ESCANABA - After four days of testimony, a jury found three Garden Peninsula men guilty of conspiracy to buy/sell fish taken without a commercial fishing license.
Brothers Troy and Wade Jensen, and John Earl Halvorson were found guilty by a jury of three men and two women Friday afternoon. The Jensens are tribal-licensed commercial fishermen and members of the Sault Ste. Marie Tribe of Chippewa Indians. Halverson is a non-native.
The three men were accused of making a deal with one another and three Rapid River brothers and tribe menbers - Andy, Kevin and John Schwartz - to buy/sell fish caught with subsistence gill nets and selling the fish to Big Bay de Noc Fisheries in Garden.
The jury received the case for deliberation at 1:47 p.m. returning with a verdict just more than two hours later at 4:03 p.m.
The verdict was unanimous. Defense Attorney Elizabeth LaCosse requested a polling of the jury after the verdict was announced. LaCosse and fellow defense attorney Karl Numinen had no comment regarding the outcome of the case against their clients who remain free on bond.
The prosecution wrapped up its case Friday morning, leaving the defense to present its case.
Numinen, representing the Jensen brothers, did not call any witnesses to the stand. LaCosse called on Halvorson to testify Friday morning.
In his testimony, Halvorson said he new the Jensen brothers, and was also friends with Andrew Schwartz of Rapid River, who is also a member of the Sault Tribe of Chippewa Indians.
Halvorson said he is a lifelong resident of Garden, and had worked at Bay De Noc Fisheries several years ago when he was younger.
When asked if he ever went out with Andy Schwartz while he was subsistence fishing, Halvorson said he had been out on the ice before with Schwartz.
"I knew Andy was fishing, and I also knew that I couldn't touch the nets he was using, as I am not a member of the Sault Tribe, but I could watch as he lifted the nets out of the water," said Halvorson.
When asked by LaCosse if he had ever seen 1,000 fish taken from any of Schwartzes' nets, Halvorson said no, as fish tend to be dormant during the winter months. He also testified there were specific nets used for each species of fish being sought.
"At times I was offered some fish fillets, which I accepted, however I never received any large amount of walleye from Andy," said Halvorson.
Halvorson testified that he was not involved in the conspiracy and that he had never seen any of the Schwartzes give the Jensen brothers any fish.
"I have no knowledge of any discussion concerning the sale of fish taken through subsistence fishing," testified Halvorson.
He further testified that on Feb. 23, 2009, he and Andy Schwartz noticed a lot of foot traffic and other traffic signs near the shanty being used by Andy.
"The nets were twisted with a lot of rips in them, and there weren't many fish in them," said Halvorson.
He also testified that anglers know their own knots.
Under cross examination by Parks, Halvorson testified he was not aware that Andy Schwartz was violating the law by having two nets in the water, and that they could not be tied together.
Parks also questioned Halvorson if he ever ate suckers, carp or lawyers, commonly referred to as junk or garbage fish.
Halvorson said he had eaten suckers, carp and lawyers when he was a child, but not as an adult.
When asked if ever ate northern pike, Halvorson said he has, saying it was a good fish to eat when it was taken from cold water, like during the winter months.
With no further witnesses being called either by LaCosse or rebuttal witnesses by Parks, closing arguments were presented to the jury.
In making his closing arguments, Parks said the jury could infer from the evidence and testimony presented that the three men had conspired to illegally sell fish taken from Little Bay de Noc without a commercial license.
Parks said that up until Feb. 24, when the nets were seized by the DNR, more than 9,000 pounds of walleye were moved by the defendants.
"After the nets were seized, there were no more sales recorded," said Parks.
He also presented an outline of the case showing dates when there was activity conducted by the DNR concerning surveillance of the Schwartzes' fishing activities, as well as the movements of the Jensen brothers and their interactions with Halvorson.
"Testimony was given from Cpl. Shannon VanPatten presenting a timeline of events from Feb. 17 through Feb. 24 when the nets were seized," said Parks. "During this time several thousand pounds of walleye was delivered to Bay de Noc Fisheries, with four checks being issued totalling $19,000."
Parks said that testimony presented in the case also reflected 776 pounds of walleye being sold on Feb. 20, and that on Feb. 23, microchips were inserted into some of the walleye in Schwartzes net, which were discovered within 265 pounds of walleye sold to Bay de Noc Fisheries. It was the discovery of the micro-chipped walleye which led to the arrest and charges sought against the Schwartz and Jensen brothers, and Halvorson.
"These defendants have had a long time to discuss this case and to get their ducks in a row," said Parks. "Andy Schwartz said he knew he was cheating by using a second net, now it is up to you as a jury to determine if you want to believe his testimony."
Numinen, in presenting his closing argument, said the prosecution case was based upon circumstantial evidence, and there was no direct evidence of an agreement having been made.
"The DNR officers testified they pulled the nets out of the water, they microchipped 20 walleye and put the nets back," said Numinen. "When the Schwartzes arrived they knew immediately that something was fishy. They testified that the fish were taken. The chain of custody was broken giving rise to the theory that the evidence could have been planted."
Numinen also said if there was an agreement that could support the prosecution's claim then what were the terms of the agreement? How much money would each person receive? What was the agreed upon amount of fish to be taken?
LaCosse in her closing said the prosecution's case was a fairy tale and there was no agreement to sell fish in violation of the law.
LaCosse said that there was a huge amount of evidence missing from the prosecution's case, and while an inference can be made from circumstantial evidence, facts are still necessary.
"The prosecution's case is based upon innuendo and speculation," said LaCosse. "Even during direct testimony, the DNR admitted that it was impossible for the nets being used to catch 3,000 pounds of fish."
LaCosse agreed with Numinen that there was no evidence of a conspiracy and that evidence in the case was severely lacking.
