U.S. vs. JOHN CUSICK: Mariner Criminally Prosecuted & Convicted for Shipboard Sexual Harassment of a Federal Fisheries Observer

UNITED STATES OF AMERICA vs. JOHN CUSICK

New York, NY

By: MLAA

The Magnuson-Stevens Fishery Conservation and Management Act makes it a federal crime to “to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any [fisheries] observer on a vessel under this chapter, or any data collector employed by the National Marine Fisheries Service or under contract to any person to carry out responsibilities under this chapter…”

In the only known case of the U.S. Department of Justice bringing federal criminal charges against a mariner for “sexual harassment,” in 2011 the DOJ charged John Cusick with 2 criminal counts related to his behavior towards a NOAA fisheries observer.

Count 1 charged that Cusick, while working as a crew member on a fishing vessel during the period July 8th to July 14th, 2010, violated the law by forcibly assaulting, impeding, intimidating, sexually harassing, and interfering with Tamara Bryant, a fisheries data collector.

Count 2 charged that the Cusick again violated the law on July 15, 2010 when he hugged Ms. Bryant without consent and inserted his tongue into her ear.

After a trial, a jury convicted Cusick on Count 1 and found him not guilty on Count 2. The conviction is remarkable because it is one of the only known successful prosecutions of an American crew member for sexual misconduct committed at sea aboard a commercial vessel, and also because the crime involved “sexual harassment,” which is not criminalized in any other context within American maritime law aside from the Magnuson-Stevens Fishery Conservation and Management Act.

MLAA here presents the opening statements of the Prosecution and Defense. A complete trial transcript of the United States of America vs. John Cusick may be found here:

Prosecution Opening Statement:

Suzanne M. Sullivan, Assistant U.S. Attorney:

“Tamara Bryant was simply trying to do her job. She was employed as what is known as a federal at-sea monitor, essentially, a data collector, and her job responsibilities included working on federally permitted commercial fishing boats and counting -- and calculating the data of the fish and the types and the amounts that were caught by the fisherman working on that boat…

On July 8, 2010, the Sea Farmer II left port in Gloucester, Massachusetts…Also, on board that boat was the captain, a man named Clark Sandler, and three crew members: the defendant, John Cusick, a man by the name of Pete Cusenza, and a man by the name of Paul Beal.

The first person that Tamara Bryant encountered when she went on board that boat was this man, the defendant, and the first words that he said to her before he even left port was that she was the first female observer that they had on that boat, and that we were gonna have a fun time during the course of that trip or words to that effect…The evidence will show that Ms. Bryant was the only female on board that boat and the only minority aboard that boat; the remainder of the individuals were men who had worked together previously.

The various comments made to Ms. Bryant during the course of this trip by this man, the defendant, I would suggest to you are going to include that he wanted to suck on her toes, that he wanted a pair of her panties, that he would rather see her in her birthday suit, which would be naked, that he was calling her and referring to her as a pancake, as Aunt Jemima, as an individual he wanted to pour syrup all over, that he had sucked on her personal washcloth and soap.

He asked to shower with her. He told her that there was no lock on the bathroom door. He indicated to her that even if it takes a week, a month, or a year, I always get what I want. He made gestures to her including a V-shape with his finger and putting his tongue through it. He told her that he wanted to spank her ass. He commented on more than one occasion on how large her butt was, and I would suggest to you that the evidence will show that Ms. Bryant changed how and where she performed her duties on that approximately 60-foot boat because of what the defendant said, because of what the defendant did, and because of the defendant's actions and gestures towards her throughout this trip.

At some point in time she started walking backwards out of certain areas so that the defendant would not have access to observe her back side, and this was because of what the defendant said to her and how he treated her. He made comments to her about the fact that she was wearing a sports bra underneath her clothing when she was out on deck performing her job duties. He referenced that he thought that her nipples were hard, and he made comments to her about what he believed how she acted or behaved in the bedroom in terms of perceptual actions, and he said:

‘Once you've experienced a piece of me, you won't want anyone else.’

He tried to give her a handshake and prevented her from being able to get past him unless and until she shook his hand, and so the evidence will show that she did that, and that he made a sexual gesture in her hand with his own hand in hers.

And on the second to last day of this trip, ladies and gentlemen, Ms. Bryant presented the defendant with what is known as a harassment notice. She showed it to him, and in it the evidence will show or the government expects that it's going to show -- we're going to produce a copy of it as an exhibit during this trial, but in it it specifically says that he is prohibited from doing these actions and activities.

And what was the defendant's reaction and response when Ms. Bryant showed him that? He laughed. He then took it up to the wheelhouse to the captain, and he came down a short time later, and he was still laughing. That's what he thought of what she presented to him.

Now, ladies and gentlemen, just to be clear, the first count in this indictment alleges the activities and the actions, the behaviors of the defendant from the first day until the second to last day. And separate and aside from that is the second count, and the second count alleges what the defendant did to the alleged victim in this case on the last day of this trip at about 6:45 in the morning when she was assaulted by the defendant. The pattern of the defendant's behavior, the evidence will show, continued throughout this trial -- I mean, throughout this trip.

One of the responsibilities that Ms. Bryant had was to document notes about the hauls with the fish that were being brought in and the types of fish, and she did that in the general area of the galley table in the kitchen, and the evidence will show that the crew members, outside of the captain, and Ms. Bryant shared a lot of meals together.

A lot of these comments that were made to Ms. Bryant were made in the course of the galley area and outside of her bunk room or on the deck.

Relative to Count 2 in this indictment, ladies and gentlemen, the evidence will show that on the last morning of the trip Ms. Bryant, who was fully clothed when she went to bed, she wanted to get off that boat as quickly as possible and get a ride to port.

She had packed all of her belongings, and she was ready to go but just before -- just when that boat went into port here in Boston, Massachusetts, Ms. Bryant had a conversation with two individuals. One of them was Pete Cusenza, one of the crew members who she was closest to on this boat. In addition, the evidence will show that she did not know any of these men prior to going on the trip in July of 2010.

Mr. Cusenza was not alone when he went to the bunk room of Ms. Bryant. He went to say goodbye to her. He's with the defendant John Cusick. Mr. Cusick didn't say goodbye to Ms. Bryant. What he did when he walked in is he told her that he wanted to hook up. She told him no, and she told him that that would not be appropriate; but just like with the harassment notice, he wouldn't listen, the defendant, from stopping, and from not doing that, and against her will—he hugged her.

She will tell you how the hug happened. She will tell you that she tried to push him away; that's the evidence in this case, and she will also tell you in addition to hugging her, John Cusick then proceeded to put his tongue in her ear, flicking his tongue in her ear. She told him to stop.

The evidence will show that as a result of all of the behaviors, the actions, the activities, the gestures, and the actions of John Cusick, Tamara Bryant and her ability to do her job on board that boat was impeded and interfered with.

Shortly after getting -- this occurred on the last day of the trip. When she was finally able to push away from the defendant, Ms. Bryant ran out and off that boat. She ran out to find out if her friend was there to pick her up; and when she saw that her friend was, she went and grabbed her items, and she actually brought them out of the wheelhouse so she would avoid contact with the defendant, and the wheelhouse is where the captain is during the course of the trip, so that's where the captain is generally working. John Cusick threatened Ms. Bryant by his behaviors and his actions; he sexually harassed her throughout the entire trip, and he impaired her ability to do her job, he interfered with her ability to do her job; and on the last day of the trip, he committed forcible assault on her.

The government expects to show to you photos. You will see them and have an opportunity to look at them; and as Judge Sorokin indicated to you, the credibility of the witnesses is for you to collectively decide. It is up to you to decide who and what to believe…”

Defense Opening Statement:

Timothy G. Watkins , U.S. Public Defender

“Good morning, jurors. John Cusick was a class clown on the Sea Farmer II. The captain had worked with him for a couple of years, knew that, but by the fourth day of the trip, the day before they were to come into port, the newest crew member, Pete Cusenza, and Tamara Bryant, the observer, both learned that he could say almost anything and do almost anything and joke around.

On that day, the day before they came, in true clown fashion, Jack took this NOAA notice and took it from Tamara Bryant and went to his captain. He thought he was playing a big joke on the captain: Look what she gave me. Look what's going on; and as you can imagine -- well, maybe you don't have to imagine. You're going to hear the captain didn't take it as a joke at all. There was an exchange between Jack and the captain about why that notice was given or what's going on here because the captain was quite concerned, and you'll hear about the exchange that happened on that.

Because the captain was quite concerned, he didn't take it as a joke at all. What he did was leave Jack up in the wheelhouse to keep drive of the boat, and he went right downstairs to Tamara Bryant to ask her what was going on. You know, what's up with this note?

When he went down to Tamara directly and asked her a series couple of questions. The first here? The answer Tamara Bryant gave was, “No, there's not a problem here.”

Captain Sandler persisted because it's his boat and he's responsible. What Captain Sandler asked her then is: “Is Jack bothering you?” Tamara Bryant didn't say: Yeah, he's bothering me. She didn't say: Yeah, he's been harassing me for three days. She didn't say: Yes, you have to stop it, tell him to stop it, get him to stop bothering me.

What she said when Captain Sandler asked her, is Jack bothering you: “Doesn't he bother everybody?” That exchange with that NOAA notice is going to be a theme that you hear throughout the trial because you're going to hear that that's true. Jack does bother everyone.

You'll hear from the crew members, from Ms. Bryant, about his antics, some of the things that he likes to do, jokes he likes to play, things he thinks are funny that perhaps other people do not, and he's capable of doing it in a pretty crude way. You know, he's got -- you'll hear a description that he has really no filter between his brain and his mouth when he's on deck and when he's talking.

So a lot of these comments you're going to hear are really, really crude. Depending on your tolerance level, you would think even disgusting, so that is certainly something that Jack's capable of and is capable of bothering people.

The second thing you're going to hear from that exchange that gets repeated is Tamara Bryant's lack of reaction. I think what you're going to hear throughout trial is she never confronts Jack and says: No, stop doing this. I don't like it. It's disgusting, and you gotta stop now.

I don't think you're actually going to hear that ever during trial. In fact, you're going to hear the opposite, that Tamara kind of joked around or laughed at some of these things, maybe even did some things that would indicate she condoned it for better or worse, but that's what you're going to hear during trial is that this is not this kind of constant barrage where somebody saying: Stop, stop, stop, and someone keeps blasting through the stop signs, and really it wasn't until she got off the boat that anybody realized the depth of her reactions or anybody outside of Ms. Bryant herself. Certainly, the captain didn't understand it, and the crew members -- or at least one of the crews members certainly did not understand the depth of her reactions and her feelings there.

The third theme you're going to hear from that exchange repeated throughout is that this is really a case about verbal bothering. With the exception of the last hug that Ms. Sullivan described, there's no indication that there's physical contact or even kind of attempted physical contact.

You're not going to hear about grabbing of body parts or slapping people alongside; there is really no physical contact at all. So while it is disgusting language, it is in essence language certainly up until that very last hug there. So it's not the kind of case that you're going to hear constant physical incidents happen. Really, there's none of that, none of that's going to be in this trial at all, and that's really what is at the heart of this case.

This is a criminal case. As Judge Sorokin told you, it's different from a civil case, particularly different in what the government has to prove. It can't just prove that the comments were disgusting or unwanted; they're going to have to show that Jack understood, really knew that they were unwelcome, unwanted, and that he did that with the intent, he continued on with the intent to somehow impede her from her job or intimidate her or some kind of nefarious intent there.

So, particularly, as to Count 1, they're going to have to show that he forcibly sexually assaulted Tamara Bryant; and you're going to hear that there weren't any physical acts as far as Count 1 other than incidental conduct that went on during the time on the deck, so I think that's one of the things that you may struggle with as you listen to the evidence. I would like you to listen about where that forcible sexual harassment is.

And Count 2 concerning the hug, I want you to think about what the context of that was, what was going on in the time leading up to that, whether again there was some kind of intent to forcibly assault ... because it's not just hug. A hug's not going to do it; it's gotta be a forcible assault on her, and, again, it's got to be with these other kinds of issues, whether he had impeded her, somehow intimidated her, and whether he knew that that's what he was doing by committing that kind of act.

So these are some of the things that are going to be going on during this trial; it's not really just listening to who said what, but, honestly, there's not going to be a heck of a lot of dispute about the things that were said. They were said, and, again, crude; no doubt about it. Disgusting, no doubt about it. Things that most of us wouldn't say in polite company, and probably most of us would never say in any kind of company.

And, again, that's not going to be the issue during trial; it's certainly not going to be disputed. It's whether, and, certainly -- well, while these things happened, context is everything, right?

Ms. Sullivan has talked about a number of statements that were made. Again, most of them, if not all of them, are not going to be in issue, but it is all about context, and you're going to hear a lot more about what was going on.

This galley where they eat meals is also where the crew hung out; and, indeed, they did hang out there. Pete Cusenza, Jack, and Tamara Bryant, for sometimes long periods of time. It was not this constant harassment kind of thing. They talked about their personal lives. They talked about things they did. They talked about the weather. I mean, they talked about all the things we talk about, when, when we have long periods of time with really very little to do and with people we don't know very well, and we start to get to know them.

So you're also going to hear during trial how difficult really the job of fishing is. It's noisy, and it's very smelly, and it's risky, and sometimes it can be very boring. Crew men spend four or five hours loading, uploading fish, and doing all kinds of really mundane and kind of dirty kinds of tasks on the boat, and it takes a certain kind of character to want to do this kind of job and a certain kind of character, sometimes with character flaws. People perhaps are capable of misperceiving social signals, for example, but all kinds of faults, and not everybody wants to do this kind of work working on this very difficult kind of fishing boat.

So those are a couple of the things that you are going to hear, so I do want you to focus on the context because there's not going to be that much dispute, and think about all the things that were going on with the boat, and think of all the personalities involved, and what exactly happened, who told who to stop, and what was said, what the context was, whether there were other people around; and as you focus on the context and really everything that was going on on the boat, you want to ask yourself about the statute that you're going to have to decide this under, and, that is, did Jack Cusick know he was creating some kind of hostile environment for Tamara Bryant?

Did he intend for that to happen? Did he intend to impede her from her job, stop her from doing the job? Was it his desire to intimidate her? Did he have in his mind that he wanted to scare her, or is this a case of really a class clown, to make very boorish kinds of comments, and sometimes be inappropriate, but at the end just a class clown.

I'm confident that after you've had the opportunity to listen to all of the evidence and think about what the government has to prove, the answer to that question will be pretty clear. I'll be justified in coming before you and asking for a verdict of not guilty as to Count 1 and not guilty as to Count 2.