State v. Tobin

132 Wash. App. 161
CourtCourt of Appeals of Washington
DecidedMarch 21, 2006
DocketNos. 31636-6-II; 31646-3-II
StatusPublished
Cited by13 cases

This text of 132 Wash. App. 161 (State v. Tobin) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tobin, 132 Wash. App. 161 (Wash. Ct. App. 2006).

Opinion

Armstrong, J.

¶1 Douglas John Martin Tobin appeals the superior court’s restitution order against him for stealing crabs and geoducks from the state of Washington and Native American Tribes. He argues that (1) the declarations the expert used to estimate damages failed to meet the requirements of RCW 9A.72.085, (2) the expert did not assess damages with reasonable certainty, (3) the investigative and administrative costs the court included in the order were not sufficiently related to Tobin’s criminal activity, and (4) the State had no interest in the geoducks and should not have been awarded restitution for them. We affirm, holding that Tobin waived any technical defect in the declarations; that the State proved damages with reasonable certainty; that the State was entitled to recover its investigative and administrative costs; and that the court properly awarded restitution to the State, to be allocated by agreement with the Native American Tribes.

FACTS

¶2 In 2002, authorities charged Douglas John Martin Tobin with 1 count of leading organized crime; 10 counts of first degree trafficking in stolen property; 27 counts of first degree theft; and 1 count of first degree conspiracy to commit theft. These charges concerned the illegal harvest [165]*165and sale of geoducks from January 2000 to March 2002 (the geoduck case1).

¶3 Soon after, authorities charged Tobin by second amended information with 33 counts of first degree violation of commercial area or time; 33 counts of unlawful trafficking in fish or wildlife; 1 count of first degree engaging in fish dealing activity unlicensed; 1 count of first degree commercial fishing without a license; and 33 counts of failure to report commercial fish, shellfish harvest, or delivery. These charges concerned the illegal harvest and sale of crabs from June 1, 2000, to February 5, 2002 (the crab case2).

¶4 Tobin pleaded guilty to first degree theft in the geoduck case. In exchange, the State dropped the remaining 38 counts and informed Tobin that it would seek an exceptional sentence and request $1.2 million in restitution. Tobin also pleaded guilty to various charges in the crab case. The State advised him it would request an exceptional sentence and seek $300,000 in restitution.

¶5 At the restitution hearing, the State sought restitution for 196,412 pounds of geoducks; $15,000 for the expense of hiring an extra secretary half-time in order to manage the evidence; $47,000 for the forensic accountant; and $70,000 for the resurvey of the illegally harvested tracts. The State argued that these costs were a direct result of Tobin’s actions. In the crab case, the State sought $198,305.20 for 72,594 pounds of crab. The State also requested costs of $42,000 for three patrol vessels that had to go out and look for crab pots that were on the bottom of the Puget Sound in the Nisqually area, and $7,500 for the screen radon, which was used to locate the pots.

¶6 At the restitution hearing, the trial court heard arguments from the parties, but it took no testimony. Instead, it considered the State’s memorandum regarding restitution, which included the declarations of (1) Detective [166]*166Edward Volz of the Washington Department of Fish and Wildlife (WDFW); (2) Kevin Harrington, also a WDFW detective; (3) William Omaits, a forensic accountant; (4) Bob Sizemore, a WDFW biologist; and (5) Wayne Palsson, a WDFW research scientist. The court also considered Tobin’s memorandum and two supplemental memoranda on restitution, as well as a declaration response to the declaration of Ian Child, and a declaration from Jeff Abulet, co-owner of Clear Bay Seafoods. Tobin did not object to the State’s declarations.

¶7 The court adopted Omaits’s calculations and found that the loss to the State for the value of the geoducks was $764,408.40. It also found that Tobin was responsible for $198,305.20, the value that he received for the crab. And the court found the various investigation and administrative damages to be $15,000; $30,000; $70,000; $42,000; and $7,500.

¶8 Accordingly, the court ordered $879,408.40 in restitution in the geoduck case, with the funds to be distributed to the State, to be allocated by agreement among the State and the Nisqually, Squaxin, and Puyallup Indian Tribes. The court ordered $247,803 in restitution in the crab case, with the funds to be allocated by agreement between the State and the Nisqually Indian Tribe.

¶9 We have consolidated the cases on appeal.

I. The Geoduck Case

¶10 Tobin ran a fishing organization that illegally harvested geoduck clams belonging to the state of Washington and the Puyallup, Nisqually, and Squaxin Indian Tribes. As a harvester and seller of shellfish, Tobin was required to fill out a fish ticket each time he harvested geoducks. Fish tickets must be filed with the WDFW, which then uses the information from the fish tickets to manage the resource, to set seasons, and to establish quotas. Tobin did not file any fish tickets on the geoducks he harvested.

¶11 Tobin and his employees did all of the illegal harvesting at night to avoid being detected by authorities. [167]*167After harvesting the clams, Tobin transported them to his packing plant, Toulok Seafoods, in Fife, Washington. Then he sold the stolen clams to various shellfish processors in Canada, California, and Washington.

¶12 Tobin employed many people in his organization, including divers, packers, and a pilot for the boat. Xiang (Jack) Li, owner of Five Oceans and Daisun, acted as a middle man and paid cash for the geoducks, which he shipped to processors in California during the period of June 10, 2001, to March 18, 2002. 1 Clerk’s Papers (CP) 21. Toulok’s invoices to Daisun corroborate Li’s purchases from Toulok. Li stated that after December 2, 2001, Tobin began to send invoices directly to Ocean Harvesters for the product that Li purchased from Tobin. Carl Chau, owner of Ocean Harvester, claims he made payments for the geoducks by making direct deposits into Li’s bank accounts. Ocean Harvester’s records and witness statements corroborate his claims.

¶13 Agents from the WDFW served a search warrant on Tobin’s business, Toulok, and after reviewing the documents they seized, they determined the location where he sold the illegal geoducks. Then the agents obtained search warrants for the named seafood and shellfish outlets and served the warrants on those businesses. Using the documents they seized, including air bills, invoices, fish tickets, checks, and deposits, the agents determined the amount of geoducks illegally harvested and sold by Tobin from January 2000 through March 18, 2002.

II. The Crab Case

¶14 In June 2000, the WDFW received complaints from several citizens that a large commercial fishing boat was taking crab from the Nisqually Delta area. At the time, the State did not allow commercial crab harvesting below the Tacoma Narrows Bridge. The Nisqually Delta area is “within the Usual and Accustomed Fishing Grounds of the Nisqually Indian Tribe.” CP (Aug. 27, 2004) at 153. The [168]*168Nisqually Tribe, however, had no commercial crab season. Citizen complaints described a large boat named Typhoon, which WDFW detectives knew Tobin owned. CP (Aug. 27, 2004) at 153.

¶15 After putting the Typhoon

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Cite This Page — Counsel Stack

Bluebook (online)
132 Wash. App. 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tobin-washctapp-2006.