Montauk fisherman's trial: Prosecutors cite records, defense asks, 'Where's the fluke?'

The federal government's closing arguments in a case against a Montauk fishing captain focused on boxes of financial documents alleging years of "financial fraud" by selling illegal fish, while the fisherman's defense lawyers asked, "Where's the fluke?"

During closing arguments Thursday morning in the case against Montauk fisherman Christopher Winkler, federal prosecutor Christopher Hale displayed a chart he said showed the fruits of Winkler's alleged fraud of $736,074. Winkler is accused of taking more than 200 fishing trips between 2014 and early 2017 in which he underreported his landings of fluke and black sea bass.

Hale charged that Winkler did so by falsely filling out federally required fishing vessel trip reports to sharply undercount his landed catch — $144,813 in all during the years of the alleged conspiracy. Corresponding purchase orders confiscated by the government from fish dealers and others showed the actual amounts of those fish sold were $880,887 during those years.

"This is a financial fraud case," Hale told jurors. "He made a lot of money from his crimes." He showed tax documents showing purchases from a building supply company allegedly using the funds to build a house.

Winkler, who has pleaded not guilty, faces 20 years if convicted. The jury is expected to begin deliberating Friday or Monday.

Hale noted that federal agencies depend on accurately filed reports to determine fish populations and set quotas. Omissions on the reports "not only covered up fraud but impeded NOAA" from its job of protecting the fishery, Hale said.

But defense attorney Richard Levitt said the government had fallen short in making its case, and his reference to "where's the fluke?" in his opening statement was an allusion to his earlier cross examination of federal fisheries agent Todd Smith. Levitt had repeatedly asked Smith why he never boarded Winkler’s boat to open scores of boxes that would have confirmed allegations in voluminous paper records that, prosecutors say, document that Winkler sold illegal fish.

Closed cartons of fish described in those documents were shown in videotapes played in court and frequently discussed by cooperating witnesses, but never shown in open boxes after a law-enforcement raid, the lawyers said.

“I made a choice not to do a boarding,” Smith, a former New York State fisheries agent who now works for the National Oceanic and Atmospheric Administration’s fisheries enforcement division, told the jury on Wednesday. Smith said his concern was that Winkler would flee the dock and dump his cargo of boxed fish at sea.

But Levitt questioned that decision: “You could have done it under circumstances where he wouldn't have just sailed off into the sunset and dumped the stuff at sea, right?”

“I’ve been through a whole host of scenarios in my 24 years and I’ve had just about every different trick pulled on me,” Smith said.

“The bottom line,” Levitt said, “is that at a point in time when you could have, at the very least, gone onto the dock and searched those cartons, you made a decision not to. Correct?”

“Correct,” Smith said.

Hale asked jurors not to judge federal agent Smith's decision not to board Winkler's boat or seize suspected illegal fish.

"It's not like ‘CSI,’ ” he said. "It's the real world. Though he [Todd Smith] might have gone a different way, he made a choice based on his experience and information from his various colleagues."

Earlier in the week, Smith had confirmed the government’s findings that the fishing vessel trip reports filed by Winkler via email or mail did not match with purchase orders of the fish Winkler allegedly sold to dealers such as the Gosmans of Montauk. Those discrepancies, and testimony from Asa and Bryan Gosman and other fishermen and dealers, were the foundation of the government’s case of conspiracy, wire fraud and mail fraud.

Levitt and his co-counsel, Peter Smith, sought to discredit the witnesses and the investigation itself, pointing to illegal fishing activity by one fisherman after he’d reached two immunity agreements with the government.

Levitt on Tuesday established from Todd Smith that his investigation started with a tip from a witness in a prior fishing trial who operated from the New Fulton Fish Market.

Levitt pointed out that the cooperating witness, Mark Parente, had previously falsified evidence, altered or destroyed documents and “committed perjury at trial, didn’t he?”

“Correct,” Todd Smith testified.

Hale acknowledged there were "some colorful characters, maybe even some scoundrels" who cooperated with their testimony. But, he said, "We take the witnesses as they come. It's not a beauty pageant. It was, ‘This person present observed something useful.’ ”

Levitt during his closing argument pointed to government testimony that fluke were not overfished and that regulators do not require fishermen to report amounts of fish that are thrown back each day as over-the-limit discards, despite their impact on fish populations.

"Most discards are dead," Levitt noted.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.