Guilty Deputies in Lobster Case May Face Punishment by Department

Four sheriff’s deputies who pleaded guilty this week to taking undersized lobsters from the waters off La Jolla Cove still face the judgment of the Sheriff’s Department.

“It’s not over for these four men yet,” Deputy City Atty. Elmer Heap said Tuesday. “They will be punished internally by the Sheriff’s Department. There’s no doubt.”

After pleading guilty in Municipal Court Monday to one misdemeanor count, each deputy was fined $200 and given three years’ informal probation as part of a bargain arranged with the city attorney’s office. Twelve additional counts against each deputy were dismissed.

Unresolved Question

One question yet to be resolved is whether the four members of the sheriff’s elite Special Enforcement Division--Russ Moore, 30; Charles F. Wagner, 36; John A. Pokorny, 37, and Thomas D. Drake, 38--were on duty the night they were apprehended.

“They had obtained permission to go out on a night dive,” said Sheriff’s Sgt. Bob Takeshta. “Internal Affairs will be investigating whether the lobsters were trapped after the conclusion of the dive or during the course of the dive.”

Takeshta acknowledged that the deputies were using Sheriff’s Department equipment--including a 14-foot boat, boat trailer and vehicle--when they were arrested.

Takeshta said Sheriff’s Department internal affairs investigators are still conducting their inquiry into the incident and will probably not release their findings. Any punishment meted out will remain confidential unless the deputies choose to challenge it, he said.

The four deputies were stopped Oct. 14 by state Fish and Game Warden Michael Castleton after they came ashore around midnight. On board were 13 lobsters under the length of 3 inches from the back of the eye socket to the point where the body meets the tail--a misdemeanor offense.

Each was charged with 13 counts of possessing an undersized lobster, and each count carried a potential maximum penalty of a $1,000 fine and 6 months in prison, according to the prosecutor.

But, Heap said, “Someone could be in possession of 50 (undersized) lobsters and we would never ask for custody, unless it was incredibly egregious.” However, second or third time offenders would stand a chance of being jailed, he said.

Heap said he has already heard from two disgruntled commercial lobster fishermen and acknowledged that some people may not be pleased with the disposition of the case.

“Arguments can be made that they should be held to a higher standard, that as police officers they owe the public something,” Heap said. “We chose to treat them as ordinary citizens and fined them as if they were simply citizens who broke the law.”

Heap added that if the prosecution had been able to prove the deputies were actually poaching, the charges would have been far more serious.

“They were in an area where there were many commercial lobster traps, and it seems reasonable that they may have been taken from the traps,” Heap said. “But there was no one down there diving with these deputies at the time, and we don’t know for sure. We would have to convince a jury beyond a reasonable doubt that that’s what happened, and we just didn’t have the evidence.”

However, defense attorney James Pokorny denied that the deputies were poaching. “There were some allegations that poaching was involved and there are absolutely no facts whatsoever to substantiate this,” he said.

Pokorny said that published reports that the men were out in a boat with no lights were also untrue. “The allusion is that they had no lights, therefore they must have been up to something, and therefore they must have been poaching.”

Pokorny, who is a brother of Deputy Pokorny, said that during the dive one of the men became severely seasick. “The other deputies came to his assistance and paid more attention to him than they did the lobsters,” he said. “They simply tossed the lobsters on the boat and took them ashore.”

Pokorny said he personally measured the 13 lobsters--which were frozen and kept as evidence--and found that nine of them were within one-eighth of an inch to one-quarter of an inch of the legal size. “I just think it’s sad the whole thing happened when they were so close to the limit,” he said.