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.
Moreover, an alleged business associate of Rafael’s, Joao Camara, has claimed ownership of the vessel “Southern Crusader II,” which is on the forfeiture list. Camara has filed two separate documents claiming ownership of the vessel, which he reportedly operates through a company called R and C Fishing Corp. Both Camara and Conceicao Rafael have alleged that they were not aware of Rafael’s criminal activities.
Rafael, who owns Carlos Seafood, formally pleaded guilty to falsifying fish quotas, tax evasion, and conspiracy on Thursday, 30 March, 2017, in U.S. District Court in Boston, Massachusetts. His sentencing hearing is tentatively scheduled for this month, on 25 and 26 September. Initially, as part of his guilty plea, Rafael agreed to forfeit the 13 fishing boats and their groundfish permits, which will be returned to the National Marine Fisheries Service. Judge Young will decide on whether the latest claims brought forth by Rafael’s legal team regarding the constitutionality of the forfeiture have any basis within the confines of the case.
A buyer of “spotless” rapport
According to court records, Rafael has lined up a buyer to purchase his share of the 13 groundfish vessels up for forfeiture, a deal valued at USD 16.3 million (EUR 13.5 million). Although the buyer’s name could not be obtained by SeafoodSource at this time, as court documents naming the purchaser are sealed, Rafael’s lawyers note that the individual or company in question has a “spotless” compliance record.
“Mr. Rafael has spent considerable effort seeking a purchaser with a spotless compliance record that would not only be able to successfully operate a fleet of his size, but is also willing to commit to operating the business out of the Port of New Bedford,” Rafael’s legal team stated in court documents submitted to Judge Young.
The government and the buyer are working with Rafael to arrange and finalize the deal, the court documents claim.
“[Rafael] is working cooperatively with the government to finalize the terms of the sale – which currently include the 13 vessels and permits subject to forfeiture – and is prepared to use the down payment from the purchase to pay whatever financial penalties are imposed by this court in lieu of the government’s requested forfeiture,” his lawyers wrote.
Crime and punishment
Opinions vary regarding where settlements from the Codfather case should be allocated once all is said and done. A dozen Massachusetts legislators argued in a letter to Massachusetts Governor Charlie Baker that any settlement collected in the Rafael case should be used to pay for electronic monitoring on fishing vessels, and that Rafael’s fishing permits should be re-distributed to commercial fishermen in Massachusetts. Several officials in Rafael’s home port of New Bedford, Massachusetts arrived at a similar sentiment, and urged the federal government to keep the permits local in a letter sent out in June. For his part, New Bedford Mayor Jon Mitchell appealed to the Justice Department and NOAA, claiming that the removal of the permits from New Bedford would harm the local economy.
Conversely, Maine’s bipartisan congressional delegation has asked U.S. Commerce Secretary Wilbur Ross to redistribute the permits beyond New Bedford, according to a recent letter sent Ross’ way. A report from the Cape Cod Times finds many New England fishermen hoping that the courts and the National Oceanic and Atmospheric Administration (NOAA) will make an example of Rafael in some way.
“I’ve said before, there is no place in fishing for Mr. Rafael. If that’s part of the global solution (the larger deal being worked out between NOAA and Rafael’s attorneys) every fisherman I’ve spoken to up and down the coast feels that’s a good outcome,” John Pappalardo, chief executive officer of the Cape Cod Commercial Fishermen’s Alliance and a member and former chairman of the New England Fishery Management Council, told the Cape Cod Times in August.
Both Pappalardo and Maggie Raymond, executive director of the Associated Fisheries of Maine, are hoping that all quota permits forfeited to NOAA as a result of the case be redistributed to fishermen across New England.
“Rafael has harmed the entire groundfish industry, and fishermen from Maine to New York deserve to be compensated,” Raymond wrote in a recent editorial.
Rafael’s lawyers, on the other hand, are claiming that the damage inflicted on local fish stocks hasn’t been as significant as initially assumed. The Codfather’s legal team cited in its latest legal documentation a report authored by Dr. Brian Rothschild, Dean Emeritus of the University of Massachusetts, Dartmouth School for Marine Science and Technology, which found that “the under-reported catch effects on fishermen or stock-assessment quality are de minimus.”
Rothschild’s report also concluded that “the Sector IX [under-reported catch] relative to the Sector Fleet catch and allocation was less than one percent” and that “the percent of [under-reported catch] of the Sector Fleet catch and allocation was less than one percent.”
Rafael’s sentencing guidelines originally had him facing between 63 and 78 months in prison. However, his guilty plea opens up the possibility of a lighter sentence, between 47 and 56 months' imprisonment.
