Abalone poaching is a multi-ethnic enterprise, but the perception in Mendocino County is that Asians do most of it.
Do they, or is it racism talking?
Dung Tri Bui's all-white jury wasn't polled on their racial opinions, but they unanimously agreed he was stealing the prized mollusk.
Last week the Vietnamese immigrant was found guilty of conspiracy to take abalone for commercial purposes. The only reason Dung took the case to trial was that the DA offered him no choice: It would be a $76,000 fine if Dung pled to the charges, and a $76,000 fine if he went to trial.
The evidence was weak — the alleged mega-poacher had only four abalone in his freezer — but the prosecution was sure they could get the conviction because, well, because the perception is so widespread that Asian-Americans are born abalone thieves that a Mendocino County jury would be sure to find Dung guilty.
That Dung was profiled on the basis of his race was made clear during last week’s exorbitantly expensive trial, which cost well over $100,000 for the trial alone, not to mention a five month-long investigation involving nearly 30 agents and officers.
Consider this exchange by the lead investigator (a high-ranking Fish and Wildlife agent who insisted his name mustn’t be published because… well, because surveilling abalone poachers is so doggone dangerous) and defense attorney Keith Faulder:
Faulder: “So despite the fact that none of these Asians were doing any of the things you normally associate with abalone poaching — such as constantly changing their location, their clothing, their dive gear — despite all this, you decided to focus on my client and his Asian friends for this extensive investigation?”
Mr. Secret Agent: “We prefer not to use the word ‘Asians’ — we call them ‘subjects’.”
Mr. Faulder chuckled and said, “Yes, but they were all Asians, weren’t they?”
Secret Agent: “I, uh… well, yes, technically speaking, in this case primarily, yes, I guess you could say they were. But to us, they’re called subjects.”
Faulder: “So all Asians are ‘subjects’?”
The prosecutor, Deputy DA Daniel Maddow objected on the grounds that Faulder was being argumentative. Judge John Behnke sustained the objection.
Mr. Maddow had asked me not to print the warden’s name and I agreed to respect the request, but the warden wasn’t satisfied. He went to the bailiff and tried to have me ejected from the courtroom. When this project failed he crooked his finger and led me into the foyer. “You can’t use my name,” he ordered.
“I’m Special Ops.”
Just then DDA Maddow happened by and said, “I told you, Warden, that I had taken care of that. What is your problem?”
“He’s special, that’s all.”
The other wardens were not the least bit shy of their names, and there were a passel of ‘em. But their names are not important. The important names in this case are Hung Vo, Dung Wen, Chin Le, Van Nguyen, Dung Bui, but Secret Agent Special Ops must remain nameless.
In the opening hours of the trial, the DA amended the complaint, an old trick, right out of Perry Mason. Hamilton Burger always pulled this one on Perry, just after Perry had delivered his opening statements to the jury. It’s perfectly legal, but a little underhanded and defense attorney Faulder objected, saying he’d never received the discovery on the new charges.
Judge Behnke scowled and said, “If you can’t show where you discovered this to defense counsel, Mr. Maddow, I’m gonna deny your motion to amend.”
Maddow rummaged through his massive accordion file for the discovery log. A recess was called while Maddow retrieved it from his secretary. He showed it to the judge:
Maddow: “See, it says it was made available, right here.”
Faulder: “It says it was made available; it doesn’t say it was made available to me.”
Behnke: “I can’t tell if it was made available to Mr. Faulder. The pages in question say the warden saw Mr. Bui take three abalone, and that’s not surprising, but I can’t tell if it wasn’t provided, either.” (Bui is Mr. Dung's given name, not his surname. Asian surnames are first, given names last.)
Faulder: “I wish I’d known that before I gave my opening statements.”
In his opening statements Faulder told the jury that none of the defendants in this extensive investigation had ever been seen taking more than three abalone per day, the legal limit; none of them had been seen selling abalone; and none of them had been seen conspiring to do so. He also said that his client had never been seen taking abalone, only tagging his catch, and in fairness, he should have been notified before the trial began that the prosecution had this eyewitness, Mr. Special Ops, aka Secret Agent. But apparently the judge didn’t want to send everybody home just because of foul play at the trial's outset.
Mote Creek enters the Pacific Ocean at Whiskey Shoals, south of Point Arena. There are two designations, Whiskey North and Whiskey South, depending on what side of the estuary you visit. Up along Mote Creek, there’s a place the fish cops have named The Tagging Rock. They say it’s where poachers go to forge their Abalone Report Cards (ARCs). It’s out of the wind, and provides a hard surface to write on as well. The wardens consider the Tagging Rock a hideout for poachers. The mesh bag you hang from your float tube to put your catch in, the wardens call “a poaching net.” But it’s a creel, in fisherman parlance, thus the term creel limit, the fish you can legally take in a day, and the creel limit for abalone is three specimens, seven inches in circumference or bigger.
Anyway, Secret Agent hid himself above Tagging Rock on the bluffs and started videotaping Mr. Bui and “other subjects” on the first day of abalone season last year, April Fool’s Day, 2013. Secret Agent was on the case all summer except for July when abalone fishing is suspended.
He took the stand and said he taken hundreds of hours of footage of the subjects, holding his video camera over the edge of the cliff. Many of these video recordings were shown in court, with the warden using a pointer to show the jurors what was going on.
A diver would walk up to the big rock, which resembles a sinking ship, and get in the lee of it, then unsling his dive gear, and get out his three abalone. Next, he would take out his abalone report card, which rippled like a pennant in the wind until he got around to the non-wind side of the Tagging Rock. Once the diver got control of his paperwork and found a surface to write on, the camera would zoom in.
Secret Agent tapped the screen with his pointer as he described what was happening.
“Here we see the subject filling in the four, five, and six-numbered tags on what should be his second day of tagging, but this was on April 25th, and on his report card he has changed the date from 4/1 to 4/11, by adding another one; then he changed it to 4/24, by writing over the first one and adding an L-mark to the second one; and then, the next day, he changes it to a five… it’s very tricky how they can make their fours into fives.”
Of course none of this numerical trickery could be seen on the video. Secret Agent, in his capacity as expert, was deducing that the cards were being forged, because the tags were detached and appeared to have been reused.
At prosecutor Maddow’s prompting, the warden confirmed that it is a violation of the Fish & Game Code to detach the abalone tags.
“Now, here we see the subject take a white tissue out of his float tube, and there are the detached abalone tags.”
We see three slips of white paper on the video screen.
“We’d seen the subject take at least 12 abalone by this time,” Secret Agent said, referring to three previous days of diving by the “subject” — April 1st, April 11th, April 24th, and, at the time of this video, April 24th. Secret Agent testified that these were the same four, five, and six-numbered tags being reused.
There were five "subjects" all taking abalone that day at Mote Creek, and each took their turn at the Tagging Rock.
“The subjects then went to their vehicle and returned to Oakland.”
“Where did they go?”
“To a residence on Redding Street believed to be Mr. Hung Vo’s.”
“What happened at this residence?”
“The subject then took out the three abalone and ripped off the tags. Another warden then observed another vehicle arrive and leave with the abalone.”
“How did he know it was the abalone?”
“There were three bulges in a bag.”
“And you believe they were sold?”
“They wouldn’t be driving all that way and spending all that time, and then just give them away.”
But charity is exactly what defendant Dung claimed. He said he gave his three abalone to his father-in-law, who very much liked them, and that he himself enjoyed going out diving for them. The four abalone that were in Mr. Bui’s freezer, he said, were also for his father-in-law.
More videos were played, more scurrying around at the Tagging Rock, but nothing definite regarding the defendant, Mr. Dung.
Over the course of the summer this group of Vietnamese, ranging from five to eleven divers, returned to Whiskey Shoals, and by all appearances are following the rules. They were then routinely followed back to Oakland by Secret Agent and various junior secret agents and followed around the city. As many as five wardens made these trips to help with the lengthy investigation.
On June 21st, Secret Agent was back on duty, and this time he said he saw the defendant, Dung Bui, bring two abalone to the surface, measure them (they have to be at least seven inches to be considered legal), and drop them back into the water. This is illegal. The abalone must be reattached to the rocks they were pried from; allowed to drift with the tides, abalone are easy prey. So Secret Agent added these two abalone on to the three Dung Bui took that day, making a total of five.
Unfortunately for the prosecution, there was no video on this day. Secret Agent said that on another occasion he had seen Dung take four abalone from the ocean, and that another “subject” took one from Dung Bui’s float tube — again, there was no video of this, only Secret Agent's observation through a spotting scope from approximately 125 yards away.
On cross-examination defense attorney Faulder asked when the investigation into this group of individuals had begun?”
“In May of 2012.”
“Now, we’ve been talking about when it’s lawful to fill out the tags, and tag the abalone. Do they have to tag their abalone immediately?”
“So they can’t go to their vehicle and change out of the dive suit first?”
“Now, you’ve been abalone diving yourself, so you know what it’s like to fill out these abalone report cards?”
“No. I’ve never taken any abalone.”
“So, you’ve never had to fill out one of these cards?”
“But you’ve seen others do so?”
“Can you see how it would be difficult to fill one out without a hard surface to write on?”
“Yes, it could be.”
“And it can be difficult to get a pen working when you come out of the cold water?”
“And you can see where it would be difficult with cold fingers?”
“It’s not always cold.”
“But it is windy?”
“But if it were windy, wouldn’t the Tagging Rock provide some protection from the wind, wouldn’t it; as well as a hard surface to write on?”
“It provides the perfect place for poachers because it’s secluded from patrol wardens.”
“But it has a hard surface, as well, doesn’t it?”
“A rock has a hard surface, correct.”
“And seeing the same person at the Tagging Rock more than eight times is cause for suspicion, isn’t it?”
“It could be.”
“Why is that?”
“Well, there’s only 24 tags on a abalone fishing license, and the limit is three a day, and eight times three being 24, well… “
“But people can get less than three abalone per day?”
“How many times have you seen my client on the coast?”
“Between five and six — me, personally.”
“Ever see him in switched-up dive gear?”
“So you say you’re looking for people who hurry off the beach; people who come early and leave early; people who rarely go to the same spot?”
“Those are all indicators, correct.”
“But you never saw my client anywhere but Whiskey?”
“And you never saw anyone in my client’s group post a lookout?”
“Did you ever detain anyone in the group?”
“They appeared to be lawful in their take of abalone.”
“You say you saw they had detached tags, so you could have arrested them, couldn’t you, but you didn’t do it?”
“Correct, but that would be considered harsh.”
“Wasn’t it because you didn’t have probable cause?”
“No. I didn’t take action because a large conspiracy was in operation.”
“Did you ever see the illegal transfer of any abalone?”
“Did you ever see the sale of any abalone?”
“You say you saw the subjects altering their abalone report cards.”
“It appeared to be what they were doing.”
“But you didn’t arrest them — that was a conclusion you made at a later date?”
Faulder hammered the witness for two days and the case went to the jury on Thursday afternoon. The primary evidence against Dung was the alleged detached abalone tags being reused and the dates on the abalone report cards being altered.
On Friday, the jury asked to see some of the videos again, and at last rendered their verdict that defendant Dung Bui was guilty of Count 1. Conspiracy to take abalone for commercial purposes; Count 2. The taking of abalone for commercial purposes; Count 3. Possession of abalone for commercial purposes.