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Constitutionality of seizing Carlos Rafael’s permits in question

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.

Read the full story at the New Bedford Standard-Times

MASSACHUSETTS: Mayor Mitchell testifies in front of Congress on Magnuson-Stevens

September 27, 2017 — NEW BEDFORD, Mass. — Mayor Jon Mitchell traveled to the nation’s capital Tuesday to speak on potential improvements to the Magnuson-Steven Act, which governs marine fishery management in the United States.

He spoke to the Subcommittee on Water, Power and Oceans regarding one key theme: flexibility.

“What New Bedford has to say about commercial fishing carries weight in the halls of Congress,” Mitchell said. “We are the biggest commercial fishing port in the country. We should have a seat at the table when Congress goes about reforming our nation’s fisheries laws.”

Mitchell was invited to testify by Natural Resources Committee Chairman Rob Bishop who visited New Bedford last year. Though invited by the Republicans to speak in front of Congress, the Democratic mayor pitched bi-partisan ideas in the reauthorization of the act.

“What’s really interesting is there isn’t a great deal of difference between the Democratic and Republican reauthorization bills,” Mitchell said. “I testified as much.”

While in Washington, D.C., he also met with Nancy Pelosi, the House minority leader, to discuss tax reform in cities as well as infrastructure. Away from fishing, he also met with Sen. Dick Durbin of Illinois, who co-sponsored the DREAM Act aimed at helping resurrect DACA.

Read the full story at the New Bedford Standard-Times

NCFC Members Bring Concerns of Commercial Fishermen to House Hearing on Fisheries Bills

WASHINGTON (Saving Seafood) – September 26, 2017 – Members of Saving Seafood’s National Coalition for Fishing Communities testified this morning at a hearing of the House Natural Resources Subcommittee on Water, Power and Oceans on four bills that would modify federal fisheries management.

Jon Mitchell, mayor of the nation’s top-grossing fishing port New Bedford, Massachusetts and head of the New Bedford Harbor Development Commission, and Mike Merrifield, Fish Section Chairman of the Southeastern Fisheries Association (SFA) testified on the needs of commercial fishermen and reforms they would like to see to the Magnuson-Stevens Act.

Mayor Mitchell and Mr. Merrifield were joined by several other witnesses, including Assistant Administrator for NOAA Fisheries Chris Oliver, who testified on the reauthorization of the Magnuson-Stevens Act and the possibility of allowing additional flexibility in stock rebuilding. Earlier this year, commercial fishermen from around the country united to support Mr. Oliver’s appointment to NOAA.

At this morning’s hearing, the subcommittee considered two bills to amend and reauthorize the Magnuson-Stevens Act, as well as bills that would alter recreational fisheries and red snapper management.

While Mayor Mitchell called the Magnuson-Stevens Act “generally speaking…a success story” that has helped make America’s fisheries “at once among the world’s largest and most sustainable,” he called for more flexibility in fisheries management to allow fishermen to catch their full scientifically justified quota. In particular, he criticized the ten-year rebuilding requirement for overfished stocks.

“The ten-year rule is arbitrary, and its establishment was at odds with the underlying premise of regional management,” Mayor Mitchell said. “Regional councils should have the flexibility to set rebuilding timelines for stocks under their jurisdiction based on the unique biological and ecological conditions, and by giving appropriate weight to the economic wellbeing of fishing communities.”

The mayor was also critical of the Antiquities Act, by which presidents can designate large national monuments with little or no input from scientists and local stakeholders. The Act was recently used to create and enlarge several marine monuments, including the Northeast Canyons and Seamounts Marine National Monument in New England and the Papahānaumokuākea Marine National Monument in Hawaii.

“The continued use of a parallel process outside the Magnuson-Stevens Act, however well-meaning, ultimately works against the long-term interests of all stakeholders,” Mayor Mitchell said. “We all lose when the checks and balances employed in the council process are abandoned.  A decision-making process driven by the simple assertion of executive branch authority ultimately leaves ocean management decisions permanently vulnerable to short-term political considerations.”

Mr. Merrifield voiced skepticism of efforts to shift federally managed species over to state management, saying that states manage many fisheries in such a way that recreational fishermen get most or, in some cases, all of the fish.

“SFA firmly believes there should be no reward for exceeding [annual catch limits] and that all stakeholders – commercial, for-hire and private anglers – should each be held accountable for their impacts on our nation’s fish resources,” Mr. Merrifield testified. “We must resist changes to the law that could be interpreted to remove this accountability.”

Mr. Merrifield also testified about the SFA’s strong opposition to the RED SNAPPER Act, introduced by Rep. Garret Graves of Louisiana, which would give states more authority over red snapper management.

“The justification [for this legislation] is built entirely on the misconception that anglers can only fish for red snapper for 3 days (now 39 days) in federal waters in the Gulf of Mexico,” Mr. Merrifield said. “This is a false narrative. Anglers can fish 365-days per year for red snapper and all of the other 38 species in the Gulf reef fish complex. They can only kill red snapper on 3 (or 39) of those days. To be clear, there is unlimited fishing opportunity for recreational anglers in the federal waters of the Gulf which calls into question the actual need for, and defense of, this legislation.”

Read Mayor Mitchell’s full testimony here

Read Mr. Merrifield’s full testimony here

NEFMC to Review Carlos Rafael Sentence, Tuesday, September 26

September 26, 2017 — The following was released by the New England Fishery Management Council:

As many of you are aware, Carlos Rafael was sentenced today, September 25, 2017, in U.S. District Court in Boston.  The case reference is “United States of America v. Carlos Rafael No. 16-CR-10124-WGY.”  A press release describing the sentence was issued by the U.S. Attorney’s Office for the District of Massachusetts.  It is available at Rafael Sentencing.

The New England Fishery Management Council will review the sentence tomorrow morning, Tuesday, September 26, shortly after opening up its three-day meeting in Gloucester, MA at the Beauport Hotel.  Reappointed Council members will be sworn in, and the annual election of officers will be conducted before the Rafael case is discussed.

WEBINAR INFORMATION:  A webinar is available for this meeting.  Registration details can be found at webinar.  The agenda and meeting materials are at NEFMC.

THE SENTENCE:  The U.S. Attorney’s Office stated, “Carlos Rafael, 65, of Dartmouth, was sentenced by U.S. District Court Judge William G. Young to 46 months in prison and three years of supervised release, during which time he is banned from working in the fishing industry.  The Court also ordered Rafael to pay a fine of $200,000 and restitution to the U.S. Treasury of $108,929.  Rafael may also be subject to forfeiture of a portion of his fishing fleet, but the Court held that issue for further consideration.”

EXECUTIVE DIRECTOR’S COMMENT:  Immediately following the sentencing, New England Fishery Management Council Executive Director Tom Nies said, “Carlos Rafael is a criminal who stole from his fellow fishermen and the public by intentionally misreporting his catch.  His conduct was reprehensible and the criminal penalties he received are well-deserved.  We once again thank our government enforcement agencies for bringing him to justice.”

WHAT RAFAEL DID:  “From 2012 to January 2016, Rafael routinely lied to the National Oceanic and Atmospheric Administration (NOAA) about the quantity and species of fish his boats caught in order to evade federal quotas designed to guarantee the sustainability of certain fish species,” stated the U.S. Attorney’s Office.  “During that period, Rafael misreported to NOAA approximately 782,812 pounds of fish, telling NOAA that the fish was haddock, or some other abundant species subject to high quotas, when in fact the fish was cod, sole, or other species subject to strict quotas.  After submitting false records to federal regulators, Rafael sold much of the fish to a wholesale business in New York City in exchange for duffle bags of cash.  During meetings with the undercover agents, Rafael said that in his most recent dealings with the New York buyer he received $668,000 in cash.  Rafael smuggled at least some of that cash out of the United States to his native Portugal, hiding it there to evade federal taxation on that revenue.”

GUILTY PLEA:  The U.S Attorney’s Office stated, “In March 2017, Rafael pleaded guilty to one count of conspiring to commit offenses against the United States, 23 counts of false labeling and fish identification, two counts of falsifying federal records, one count of bulk cash smuggling, and one count of tax evasion.  He was initially arrested and charged in February 2016.  Rafael, the owner of Carlos Seafood Inc., based in New Bedford, Mass., owned 32 fishing vessels through independent corporate shells and 44 permits, which amounted to one of the largest commercial fishing businesses in the United States.”

MASSACHUSETTS: Carlos Rafael to leave commercial fishing behind after spending years in prison for his crimes

September 26, 2017 — U.S. District Court Judge William Young sentenced former fishing magnate Carlos “Codfather” Rafael to 46 months of imprisonment on Monday, 25 September, for his role in orchestrating a quota and tax evasion scheme out of his New Bedford, Massachusetts-based business, Carlos Seafood.

Sentencing deliberation is continuing on Tuesday, 26 September as the court considers the fate of Rafael’s 13 groundfish vessels and permits, which have been listed for forfeiture as a tentative condition of his guilty plea.

Rafael is scheduled to begin serving his prison sentence on 6 November, when he is expected to report to authorities at an assigned penal facility. His legal team has requested that Rafael serve out his prison sentence at Fort Devens, located between the Massachusetts towns of Ayer and Shirley. In addition to incarceration, Young also ordered three years of supervised release for Rafael, and mandated he pay a USD 200,000 (EUR 169,611) fine. Furthermore, Rafael has been barred by the court from having anything to do with the commercial fishing industry following his prison term and subsequent supervision period.

The deliberate, corrupt nature of Rafael’s crimes factored heavily into the sentencing terms, Young explained on Monday.

Read the full story at Seafood Source

Timeline: Case of Carlos Rafael

September 26, 2017 — Feb. 26, 2016: Federal authorities raided Carlos Seafood on South Front Street in New Bedford, arresting owner Carlos Rafael, 64, and bookkeeper Debra Messier, 60, both of Dartmouth, on charges of conspiracy and falsifying records. Rafael was held without bail; Messier was released on a $10,000 unsecured bond.

March 2, 2016: Rafael is allowed to return home under strict conditions of a $1 million bond; he is allowed to continue working, too. Rafael and his wife, Conceicao, agree to place their Tucker Lane home in North Dartmouth and Carlos Seafood as collateral for the bond.

March 25, 2016: Prosecutors receive an extension of the deadline to indict Rafael. The length of the deadline’s extension is not disclosed.

May 4, 2016: Rafael has been indicted by federal prosecutors for lying about fish catches and smuggling cash to Portugal through Logan airport in Boston, in a multi-year scheme involving hundreds of thousands of dollars, according to court documents. The indictment lists 27 counts against Rafael, for charges including conspiracy, false entries and bulk cash smuggling. Rafael is alleged to have falsely reported the species of more than 815,000 pounds of fish to the National Oceanic and Atmospheric Administration (NOAA) between 2012 and January 2016, according to the Office of U.S. Attorney Carmen Ortiz.

May 4, 2016: Antonio Freitas, 46, of Taunton is charged with using his special assignment status as a member of the Department of Homeland Security Task Force, which gave him access to restricted areas of Logan International Airport, to help Rafael smuggle cash out of the U.S. Freitas is a member of the Bristol County Sheriff’s Honor Guard.

Read the full story at the New Bedford Standard-Times

New Bedford Standard-Times: Fishing industry may get a win from Washington

September 25, 2017 — The unexpected re-examination of the status of the Northeast Canyons and Seamounts Marine National Monument under President Trump is a welcome development for New Bedford’s commercial fisherman.

The nearly 5,000 square miles of protected waters that lie about 130 miles southeast of Cape Cod was closed off to commercial fishing last year when President Obama designated the area the first Atlantic marine national monument. The decision came despite fishing industry outcries about both the lack of public input during the process and the harm to the fishing way of life.

Several industry organizations, including the New England Fishery Management Council, rightly pointed out, at the time, that fisheries have worked with government, scientific, and environmental communities for years to create regulations and oversight procedures to protect marine resources. And that important regional stakeholders were working on an ocean management plan to preserve resources.

Most notably, fisheries have been managed for more than 40 years under the federal Magnuson-Stevens Fishery Conservation and Management Act, put in place to protect marine environments, prevent overfishing, and promote biological sustainability of marine life.

Read the full editorial at the New Bedford Standard-Times

Carlos Rafael sentenced to 46 months in prison

September 25, 2017 — BOSTON — Judge William Young sentenced Carlos Rafael to a 46-month prison term, but he held off on a decision regarding the forfeiture of any permits or vessels.

Rafael also received three years supervised release.

His attorney William Kettlewell requested the sentence be served at Fort Devens. Rafael will have credit for the time he spent in jail earlier in his life, which equated to about nine days. He’ll also pay a $200,000 fine.

Read the full story at the New Bedford Standard-Times

Scallop auction owners, friends of Carlos Rafael, tipped as likely fleet buyers

September 25, 2017 — Could old friends of Carlos Rafael’s wind up with his massive New England fishing fleet?

Speculation is building that the Buyers and Sellers Exchange (BASE), an electronic seafood auction firm in New Bedford, Massachusetts, could be the company mentioned in court documents as having signed a memorandum of agreement to buy the 30-something vessels, an unknown number of skiffs, and some 50 state and federal permits to catch scallops, cod, haddock and many other fish found in the Gulf of Maine.

Richard and Raymond Canastra, BASE’s co-owners, were not in their offices on Friday, a company employee told Undercurrent News. But many see it as a likely match.

Raymond Canastra is reported to be a long-time friend of Rafael’s. The two mens’ daughters co-own a seafood brokerage firm in New Bedford.

The Canastra brothers don’t have fishing boats, but if they were able to acquire the Rafael operation, “it would not be a surprise to anyone”, Jim Kendall, a longtime member of the area fishing community and the executive director of New Bedford Seafood Consulting, told Undercurrent.

The Canastras know the fishing industry well, and probably wouldn’t have too much trouble making Rafael’s business work with theirs, he said. There is little money to be made in groundfish, but Rafael’s scallops permits could be quite valuable. Also, it would satisfy the goal of keeping nearly 300 jobs in the area.

Read the full story at Undercurrent News

NCFC Members to Testify at House Hearing on Fishery Bills

September 25, 2017 — Tomorrow at 10:00 AM, two members of Saving Seafood’s National Coalition for Fishing Communities will testify before a House Natural Resources subcommittee on four bills affecting fisheries and fisheries management. Jon Mitchell, the Mayor of New Bedford, Massachusetts and head of the NCFC member New Bedford Harbor Development Commission, and Mike Merrifield, of the Southeastern Fisheries Association, will join other witnesses at tomorrow’s hearing.

The following information on the hearing was released by the House Natural Resources Committee Subcommittee on Water, Power, and Oceans:

On Tuesday, September 26, 2017, at 10:00 a.m., in room 1334 Longworth House Office Building, the Subcommittee on Water, Power and Oceans will hold a legislative hearing on the following bills:

  • H.R. 200 (Rep. Don Young), To amend the Magnuson-Stevens Fishery Conservation and Management Act to provide flexibility for fishery managers and stability for fishermen, and for other purposes.
  • H.R. 2023 (Rep. Garret Graves), To modernize recreational fisheries management “Modernizing Recreational Fisheries Management Act of 2017.”
  • H.R. 3588 (Rep. Garret Graves), To amend the Magnuson-Stevens Fishery Conservation and Management Act to provide for management of red snapper in the Gulf of Mexico, and for other purposes. “RED SNAPPER Act.”
  • Discussion Draft of H.R. ____ (Rep. Jared Huffman), To amend and reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, and for other purposes.

Witnesses:

The Honorable Jonathan Mitchell 
Mayor
City of New Bedford
New Bedford, Massachusetts

Mr. Chris Macaluso
Director, Center for Marine Fisheries
Theodore Roosevelt Conservation Partnership
Washington, DC

Ms. Susan Boggs
Co-Owner
Reel Surprise Charter Fishing
Orange Beach, Alabama

The Honorable Wilbur Ross (Invited)
Secretary
U.S. Department of Commerce
Washington, DC

Mr. Ben Martens
Executive Director
Maine Coast Fisherman’s Association
Brunswick, Maine

Mr. Mike Merrifield
Southeastern Fisheries Association
Tallahassee, Florida

Mr. Chris Blankenship
Commissioner
Alabama Department of Conservation and Natural Resources
Montgomery, Alabama

More information on the hearing, including a link to a live stream of the proceedings, can be found at the House Natural Resources Committee website.

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