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Report detailing enforcement abuses barred from fisherman’s trial

Commercial fisherman Thomas Kokell at a dock in

Commercial fisherman Thomas Kokell at a dock in Point Lookout on July 9, 2010. Kokell was indicted Nov. 22, 2016, on charges of conspiracy, mail fraud and falsification of federal records in connection with the illegal harvest of more than $400,000 worth of fluke, authorities said. Credit: Newsday / Craig Ruttle

The first criminal trial of a Long Island fisherman charged in connection with a federal probe of a controversial fish-auction program is set to begin, but a report detailing fisheries enforcement abuses by the government has been barred from the trial.

Lawyers for Northport fisherman Thomas Kokell, charged in a multi-count indictment with overharvesting fluke, argued in pretrial motions that a 2010 federal inspector general’s report detailing abuses and “overzealousness” by the National Marine Fisheries Service was vital to the defense.

The Environmental Crimes unit of the U.S. Department of Justice has reached plea agreements with seven Long Island and New York City fishermen and fish dealers in connection with the six-year probe.

Most have been charged with mail fraud, wire fraud, conspiracy and false reporting crimes. Five received prison time or home detention, including a 74-year-old Mattituck fisherman charged with taking $78,000 in illegal fish. Fines and restitution have ranged from $150,000 to $932,000 and most lost their fishing or dealer permits.

In November 2016, Kokell was charged with conspiracy, mail fraud and falsification of federal records in connection with the illegal harvest of more than $400,000 worth of fluke. He is the first to fight the charges in court. The trial is set to begin next month.

His lawyers have argued that Kokell’s case should be handled as a civil, not criminal, case, citing findings from the inspector general’s report and the federal Magnuson-Stevens Act, which governs the fisheries.

Kokell, who was fined $120,000 in a 2006 case involving overfishing, had been a vocal critic of the marine fisheries agency‘s enforcement and legal practices.

He and his wife appeared with Sen. Chuck Schumer (D-N.Y.) at a Port Washington dock to demand action against the fisheries agency, a unit of the National Oceanic and Atmospheric Administration.

“Mr. Kokell, perhaps more than most,” wrote his attorneys Richard Levitt and Peter Smith, “has not been afraid to speak out, repeatedly and vocally, against NOAA’s enforcement practices and the bizarre rules that require fishermen to wastefully throw huge quantities of ‘bycatch’ or ‘overmatch’ into the ocean.

“The disgraceful waste caused by this policy alone is many, many times greater than all the illegal sales of which the Department of Justice complains,” the attorneys said.

But prosecutors argued successfully for exclusion of the 2010 inspector general’s report. They called it “irrelevant and prejudicial” evidence, noting that none of the agents who charged Kokell in the 2016 indictment were cited in the report.

U.S. District Judge Joseph F. Bianco agreed at a hearing earlier this month.

“I’m not saying a case is a fishing contest, but the case could completely get derailed if the propriety of the government’s investigation in terms of enforcement practices or things like that is put before the jury,” Bianco said, according to a transcript.

The federal investigation has focused primarily on New York, which has one of the lowest federal quotas for fluke — 7.6 percent of the entire East Coast allotment, compared with more than 20 percent each for Virginia and North Carolina, even though waters off New York are prime fluke grounds.

The 2010 inspector general’s report found “systemic, nationwide issues” at the National Marine Fisheries Service and its law-enforcement division.

The report said the agency misspent millions of dollars in fines collected from fishermen and fish seizures to purchase unauthorized cars, boats and travel, while “blurring” its regulatory and criminal-enforcement roles.

The inspector general noted the disproportionate number of cases and outsize fines against Northeast fishermen compared with the rest of the country.

The report also questioned the number of criminal investigators employed by the marine fisheries agency, whose primary function is to enforce federal law that calls chiefly for civil penalties. It called for a review to determine whether the agency “should continue to approach fisheries enforcement from a criminal-investigative standpoint.”

In their filings, Kokell’s lawyers argued that criminal prosecutions have been used “excessively to bludgeon fishermen.”

They pointed to an article written by Christopher Hale, trial attorney for the Justice Department who is prosecuting the cases, in which he “advises his colleagues to consider criminal charging alternatives to Magnuson-Stevens.”

Hale didn’t return a call seeking comment. Department spokesman Wyn Hornbuckle said the government’s filing speaks for itself.

The Justice Department in 2012 began criminal investigations of fishermen and dealers, six from New York and one from New Jersey.

The probe focused on a program known as research set-aside, which allows fishermen to bid at auction on the right to catch certain species of fish beyond a state’s allotted quota. In court papers, prosecutors have alleged a trail of abuses involving the program, calling it “a license to steal.”

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