October 26, 2017 — BOSTON — A Massachusetts sheriff’s office captain has been indicted on charges he helped a fishing magnate known as The Codfather smuggle profits of an illegal fishing scheme to Portugal.
The U.S. attorney’s office for Massachusetts says Jamie Melo was indicted by a federal grand jury on Wednesday on charges of bulk cash smuggling, structuring and conspiracy. The Bristol County sheriff’s office captain was arrested in August.
WASHINGTON (Saving Seafood) — October 11, 2017 — Judge William G. Young of the U.S. District Court, District of Massachusetts, has released his order on the question of forfeiture in the Carlos Rafael case.
The judge ordered Mr. Rafael to forfeit his 50 percent interest in four vessels in which his ownership stake is appraised at $2.2 million, and his half interest in 4 permits with 34 endorsements. The government had sought forfeiture of Mr. Rafael’s interest in 13 vessels. In the “Memorandum and Order Concerning Forfeiture” the judge outlined the Constitutional issues, case law, and sentencing guidelines limiting the magnitude of the forfeiture, stating “the government erroneously seeks to multiply the maximum fine by each of twenty-three counts of conviction for violations of the Lacey Act. That’s not how the guidelines work.”
He stated “a forfeiture sanction of $2,000,000+ in assets accords well with Rafael’s suggested $2,800,000 cash forfeiture. Rafael, of course, would agree to this cash forfeiture in a last ditch effort to save his fleet entire and, apparently, sell it as a whole. The government will not agree- it seeks the forfeiture of actual Vessels and Permits.”
He also noted that he “stayed away from the ‘Athena’ and the ‘Hera II’ because they have scalloping permits and scalloping is not involved in this wrong doing.”
The following summary is taken from the text of the order. The full order is available here.
The government sought forfeiture of 13 fishing vessels and permits.
Rafael owns the “Athena” outright and has a one—half interest in the remainder of the fleet. Based on the current market, the estimated gross value of the Vessels and Permits is approximately $30,000,000 and there are approximately $2,000,000 to $3,000,000 in liens and attachments on the Vessels and Permits, reducing the value of the Vessels and Permits to approximately $27,000,000 – $28,000,000.
The relevant statute mandates forfeiture.
Because Rafael violated the Lacey Act, and conspired to violate the Act, this Court must order forfeiture to the extent permitted by the Constitution.
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The court found:
1. Rafael falls into the class of persons to which the criminal statute was principally directed.
2. The requested forfeiture would not deprive Rafael of his livelihood.
3. The harm caused by the defendant was substantial.
After carefully calculating the sentencing guidelines as required by law, the Court derived a guideline range of not less than 51 nor more than 63 months imprisonment, a fine range of $20,000-$200,000, restitution of $108,929 supervised release from one to three years, and a mandatory special assessment of $2,800 ($100 on each of the 28 counts of conviction).
Following the principles set forth in 18 U.S.C. § 3553(a), with specific emphasis on the need for specific and general deterrence in light of Rafael’s extensive flouting of the fishery reporting regulations and the harm it caused, this Court sentenced him to 46 months in custody, three years of supervised release (with a special condition barring him from the fishing industry), a special assessment of $2,800, and a fine of $200,000, the maximum guideline fine provided for Rafael’s adjusted offense level.
…This Court in order to carry out the Congressional mandate must decree forfeiture to the full extent permitted by the Eighth Amendment. …the guidepost is relatively clear; the forfeiture must not be grossly disproportionate to the maximum fine under the sentencing guidelines.
The government erroneously seeks to multiply the maximum fine by each of twenty-three counts of conviction for violations of the Lacey Act. That’s not how the guidelines work.
United States v. Bajakajian, 524 U.S. 321, 334 (1998) makes clear that a forfeiture of 70 times the maximum fine is grossly disproportionate, nothing in United States v. Jose, 499 F.3d 105 (1st Cir. 2007) suggests that 4 times the maximum guidelines fine is the outer limit of proportionality.
The Court, accepting the appraisals and listing of permits found in Rafael’s Opposition to Forfeiture, Exhibit — seeks to maximize, within constitutional limits, the number of vessels and permits to be forfeited. I have stayed away from the “Athena” and the “Hera II” because they have scalloping permits and scalloping is not involved in this wrong doing.
By adhering to our present quasi-determinate form of sentencing Congress has at the same time limited its largely unfettered legislative power in the premises by delegating to the Sentencing Commission the power to set fine ranges and, by extension, the permissible scope of constitutional forfeiture. Moreover, a forfeiture sanction of $2,000,000+ in assets accords well with Rafael’s suggested $2,800,000 cash forfeiture. Rafael, of course, would agree to this cash forfeiture in a last ditch effort to save his fleet entire and, apparently, sell it as a whole. The government will not agree- it seeks the forfeiture of actual Vessels and Permits.
Accordingly, Carlos Rafael shall forfeit all right, title and interest he may have in the “Bull Dog” ($661,3505 – 8 permits), the “Olivia & Rafaela” ($458,550 – 11 permits), the “Lady Patricia” ($338,800 — 4 permits), and the “Southern Crusader II” ($800,150 – 11 permits), i.e. four fish boats with a total appraised value for Rafael’s interest of $2,258,850 and 34 permits.
Lutcavage, colleagues to work out of UMass Boston
October 6, 2017 — For the first time in almost seven years, the highly-regarded Large Pelagics Research Center affiliated with the University of Massachusetts no longer has a Gloucester address.
The center, which has performed groundbreaking and internationally acclaimed research on the spawning habits and habitats of Atlantic bluefin tuna, closed up shop Thursday at its most recent home — the Americold-owned building at 159 E. Main St. in East Gloucester.
Americold has been actively shopping the site for months and recently informed the center it would have to vacate its office space by the end of October. Molly Lutcavage, the founder and executive director of the center, and Tim Lam, an assistant research professor, didn’t bother waiting until the end of the month.
“It’s sad to think that we won’t have a Gloucester presence anymore,” Lutcavage said. “For now, I guess we’ll be working out of our houses and garages.”
The center has been forced to navigate some rough seas in the past few years, changing its affiliation within the University of Massachusetts system and being forced out of its original facility at Hodgkins Cove, where it had been housed since 2011.
October 4, 2017 — The following was released by the New England Fishery Management Council:
The New England Fishery Management Council’s Scientific and Statistical Committee (SSC) will meet on Thursday, October 12, 2017. The public is invited to listen via webinar or telephone. Here are the details.
MEETING LOCATION: Hilton Garden Inn, Boston Logan Airport, 100 Boardman Street, Boston, MA. Hotel information is available here.
START TIME: 10:00 a.m.
WEBINAR REGISTRATION: Online access to the meeting will be available at: https://register.gotowebinar.com/register/3726401422414349827.
There is no charge to access the meeting through this webinar.
CALL-IN OPTION: To listen by telephone, dial +1 (562) 247-8321.
The access code is 818-682-657.
Please be aware that if you dial in, your regular phone charges will apply.
AGENDA: The SSC will (1) review information provided by the Council’s Scallop Plan Development Team (PDT) and recommend overfishing limit (OFL) and acceptable biological catch (ABC) levels for Atlantic sea scallops for fishing year 2018, as well as default OFL and ABC levels for 2019; (2) review information provided by the Council’s Whiting PDT and recommend OFLs and ABCs for the northern and southern stocks of silver hake and, separately, for red hake for fishing years 2018-2020; and (3) discuss other business as necessary.
MATERIALS: Meeting materials, as they become available, will be posted on the Council’s website at SSC October 12, 2017 documents.
QUESTIONS: Contact Joan O’Leary at (978) 465-0492 ext. 106, joleary@nefmc.org or Janice Plante at (607) 592-4817, jplante@nefmc.org.
September 27, 2017 — BOSTON –Judge William Young decided half of Carlos Rafael’s fate on Monday: The New Bedford fishing mogul was sentenced to 46-months in prison with three years supervised release and a $200,000 fine.
The other half, which Young continues to take under advisement, involves the 65-year-old’s 13 groundfish vessels and permits.
In court Monday, Young repeatedly questioned the constitutionality of the forfeiture, citing the excessive fines clause in the Eighth Amendment.
Young said courts with higher authority have heard and decided that fines exceeding four-times the maximum guideline are unconstitutional.
Regardless of how many permits Young orders to be forfeited, he made it clear he has no authority to decide what’s done with them.
NOAA’s guidelines call for the permits to be redistributed throughout the Northeast, which is why for months organizations and politicians have publicly called for redistribution or a deal that would remove Rafael from the industry. Many arguments focused on all 13, without consideration of a partial forfeiture.
Argument against redistribution
Allyson Jordan actually contributed to a portion of Rafael’s groundfish permits.
She sold two boats and four groundfish permits. Jordan said Maine’s fishermen had no interest in the permits until Rafael entered the picture.
“He bought permits and boats to make his business survive,” Jordan said. “I don’t believe they should be given back to the state of Maine. The state of Maine did nothing to help my industry, not to mention my business.”
“Everyone is coming out of the woodworks now,” Jordan said. “To be honest, they could have bought the permits.”
Support of redistribution
The Cape Cod Commercial Fishermen’s Alliance, which also manages the Cape Cod Fishermen’s Trust, also contributed to Rafael’s enterprise, but argued for redistribution of the permits as well as better monitoring.
According to Seth Rolbein, the director of the Cape Cod Fisheries Trust, Rafael acquired more nearly a million pounds of quota from the Trust.
From 2011 through 2015, the Trust leased 992,646 pounds of quota. The Trust has no records from 2010 and didn’t lease any to Sector IX after the U.S. Attorney released the indictment, tying Rafael to falsely labeling fish quotas.
“Our priority is to service our fishermen and our community,” Rolbein said. “If there are fish stock that our community is not using that we can not lease out at our subsidized rate to our own fishermen, we then will lease out to other sectors. The trust will lease fish to other sectors. But we will only do that once we’re satisfied that our own fishermen can’t use or don’t have use for that quota.”
What’s next?
The defense revealed Monday that Richard and Ray Canastra, of Whaling City Seafood Display Auction, have entered a Memorandum of Agreement to purchase Rafael’s entire fleet. Neither the U.S. Attorney nor NOAA have taken a final position on the sale.
September 20, 2017 — New Bedford, Massachusetts-based fishing magnate Carlos “Codfather” Rafael has challenged the government’s proposal to seize his fleet of 13 groundfish vessels, arguing that the act is unconstitutional, according to court documents filed by his legal team.
Forfeiting the vessels and their corresponding permits, which are allegedly worth more than USD 30 million (EUR 25 million), would be a violation of the excessive fines clause of the Eighth Amendment of the U.S. Constitution, Rafael’s lawyers said in court documents submitted for review to U.S. District Court judge William Young in Boston.
While U.S. sentencing guidelines place the legal maximum fine at no more than USD 250,000 (EUR 208,460) in cases such as this, Rafael’s legal team has suggested the Codfather forfeit USD 2.8 million (EUR 2.3 million), or double the value of the 782,812 pounds of groundfish Rafael admitted to misreporting.
“Such an order will serve the purposes of punishment (including severely punishing Mr. Rafael and deterring others) within constitutional bounds without incurring the devastating effects on his own business and innocent third parties that are threatened by the government’s motion,” Rafael’s lawyers wrote.
Issues of ownership regarding the seized groundfish fleet have cropped up over the course of Rafael’s trial. Rafael’s personal share of the vessel fleet up for grabs is valued at nearly USD 19 million (EUR 15.8 million), the balance of which belongs to his wife, Conceicao, according to the Codfather’s legal team. In a petition filed in Massachusetts on 28 August, Conceicao Rafael claimed ownership of 50 percent of eight fishing vessels and three fishing companies – My Way Fishing, Corvo, and S & S Fishing – that are tentatively subject to forfeiture by the United States government in relation to her husband’s criminal case.
September 12, 2017 — BOSTON — Girls interested in marine science will get a chance to hear from women making waves in the field this month at the New England Aquarium.
The aquarium and the Atlantic White Shark Conservancy will host the symposium featuring 10 female shark experts from around the world who will present ideas and research on various shark topics to the general public and a group of 150 high school and college-aged women.
Titled ‘Shark Tales: Women Making Waves,’ the symposium is organized by the Gills Club, an education initiative of the Atlantic White Shark Conservancy based around getting girls involved in science.
August 31, 2017 — Massachusetts loves its local oysters from places like Wellfleet and Duxbury. The state’s bivalve business is booming along with increased consumer demand. These days there’s no shortage of $1 oyster specials and oyster-centric restaurants around here.
But the ways oysters are harvested and handled have become more involved and challenging since 2013. That’s when bacteria linked to warming waters appeared in our marshes for the first time.
The result was an outbreak of gastrointestinal illness caused by Vibrio Parahaemolyticus — Vp or Vibrio for short. (To be clear, this is different from norovirus, which led to a closure of shellfish beds in Wellfleet last year.)
In response to the Vp bacteria’s emergence in New England, the state implemented a Vibrio Control Plan. Here’s how those state efforts to control bacterial infection have been affecting people in the oyster industry.
‘The Waters Are Warmer Than They Used To Be’
At Select Oyster Bar in Boston, you can find a rotating selection of Massachusetts oysters on-the-half-shell — Moon Shoal petites from Kingston, Ichabods from Plymouth and Wellfleet Puffers.
For about a dozen years Select’s chef-owner Michael Serpa has been serving mollusks in Boston establishments, including the cult-favorite Neptune Oysters in the North End. “I’ve seen a lot of oysters,” he told me, smiling.
August 22, 2017 — NEW BEDFORD, Mass. — John Bullard wants to arm fishing vessels with a smartphone — figuratively speaking.
“Nobody has rotary phones anymore, we just assume smartphones are the way we communicate and all the benefits of smartphones we’ve come to expect as normal,” Bullard said. ”(Electronic monitoring) is what we’re going to transition to, but it’s going to take time.”
NOAA’s Northeast Regional director said he believes current methods can lead to inaccurate science. Last week, NOAA conducted a fishing stock assessment meeting in New Bedford where similar concerns of bad science emerged. The root of the concern was data from false reports.
Electronic monitoring, specifically cameras on vessels, would provide accurate information.
“This is a major, in my opinion, improvement,” Bullard said. “I think it’s a major benefit to the industry.”
A letter signed by 12 members of the Massachusetts House of Representatives sparked discussion of electronic monitoring. The group, which included Patricia Haddad representing Bristol’s 5th District, sent the letter to Charlie Baker asking the governor to use any capital forfeiture associated with Carlos Rafael’s sentencing to pay for electronic monitoring.
Rafael pleaded guilty in March to false labeling fishing quotas. His sentencing hearing is Sept. 25 and 26 in Boston.
August 21, 2017 — As Interior Secretary Ryan Zinke approaches the 24 August deadline for his recommendations to President Donald Trump on whether to alter dozens of national monuments, conservation proponents say it remains all but impossible to predict which sites the administration could target for reductions or even wholesale elimination.
In recent months, Zinke has traveled from coast to coast as he conducted the review, which included 27 national monuments created since 1996, the majority of which are larger than 100,000 acres.
Northeast Canyons and Seamounts Marine National Monument, Atlantic Ocean
Obama created the first Atlantic marine monument in 2016 when he designated nearly 5,000 square miles for preservation off the coast of Massachusetts.
But the decision — which barred oil and gas exploration in the area and restricted commercial fishing — drew a lawsuit from Northeastern fishermen, including the Massachusetts Lobstermen’s Association, Atlantic Offshore Lobstermen’s Association, Long Island Commercial Fishing Association, Rhode Island Fishermen’s Alliance and Garden State Seafood Association.
The case is pending in the U.S. District Court for the District of Columbia, but a judge stayed action in the case in May to await the outcome of the Trump administration’s reviews (E&E News PM, May 12).
During his visit to the East Coast in June, Zinke stopped in Boston to meet with both fishermen’s groups and scientists about the monument.
The Boston Globe reported that Zinke appeared sympathetic while meeting with about 20 representatives of New England’s seafood industry.
“When your area of access continues to be reduced and reduced … it just makes us noncompetitive,” Zinke said at the time. “The president’s priority is jobs, and we need to make it clear that we have a long-term approach to make sure that fishing fleets are healthy.”
Papahānaumokuākea Marine National Monument, Hawaii
This site near Hawaii is the world’s largest marine protected area at nearly 600,000 square miles.
Bush first designated the site — originally named the Northwestern Hawaiian Islands Marine National Monument — in 2006, then renamed it to Papahānaumokuākea in early 2007 in honor of Hawaiian gods Papahānaumoku and Wākea, whose mythology includes the creation of the Hawaiian archipelago and its people.
In 2016, Obama opted to quadruple the site’s size to protect the 7,000 species that live in the monument’s boundaries, as well as to extend prohibitions on commercial fishing and extractive activities (E&E Daily, Aug. 26, 2016).
The Trump administration could opt to try to roll back those prohibitions as well as the monument’s size.