dollars peddling bad mortgages wore expensive suits and seemed be be nice folks, unlike a weathered fisherman in Cortez Florida.
"It will be of little avail to the people if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood" James Madison
This is one of the many amicus curiae briefs filed on behalf of Mr. Yates
Friday, January 27, 2017
Its one thing after another its a boat
A friend of mine recently bought a late model outboard motor that was attached to a free older center console boat. On the whole it was a very good buy, but the previous owner was somewhat cack handed at repairs, if they were made at all. The boat hull was buffed back into shape, and out it goes for an inaugural trip which results in a near sinking in some rowdy water. As the vessels stern compartment was filling with water it was observed that the bilge pump was not functional, but with some luck they made it back to the boat ramp. After waiting for half an hour for the water to drain out, home they went. I came over to look, and to listen to the story. Everything was fine in the beginning, but it was getting rough by the time they noticed the lowered back end and returned
The bilge pump was toast, and a new one was procured and wired in, initially to the bilge switch. The adjacent float switch was bad, and installing a new one was added to the list. There was a loose water intake fitting on the transom that was definitely leaking, and it was ripped out, and a new one installed. The gar plug was a cheap plastic one, and it was replaced with a new bronze fitting. It appears the leak source is found, and off the boat goes for another trial run.
Everything was fine, until a squall line caught them while they were running back to the boat ramp in rough water, and again the back end of the boat started to fill up, and the back end was dropping. This time there is a bilge pump, and it works, but It's disconcerting that it has happened again. The boat goes home, and the owner notices that on the aft port side of the boat, the hull had separated from the deck, and you could stick your finger into the crack. It didn't jump out at you until you got down, and looked up. It looked dramatic, and serious, and although there were other leaks, it was apparent that when running in rough seas, lots of water was being pushed up into this gap.
This is the sort of thing that looks scary, but in reality the fix is simple. In the first picture you can see cracks from an earlier impact with a dock or piling that was hard enough to flex the hull back, possibly pulling the screws loose in that area. Pounding in rough water causes the hull to flex, and more screws pulled loose until a substantial gap occurred. The T top was after market added, and poorly installed, and it also pulled loose from the deck in the rough water.
The fix is straight forward. Remove enough rub rail to get to all of the affected area. Drill new holes larger than the screw thread diameter, and a lot of them, just through the deck. This will allow the two parts to be drawn together. Counter sink the deck holes, and then drill holes appropriately sized for the screws into the hull, Wedge the hull away from the deck, and apply lots of spooge (in this case 3M 5200 into the interface), release the wedge, and put in the screws dipped in spooge also. There were 20 screws holding every thing together, and now there are 55. Copious quantities of mineral spirits and rags are used to clean up, and the rub rail is reinstalled. It took less than an hour to complete.
The bilge pump float switch has new wiring pulled to the batteries to allow automatic operation. Bilge wire connections are heat shrunk, and tied up clear of standing water. Easy peasy. Oops, pull all of the odd screw types out of the T top base, fill the old holes, and relocate the legs so the screw are in solid deck. Counter sink the leg pad holes, and reattach the beast properly, Oops, the battery switch is a little funky, put a new one on the list, and tie up the console wiring. The anchor locker cover is missing, make a template and buy some starboard. Are you sure the stern light works? It's a boat, it's always something. The boat was almost free.
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