733 F.3d 1059 (11th Cir. 2013), 11-16093, United States v. Yates

Docket Nº:11-16093.
Citation:733 F.3d 1059
Opinion Judge:DUBINA, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John L. YATES, Defendant-Appellant.
Attorney:Linda Julin McNamara, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Tama Caldarone, Jeffrey F. Michelland, Douglas Molloy, U.S. Attorney's Office, Fort Myers, FL, for Plaintiff-Appellee. John Leonard Badalamenti, Federal Public Defender's Office, Tampa, FL, Martin Derovanesian, Federal Pu...
Judge Panel:Before DUBINA, JORDAN and BALDOCK,[*] Circuit Judges.
Case Date:August 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1059

733 F.3d 1059 (11th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

John L. YATES, Defendant-Appellant.

No. 11-16093.

United States Court of Appeals, Eleventh Circuit.

August 16, 2013

Page 1060

Linda Julin McNamara, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Tama Caldarone, Jeffrey F. Michelland, Douglas Molloy, U.S. Attorney's Office, Fort Myers, FL, for Plaintiff-Appellee.

John Leonard Badalamenti, Federal Public Defender's Office, Tampa, FL, Martin Derovanesian, Federal Public Defender, Federal Public Defender's Office, Fort Myers, FL, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:10-cr-00066-JES-SPC-1.

Before DUBINA, JORDAN and

Page 1061

BALDOCK,[*] Circuit Judges.

DUBINA, Circuit Judge:

Appellant John L. Yates (" Yates" ) appeals his convictions for violating 18 U.S.C. §§ 1519 and 2232(a), which arose out of his harvesting undersized red grouper 1 in federal waters in the Gulf of Mexico. After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we affirm Yates's convictions.

I.

On August 17, 2007, Yates and his crew prepared the Miss Katie, a fishing vessel, for a fishing trip into federal waters in the Gulf of Mexico. On August 23, 2007, John Jones (" Officer Jones" ), a field officer with the Florida Fish and Wildlife Conservation Commission, who was deputized by the National Marine Fisheries Service (" Fisheries Service" ) to enforce federal fisheries laws, was on an offshore patrol with fellow officers when he encountered the Miss Katie. Officer Jones noticed the Miss Katie was actively engaged in a commercial harvest using longline fishing gear, so he approached and boarded the Miss Katie to inspect for gear, fishery, and boating-safety compliance.

While on board, Officer Jones noticed three red grouper that appeared to be less than 20 inches in length, the minimum size limit for red grouper at that time.2 As a result, Officer Jones decided to measure Yates's fish to determine whether they were of legal size. Officer Jones separated grouper that appeared to be less than 20 inches so he could measure them. He measured the fish with their mouths closed and their tails pinched. Officer Jones gave Yates the benefit of the doubt on the fish that measured close to 20 inches but separated the fish that were clearly under the legal limit and placed those fish in wooden crates. In total, Officer Jones determined that 72 grouper clearly measured less than 20 inches. Officer Jones then placed the wooden crates in the Miss Katie's fish box and issued Yates a citation for the undersized fish. Officer Jones instructed Yates not to disturb the undersized fish and informed Yates that the Fisheries Service would seize the fish upon the Miss Katie's return to port.

Contrary to Officer Jones's directions, Yates instructed his crew to throw the undersized fish overboard. Thomas Lemons (" Lemons" ), one of the crewmembers, testified that he complied with Yates's directive. At Yates's prompting, the crew then took other red grouper and placed them in the wooden crates that had held the undersized fish. After the switch was completed, Yates instructed Lemons to tell any law enforcement officers who asked that the fish in the wooden crates were the same fish that Officer Jones had determined were undersized.

After the Miss Katie returned to port, Fisheries Service special agent James Kejonen (" Agent Kejonen" ) traveled to Cortez, Florida to meet Yates and investigate

Page 1062

the report of undersized grouper. On August 27, 2007, Officer Jones was called in to re-measure the fish, which he did in the same manner as before— mouths closed and tails pinched. Sixty-nine fish measured less than 20 inches. Officer Jones noticed that, although some of Yates's undersized red grouper had previously measured as short as 18 to 19 inches, none of the grouper unloaded at the dock were that short. In fact, at sea, most of Yates's grouper had measured between 19 and 19 1/2 inches, but at the dock, the majority of the grouper measured close to 20 inches. Due to Officer Jones's suspicion that the undersized fish measured on August 27 were not...

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