On Thursday, federal prosecutors filed an amended civil complaint in the case of the California commercial fisherman who has taken an ocean science buoy from the Monterey Bay into his custody.
As Ars reported on Monday, the fisherman, Daniel Sherer, is the first named defendant in a lawsuit filed last week by federal prosecutors in California.
The way the government sees it, Sherer and his fishing business partner are essentially hostage-takers, as they recovered a loose United States Geological Survey buoy, claimed ownership of it, and now demand $13,000 for its return.For his part, Sherer claims that he merely wants adequate compensation for losses he says were caused by the buoy, which popped up out of the ocean in January 2016 and got tangled up in his boat’s propellers.
As a result, his boat was out of commission for about four days. “I have no problem giving it back tomorrow—I have no problem giving it back today,” Sherer told Ars earlier this week. “Just understand that you guys need to compensate us something. We’ve lost in this deal.”
He did not respond to Ars’ request for comment following the newly amended complaint.
The Thursday complaint contains two noticeable revisions, with the first being a reference to the fact that Sherer essentially doubled down in his position to Ars.
As the government writes in the Thursday complaint: “As a result of attorney Sherer’s actions as aforesaid, and his participation in Defendants’ wrongful and continuing tortious actions, the crime-fraud exception to any purported attorney-client privilege is applicable and hereby invoked.”
The “crime-fraud exception” is essentially a provision to the classic attorney-client privilege exempting conversations that continue to illuminate an ongoing tortuous or criminal action—in this case, the taking of a government buoy.
The second addition to the government’s complaint is an additional action of “trespass to chattels,” an allegation of an unauthorized possession of property. “Subsequent to having intentionally and physically taken possession and claimed ownership of Scientific Mooring MS1, and as a result of Defendants’ negligence, gross negligence, willful misconduct, and other acts and omissions with respect to its handling, care and preservation, Scientific Mooring MS1, including, but not limited to, its scientific instruments, data, and samples, has been damaged and/or destroyed, thereby causing damages and harm to the United States, due to Defendants’ wrongful acts of possession and claimed ownership,” according to the amended complaint.
“The Department of Justice lets what it files in court speak for itself and otherwise we do not provide comment,” R. Michael Underhill, a government lawyer, told Ars.