Coast Guard 'judge' pressed to change probe report

The chief judge of the court system for NOAA Fisheries pleaded unsuccessfully with special investigator Charles B. Swartwood III last November to retract his written finding of "at least the appearance" of a judicial conflict of interest in the case against a fisherman, notes of the secret meeting show.

Swartwood's report on the government's case against New Bedford scalloper Larry Yacubian brought the fisherman a Cabinet-level apology and $400,000 in reparations. The apology and reparations were among several extended last year to a number of fishermen and waterfront businesses in Gloucester and other New England ports.

Taken by Swartwood's assistant Tony K. Lu, the notes were obtained by the Times from the Commerce Department via the U.S. Freedom of Information Act.

After reviewing the notes of the meeting, Congressmen John Tierney and Barney Frank said Tuesday they would refer the matter to Commerce Department Inspector General Todd Zinser, whose 2010 investigation uncovered widespread abuse of authority at the expense of the fishing industry. His probe was the foundation of Swartwood's more detailed casework.

"I am deeply concerned about these latest accusations," said Sen. Scott Brown. "The Special Master is supposed to be an unbiased and objective investigator and any attempts to influence him are wrong."

The notes and emails to Swartwood coordinating the meeting reflect the active involvement of Cam Kerry, chief counsel for the Commerce Department, and his deputy Geovette Washington, as well as Monica Medina, NOAA Administrator Jane Lubchenco's principal deputy. Their initiative was aimed at clearing the reputation of the Coast Guard judges via the secret meeting.

Although fragmentary, the notes obtained by the Times describe an impassioned effort by Joseph Ingolia, then chief justice of the U.S. Coast Guard Administrative Law Judge System, to resurrect the reputation of the system that suffered severe damage in Swartwood's 236-page report last April examining four dozen cases referred to him by Zinser.

By the date of the hour-long meeting in Swartwood's Boston office on Nov. 15, Ingolia, who has since retired, had negotiated a NOAA press release exonerating the system in exchange for its agreement to complete cases docketed prior to Sept. 8, 2011.

The press release of Nov. 10, five days before the meeting, was shown to Swartwood, while, according to the notes, Ingolia and Megan Allison, the court system administrator, emphasized that the chain of command at the Commerce Department and its subordinate agency NOAA had agreed it would be best for Swartwood to retract his allegations.

"I don't think that anybody has to be damaged by this," Ingolia is reported to have said. "You took testimony about facts, you carried out your duties with respect to what you were asked to do — used testimony — that testimony is wrong — you can come out with something, re-evaluate with new information, and with the respect to Coast Guard ALJ (administrative law judges), you say what you want by way of correction — if that happens, it aligns everything .... "

Swartwood, hired by then-Commerce Secretary Gary Locke to pick up the most troubling threads of the general investigation into possible miscarriages of law in the northeast region headquartered in Gloucester, held his ground.

"I am not going back to the first report — the secretary can do whatever — I won't do it," Swartwood is reported as saying after intense legal argument over the facts in the missteps against Yacubian, whose reparations award of $400,000 was $70,000 more than Swartwood recommended.

At the time Ingolia, the system administrator, and another judge pressed Swartwood to correct his findings, Yacubian's case remained active before a judge in the Coast Guard system as he sought reimbursement of legal fees under the Equal Access to Justice Act.

The other defining case in the Swartwood report, the virtual grudge efforts of NOAA law enforcement to defeat the Ciulla family which ran the since-sold Gloucester Seafood Display Auction, also remains alive; the Ciullas are also appealing for legal fee reimbursement under the same law to Secretary of Commerce John Bryson.

In addition, Swartwood was in the midst of reviewing another 66 cases at the time of the meeting with Ingolia and his party.

"You understand I'm involved in another investigation," he explained, according to the notes.

They argued over the wording in Swartwood's report — Ingolia claiming that the facts of the Yacubian case were misrepresented by Swartwood, and that there was no evidence of bias against him by the Judge Parlen McKenna.

But Swartwood countered that he made a subtly different allegation, that of the "appearance of a conflict" of interest due to McKenna's travel soon after the trial to an enforcement conference in Kuala Lampur, Malaysia, that was also attended by NOAA litigators in the Yacubian case.

Swartwood told Ingolia that opinion was nearly universal that fishermen could not get a "fair shot" from the judges in the system, adding, "I am beginning to get the impression that you were used by certain enforcement personnel."

Swartwood has not yet submitted his second report to Bryson.

Ingolia and his interim successor, Judge McKenna, did not respond to a request for comment.

Swartwood declined comment. Efforts to obtain reaction to the notes from NOAA and officials in the Department of Commerce were also unsuccessful.

Pamela Lafreniere, Yacubian's lawyer, declined comment. But in an email, Burns and Levinson senior partner Paul Muniz, who represented the Gloucester auction, said, "In my opinion, what reportedly transpired at this meeting lends further credence to Judge Swartwood's findings concerning the perception among those in the industry that the Coast Guard Administrative Law Judges are biased in favor of NOAA."

"This is an outrageous example of defiance," Congressman Frank said Tuesday. "The meeting with Swartwood is a caricature of law enforcement. There are laws against witness intimidation. This episode removes the last vestige of doubt that fishermen face one of the most unfair and corrupt law enforcement systems in America."

"Assertions that the Coast Guard Administrative Law Judges lobbied Special Master Smartwood in an attempt to convince him to make public statements on their behalf raises serious concerns of appropriateness," added Tierney. "The fishing community deserves to know more about the circumstances of this meeting."

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.

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