January 17, 2018
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Judge questions constitutionality of seizing Carlos Rafael’s fishing permits

By Michael Bonner, The Standard-Times
Updated:
John Sladewski | AP | BDN
John Sladewski | AP | BDN
Carlos Rafael talks on the phone at Homer's Wharf near his herring boat F/V Voyager in New Bedford, Massachusetts, Oct. 14, 2014.

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.

“I have grave doubts given the value of the vessels and permits,” Young said. “That the appraised value doesn’t exceed four times a maximum guidelines fine.”

Young said courts with higher authority have heard and decided that fines exceeding four-times the maximum guideline are unconstitutional.

Guidelines listed a $200,000 maximum for Rafael’s convictions, which included falsifying fishing quotas, bulk cash smuggling and tax evasion.

The prosecution said the 13 vessels and permits are valued at $27 million. But Rafael’s stake, because of shared ownership, is valued at about $14 million.

To avoid an excessive fine, the prosecution argued that Rafael should be penalized the maximum amount for each of the 28 counts. The total, which equates to $5.6 million, would allow up to a $22 million fine.

Young questioned whether the government can penalize Rafael $200,000 for each count. To Young, the guidelines encompassed all 28 counts.

When the prosecution laid out the government’s right to the vessels and permits, Young balked at the idea that he has the constitutional power.

“Suppose I give you three, suppose I give you 10?,” Young said. “Maybe 13 vessels and permits are too high?”

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.

Two years ago, the daughter of a Maine fishermen no longer saw the light at the end of the tunnel in her father’s business, which he began assembling as a 10-year-old.

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.”

The sentiments echo what Rafael’s defense, that he falsely labeled quotas to prevent his groundfish enterprise from losing too much money.

David Jordan, Allyson’s father, purchased his first commercial fishing vessel, the Molly Jane, out of New Bedford in 1966.

“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?

Young didn’t provide a specific deadline to determine his decision regarding the permits and vessels. It’s likely he will issue a written ruling when he’s decided.

In the meantime, there’s nothing preventing the prosecution and the defense from continuing to negotiate a global settlement, which would eliminate the need for Young’s ruling.

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.

Rafael is scheduled to report to prison on Nov. 6. The defense has requested he serve the time at Fort Devens.

Distributed by Tribune Content Agency LLC.

 


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