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Judge issues forfeiture order in Rafael case

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.

New England fishing council frozen until NOAA, judge done with Rafael

September 27, 2017 — GLOUCESTER, Mass. — There is no shortage of changes the National Oceanic and Atmospheric Administration could make to the way catch limits are regulated and enforced in the Gulf of Maine in the wake of the Carlos Rafael’s sentencing on Monday. But first it will take recommendations from the New England Fishery Management Council (NEFMC), and the 17-member panel this week put off staking out a position.

There is not yet a consensus in the group, which will wait to see how US District Court Judge William Young handles an argument over how much of Rafael’s fishing fleet will be seized by the federal government and what, if any, civil money penalties come from the National Oceanic and Atmospheric Administration before addressing the issue, said  John Quinn, NEFMC’s chairman.

“We’ve got a regulation in place and we’ve first got to see what and how that regulation is applied,” Quinn told Undercurrent News on Tuesday, during a break in the first day of the group’s three-day regular meeting at a hotel on the water here.

Young gave Rafael a 46-month prison sentence and ordered him to pay more than $300,000 in fines and penalties in a Boston federal court for misreporting nearly 783,000 pounds of fish between 2012 and early 2016, but he said he needed more time to consider the arguments made by prosecutors and Rafael’s defense team regarding an effort to seize his assets.

Read the full story at Undercurrent News

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

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

Fishing industry awaits Rafael outcome

Stakeholders weigh in on fate of Codfather’s permits, penalties

September 22, 2017 — The specter of Carlos Rafael, along with his legal baggage and trove of groundfish permits, continues to hang over the New England commercial fishing industry like a shroud that most stakeholders wish would just go away.

The sentencing of Rafael, the New Bedford fishing magnate known as “The Codfather” for his expansive vessel and groundfish permit holdings, is set to begin Monday in U.S. District Court in Boston on charges of conspiracy, lying to federal fishing regulators about the nature and size of his groundfish landings and bulk smuggling.

“We can’t wait for this to be resolved,” said Maggie Raymond of the Associated Fisheries of Maine.

The sentencing of the 65-year-old Rafael, who pleaded guilty in March as part of a plea deal with federal prosecutors, won’t end the contretemps. Not by a long shot.

While everyone seems to agree that Rafael should feel the full wrath of the law for his admitted misdeeds — he faces up to 76 months in prison, restitution of $109,000 to the IRS and the seizure of at least the 13 groundfishing vessels used in his scam — full resolution only will come when NOAA Fisheries decides the final fate of his 42 groundfishing permits.

There is no shortage of opinions of what NOAA should do.

Read the full story at the Gloucester Times

Local buyer for Carlos Rafael’s fishing permits, court documents say

September 21, 2017 — NEW BEDFORD, Mass. — Documents filed in federal court Monday reveal that a local buyer has been identified for Carlos Rafael’s fishing permits. The potential deal would remove Rafael from commercial fishing, according to a 14-page document filed by Rafael’s attorneys opposing federal forfeiture.

The single buyer is identified as having “a spotless compliance record” to purchase at least the 13 groundfish permits and vessels. The document is unclear if Rafael’s additional permits and vessels, estimated to be at least 35 in total, are included in negotiations. However, it states, “Rafael has taken substantial steps to voluntarily remove himself from the federal fishery entirely in a manner that does not jeopardize New Bedford’s economy.”

The document appraises the 13 groundfish permits, related to Rafael’s illegal reporting guilty plea in March, as worth more than $30 million. Rafael’s ownership, excluding other business partners’ shares, amounts to more than $19 million. The purchase price for the identified buyer is $16,333,558, according to the document.

In contacting a number of sources within the fishing industry Wednesday, The Standard-Times found no evidence that this deal had been completed. Rafael is scheduled to appear Monday and Tuesday for sentencing in U.S. District Court in Boston.

Two prominent businesses in New Bedford possess the means to acquire the permits based on financial means and ability to operate a fleet of that size: Whaling City Seafood Display Auction and Eastern Fisheries. Neither returned requests for comment.

Read the full story at the New Bedford Standard-Times

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