A Northport clammer who was the first Long Islander to challenge at trial charges growing out of the federal government’s ongoing fisheries probe has accepted a deferred-prosecution agreement that could see his case dismissed in a year.
Thomas Kokell, a former commercial trawler-boat captain, was indicted in 2016 on four counts of mail fraud, conspiracy and filing false fishing reports in connection with an alleged scheme to illegally harvest nearly 200,000 pounds of fluke in 2011 and 2012. The fish were valued at nearly $400,000.
Kokell was released Tuesday on his own recognizance after a court appearance in which the deal was approved by a federal judge, according to federal court documents and Kokell's attorney. He will not enter a plea and the charges will be dismissed, avoiding prison time and fines, if he "avoids future misconduct" over the next year, according to his attorney Peter Smith and court documents.
The company affiliated with his fishing operation, however, will pay a fine of $5,000, according to Smith and the documents. Other fishermen caught up in the federal probe have seen several years of prison time and fines over $900,000.
Kokell was tried in March, but U.S. District Court Judge Joseph F. Bianco declared a mistrial after the jury was unable to reach a verdict after three days of deliberations. Smith said 11 of the 12 jurors voted to acquit.
“To us it’s a fair resolution,” Smith said of the deferred-prosecution agreement. “It avoids any risk of an additional trial, and it appears to be a fair resolution for both sides.”
Apart from the agreement, Cindi Seafood Corp., a company affiliated with Kokell’s fishing operation, agreed to plead guilty in coming weeks to a single count of making a false statement, and will pay a $5,000 fine, Smith said.
A spokesman for the Department of Justice’s environmental crimes unit, which brought the case, didn’t respond to a request for comment.
As part of the agreement, Kokell was required to sign paperwork admitting that he “often caught fluke in excess of the applicable quota,” that he and a cooperating government witness “would falsely describe fluke as some other species” on “numerous occasions” and concealed the harvest of “at least 150,000 pounds of above-quota fluke.”
“I understood doing that was against the law,” states the federal filing signed by Kokell. He agreed to avoid “future misconduct” through September 2019, after which the charges will be dismissed, the agreement says. The government can bring a new trial up to March 1, 2020, if Kokell breaches the agreement during the year.
The six-year federal probe has netted at least seven guilty pleas, including some with prison time and hundreds of thousands of dollars in fines.
Kokell was the first to challenge the government case at trial and has spent upward of $200,000 in legal fees to do so. At trial, Kokell’s lawyers sought to poke holes in the testimony of the government’s star witness, fish dealer Mark Parente, who has pleaded guilty and was cooperating in the government. Under withering cross-examination by Smith and co-counsel Richard Levitt, Parente on the stand admitted cheating on his taxes, violating terms of his bail agreement, even lying to the jury. In closing statements, even the government strained to defend his statements.
“You may hear that because of Mr. Parente’s lies and obstruction ... you can’t believe a word he says,” prosecutor Brendan Selby said. “And what I would like to say is ... did Mr. Parente repeatedly lie? Yes. Did he obstruct justice? Yes. Did he even erase notations that were incriminating to himself and the defendant shortly before this trial? Yes, he did.”
But Selby continued, “Viewing the evidence in the totality, and all the evidence including the records, there is so much that corroborates that one point about what he’s saying: that there was a conspiracy with the defendant.”
The government’s investigation has centered on a since-discontinued government-sanctioned program administered by an outside agency that allowed commercial fishermen to buy the right to harvest fish beyond the limits and seasons. Money from the fishermen funded fisheries research. Some fishermen were accused of failing to report all their harvest under the program, which prosecutors branded a “license to steal.”
The federal investigation has centered on Long Island and New York City. New York State has among the lowest commercial allotments of the federal fluke quota: 7.6 percent, compared with more than 25 percent for Virginia. Last month, state regulators shut down the commercial fishery for two weeks in New York to help manage the allotment through the year. Fishermen with a New York State permit can now take 50 pounds of fluke a day, less than a full basket.
Smith said the case, brought in 2016, has “taken a toll on Kokell” and his family, including their finances. Speaking with lawyers for many of those who pleaded guilty, Smith said he found the clients did so because they couldn’t afford to fight the charges in court.
"Quite a few of them took pleas because they couldn’t afford to go up against the government," he said.
Wyn Hornbuckle, a Department of Justice spokesman, declined to comment "beyond the documents we filed in court."