A Cape May commercial fisherman charged with killing a pilot whale in 2011 has gotten a federal order prohibiting federal agents and a defense investigator from speaking to informants in the case.
Defense attorney Bill Hughes Jr., of Cooper Levenson in Atlantic City, said in court documents the informants told his investigator they were threatened and harassed by federal agents.
And in its submission, the U.S. Attorney’s Office alleged the defense investigator misled the informants while interviewing them.
The order follows an Oct. 17 teleconference between U.S Magistrate Judge Cathy L. Waldor, Hughes and lawyers for the U.S. Attorney’s Office.
“There was no finding by the court at all about any wrongdoing,” said Will Skaggs, a spokesman for the U.S. Attorney’s Office in Newark. “This is simply an order by the judge binding both parties.”
The order says people who previously had contact with the informants, including federal agents, federally deputized state agents and the defense counsel’s private investigator, cannot have further contact with them.
The attorneys and other representatives can speak to the informants but must keep records of all conversations, the order said.
“We requested it after a confidential informant indicated (to the defense investigator) he had been threatened and harassed by certain individuals during the course of the investigation,” Hughes said.
According to court documents, Daniel Archibald is a commercial fisherman who lives in Cape May and was employed on the fishing boat Capt. Bob, a tuna boat out of Sea Isle City, in 2011.
Archibald was indicted in 2015 on two counts, one of conspiracy to take marine mammals on the high seas, and one count of violating the Marine Mammal Protection Act.
Prosecutors said Archibald used a rifle to shoot at short-finned pilot whales feeding on the long-line catch of the Capt. Bob and that he killed a pilot whale that washed up on the beach in Allenhurst, Monmouth County, with a bullet to its jaw.
They also said they have tied the bullet found in the animal’s jaw to a World War II era Mosin-Nagant rifle belonging to Archibald and found on the Capt. Bob.
But how the government got the search warrant to seek the gun is at issue. There will be a hearing soon on whether the evidence of the gun should be suppressed.
The informants, who had been detained for minor violations in 2014, according to court documents, were offered leniency if they could help investigators with more serious cases.
They were involved in leading federal agents to Archibald’s rifle, according to court documents.
But a brief filed by Hughes accuses the government of using one of the confidential informants to get photos of the rifle through “what appears to be an illegal warrantless search” by breaking into the Capt. Bob.
The photos were then used to obtain a search warrant, according to the document.
It is against the law for commercial fishermen to intentionally harm a seal, whale or dolphin unless trying to save human life.
But the law is far less black and white when it comes to unintentional killing.