Tuna Fisherman’s Defense Attorney Files Brief for Firing WWII Rifle at Pilot Whale

NEWARK – Tuna fisherman Daniel Archibald’s defense attorney William Hughes Jr. was mum Oct. 9 after filing a brief in U.S. District Court here before Magistrate Judge Kathy Waldor in the government’s case against Archibald for shooting at a pilot whale in 2011.
“I can’t say anything more than the submissions we made to the court,” said Hughes in response to a Herald inquiry.
The case became public February when U.S. Attorney Paul J. Fishman announced in a release that Archibald, 27, of Lower Township, had surrendered to U.S. Marshals Feb. 19 for allegedly firing at pilot whales off the state’s coast.
If convicted of the violation Archibald could face a maximum penalty of one year in prison and a statutory maximum fine of $100,000 or twice the gross gain or loss resulting from the offense.
Fishman stated, “Technology, by means of a vessel location monitoring device, and Facebook postings were used in the investigation.”
As a result, Archibald was charged by complaint with one count of violating the Marine Mammal Protection Act of 1972. He appeared in Newark federal court before U.S. Magistrate Judge James B. Clark III, and was released on $10,000 unsecured bond, with travel restricted to the United States, except for fishing in international waters.
Archibald was required to surrender all firearms and firearms purchaser identification cards and is prohibited from using or possessing a firearm on land or sea.
As reported in February, Hughes stated, “I question the judgment (of the government) given the state of the law, particularly with regard to commercial fishing operations. This is a tremendous waste of resources yet again, regulators coming down heavy-handed on commercial fishermen who are just trying to make a living.”
Archibald was aboard the fishing vessel Capt. Bob when the alleged incident occurred. The vessel is licensed for Atlantic long-line tuna fishing, Hughes said. He added it is routine for such vessels to have firearms aboard in the event a shark is hooked. “Are you going to take the line out of a shark’s mouth?” he said.
According to the complaint unsealed Feb. 19:
Archibald allegedly shot at pilot whales while aboard the fishing vessel “Capt Bob.” Pilot whales are protected under the Marine Mammal Protection Act of 1972, a statute that prohibits the hunting, killing, capture or harassment of any marine mammal. Harassment under the statute includes any act of pursuit, torment or annoyance that has the potential to injure a marine mammal in the wild.
On Sept. 24, 2011, an 11-foot, 740-pound pilot whale beached itself in Allenhurst, Monmouth County, and died shortly thereafter. A necropsy uncovered a .30 caliber bullet lodged in the whale’s jaw. The bullet wound triggered an extensive infection that caused the whale to starve to death a month later.
Review of the Capt Bob’s vessel monitoring system confirmed that it was in New Jersey fishing waters for much of August 2011, the approximate time that the whale was shot. Also, nearly a month before the pilot whale washed ashore, Archibald posted a Facebook photograph of a tuna head on a hook with the caption “thanks a lot pilot whales.”
According to the complaint, the agent also “saw, on or about Nov. 18, 2011, that Archibald posted to Facebook a photo of a case containing what appeared to be many rounds of large caliber rifle ammunition, with the caption “let’s make some noise.” The ammunition appeared to be consistent with .30 caliber casings.”
On or about Sept. 7, 2014, NOAA-OLE special agents searched the Capt. Bob and found three firearms, including a Mosin-Nagant, a World War II rifle, issued to the Russian infantry, which has not been manufactured in several decades. Also found were 10 cartridges for that rifle.
Analysis done “at the Forensic Science Laboratory of the Bureau of Alcohol, Tobacco, Firearms and Explosives test-fired the Mosin-Nagant and determined that it was functioning as expected. They also compared the bullet found in the pilot whale with the test bullets fired from the Mosin-Nagant. It was similar in all general rifling characteristics to the Mosin-Nagant.
 “ATF firearms trace records also revealed that the Mosin-Nagant had been purchased by a person of the same name and address as …Archibald at a New Jersey firearms dealer in April 2011,” according to the complaint.
When interviewed by special agents, Archibald “stated that he had been a member of the vessel’s crew for the past five or six years and that the three firearms found onboard the boat, including the Mosin-Nagant, belonged to him. He admitted that he shot at pilot whales with the Mosin-Nagant around the time the pilot whale had been shot, in or about August 2011. Archibald admitted that he had “spray(ed)” bullets at pilot whales in an effort to chase them away and that at times the whales might have been close to the Capt. Bob,” the complaint continued.
The charges and allegations contained in the complaint are merely accusations, and the defendant is considered innocent unless and until proven guilty.