PACIFIC COUNTY — Pacific County prosecutors will fight a Superior Court’s decision to reverse the convictions of two brothers who were charged with exceeding daily halibut fishing limits.
In March, a judge found serious flaws in the cases of David C. Gudgell, 59, and Robert W. Gudgell, 58, two charter boat captains who worked for their family’s Ilwaco-based business, Pacific Salmon Charters. The judge found the search warrant used in the cases was overbroad, prosecutors had overcharged the men and important instructions were not given to the jurors before deciding a verdict.
On June 5, the Washington State Court of Appeals, Division II, agreed to review the decision overturning the convictions. The decision of county prosecutors to further pursue the case came as a surprise to Mark W. Muenster, an attorney based in Vancouver, Washington, who represented the brothers in their appeals.
“Both David and Robert complied with all of the provisions of the sentence that they judge had put in place,” Muenster said, in an interview with the Observer Monday, July 13. “They did the jail time and suffered a year of lost income.”
David Gudgell served 27 and a half days in jail and completed 220 hours of community service. He was fined $13,000. Robert Gudgell served 20 days in jail and completed 160 hours of community service. He was fined $8,000. The brothers may be able to recoup some of what they paid in fines if the convictions are not reinstated, Muenster said.
As part of their sentences, South Pacific County District Court Judge Nancy McAllister also banned the brothers from fishing or being on a boat for a year, unless it was a Washington State Department of Transportation ferry. That year was almost up when the brothers won their appeals.
Prosecutors sunk a lot of resources into winning the cases against the brothers. The office spent $10,000 to bring in 28 witnesses for the cases. When McAllister sentenced the brothers in March 2019, Pacific County Chief Deputy Prosecutor Ben Haslam told the Observer the case deserved an unusual amount of time and money because the crimes charged hurt the environment and an industry critical to the local economy. The prosecutor’s office was later honored for its work on the case by the Washington State Department of Fish and Wildlife.
The investigation into the Pacific Salmon Charters began after a customer reported the business for violating halibut fishing limits. On May 11, 2017, the customer went on a fishing expedition aboard the F/V Westwind with David Gudgell as captain. With a total of 12 people on board, the boat’s catch limit was 12; one fish per person, per day. The customer told WDFW the boat caught 19 halibut, with the seven smallest fish being thrown overboard. The halibut appeared to be dead when they were thrown back into the water, the customer said.
A WDFW officer went undercover to investigate the business, riding with a different crew. He reported a similar story to the customer’s. The officer said the crew kept the extra halibut in a tank while customers fished, which allowed the largest halibut to be selected by customers, while the rest went back into the water. The vessel exceeded its daily limit by four, the officer reported. Three of these halibut seemed to swim away after being thrown back, but one appeared to be dead, the officer reported.
Using the information from some of the customers of F/V Westwind, WDFW was granted a warrant to search the offices of Pacific Salmon Charters, as well as the vessels in their fleet for customer records, scheduling ledgers, boarding passes and log books related to the 2017 halibut fishing season. This allowed officers to gather more customer statements about the practices of the Gudgell’s charter business.
Brothers win appeal
The appeal was heard in Pacific County by Grays Harbor County Superior Court Judge David Edwards. Pacific County Superior Court Judge Donald Richter needed a substitute judge because he was an attorney with the Pacific County Prosecutor’s Office when it began investigating the brothers.
Edwards found the search warrant used to get Pacific Salmon Charters’ business records was too broad. He also found McAllister should not have granted the warrant as it was based on “speculation and unsupported conclusions.” Edwards suppressed any evidence found as a result of the search.
Prosecutors also charged the men with the same crime twice, Edwards wrote in his order. Prosecutors charged the brothers with both failing to immediately release any halibut in excess of the daily limit and unlawful possession of more than one daily limit of halibut, Edwards said. This amounted to double jeopardy because one of the charges was a lesser offense included in the other.
Finally, prosecutors explained accomplice liability to the jurors in both cases, despite a legal instruction for what accomplice liability was not being provided to the jurors. This flaw alone required the cases to be reversed, Edwards wrote.
Muenster wanted a higher court to look at McAllister’s sentencing of the brothers, especially the brothers from being on a boat for a year. Muenster asked the court to stay the brothers’ sentences until after an appeal decision was reached. McAllister denied the request.
Pacific County prosecutors have until Aug. 24 to file a brief on what it wants the court to do in the case and include a supporting argument.