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.

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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.