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October 03, 2012

Understanding The Supreme Court Rubashkin Decision

Rubashkin closeupThe Supreme Court of the United States (SCOTUS) turned down Sholom Rubashkin's petition for a Writ of Certiorari (Cert) without comment. Here are facts you need to be able to understand this properly and put it into context.

 

SCOTUS

1. Is not an appeals court. To quote Wikipedia:

…Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, most cases cannot be appealed to the U.S. Supreme Court as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court.….

A minimum of four of the nine Justices are required to grant a writ of certiorari, referred to as the "rule of four.” The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that concluded in June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1 percent.…The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources.…

The Supreme Court sometimes grants a writ of certiorari to resolve a "circuit split,” when the federal appeals courts in two (or more) federal judicial circuits have ruled differently in similar situations. These are often called "percolating issues.”…

2. SCOTUS comments at most on a small handful of cases it turns down each session. Sometimes it doesn't comment at all.

3. There is no legal reason that mandates SCOTUS to issue comments about the cases it rejects.

Rubashkin's Cert Petition

1. Is based on two claims: a) "new" evidence unavailable before trial proves the trial judge should have recused herself and, b) the sentence of 25 years (plus a 2-year enhancement for perjury) is, 1) too high for a first time non-violent offender, 2) much higher than other jurisdictions, and 3) failed to grant him a downward departure for his autistic son and for the all the charity he (Rubashkin) gave.

Facts – The "New" Evidence

1. Rubashkin's attorneys knew Judge Reade was involved in logistical planning for the court's remote location (including making sure enough defense attorneys were there and that they had access to private meeting rooms, secure Internet, telephones, support staff, etc.) before the immigration raid on Agriprocessors but chose not to ask her to recuse herself.

2. Nothing in the FOIA documents Nathan Lewin got after the trial showed anything other than this logistical cooperation. Further, nothing in those documents shows that Judge Reade even knew what company would be the target of raid, and the various agencies involved in the planning say that she did not know. (Even if she had known, her involvement was similar to hearing evidence for issuing a search warrant [or several search warrants] and it would not have automatically disqualified her from hearing Rubashkin's case.)

3. To merit a new trial, newly discovered evidence must actually be new in the sense that it a) was unknown to the defendant before trial and, b) could have led to a different trial outcome. So finding out after the trial that Judge Reade spoke to US Attorneys and ICE about the set up of the remote court location 12 times rather than 3 or 4 times is not new evidence. She could have spoken to them 100 times about secure IP addresses, number of bathrooms and showers, and the date the raid would take place and that would not be new evidence because what was spoken about and the fact that Judge Reade and the US Attorney and ICE were speaking was already known before the trial began. And because Rubashkin could show no error at trial that would have caused his verdict to any different than it was, the new outcome standard was not met.

Facts – The Sentence

1. The United States Sentencing Commission Guidelines call for a 22 to 30 year sentence. That is calculated by the amount of loss to the lenders (almost $27 million), not by the number of charges, and was stiffened by a conspiracy enhancement given to Rubashkin because he directed a conspiracy to defraud. 

2. A federal judge is not required to depart downward or to enhance upward in sentencing. What she is required to do is to explain in her sentencing memorandum why she has or has not done either. Judge Reade did that, and met and even exceeded her requirement to do so.

3. Rubashkin's sentence was not stiffer than all other first time white collar criminals who have committed similar crimes. But there is variance between the various judicial circuits in sentencing for crimes like this. That is because the sentencing guidelines are not mandatory. Judges have to explain any departure from them, but as noted above, they can depart downward or enhance upward.

4. Rubashkin's only real hope was that SCOTUS would see these variances as being so extreme that they warranted reconciliation. But it did not, probably because there are almost no upward enhancements in sentencing compared to downward departures, and the sentencing range was, in effect, set by Congress. As long as a sentence is in the range set by the guidelines, SCOTUS will not get involved (unless, perhaps, the potential reasons for downward departure were extremely compelling or unique, which was not the case here).

Summary

Rubashkin didn't have case.

But he did have the legal right to try to convince SCOTUS that he did.

His attorneys – the best money can buy – took their best shot, but it wasn't enough.

If you got your Rubashkin news from Nathan Lewin, Guy Cook and Allan Dershowitz, or Yated Ne'eman, Matzav. VIN, Yeshiva World, or the Chabad blogs, you were probably blindsided by SCOTUS's refusal to take Rubashkin's case.

But if you got your Rubashkin news here, and if you read the various court documents and court filings I posted over the years, you would have been much less shocked, if at all. All the points (and more) about Rubashkin's sentence, the "new" evidence, etc., were made here many times over the past years.

I have advocated since Rubashkin's sentencing for effort to be put into getting the sentencing guidelines reformed.

In the end, that may be Rubashkin's only real hope for a reduced sentence.

Comments

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Rubashkin's response to SCOTUS's decision can be seen here.

If anyone can provide a translation into standard grammar, I'd appreciate it.

monday morning quarterback

I would use your site as a news source if you would give accurate information. You forgot to mention that the petition to the supreme court was not to ask the supreme court to order a new trial but to rule if new evidence about the fairness of the trial (and not only evidence of innocence) are sufficient to grant a new trial. His guilt or innocence was not at issue with this petition to the supreme court. It was a simple question if new evidence that have nothing to do with guilt or innocence but are regarding the fairness of the trial can be considered for a new trial. Please include all the facts if you want to claim to be a reliable news source.

No rallying cry (or any cry) yet posted over on CHInfo, with the exception of the usual loons like Milhouse declaring anyone a goy who agrees with the decision to deny cert.

The only mention is a short post that is... accurate. interestingly, they don't mention that he was a Grand Poobah of Chabad, and instead refer to him as merely a "former kosher slaughterhouse executive":

"The U.S. Supreme Court has declined to review a 27-year prison term issued to a former kosher slaughterhouse executive convicted of financial fraud following a huge immigration raid at the Iowa plant.

The Supreme Court declined Monday to consider an appeal filed by former Agriprocessors Inc. vice president Sholom Rubashkin.

He was convicted of a scheme to cheat the Postville plant’s lender out of $27 million by submitting fake invoices that made its finances appear healthier than they were. His arrest came after immigration authorities raided the plant and arrested 389 illegal immigrants."

B"H

I read the link to shmais w Shlomo Mordecha haLevy response.

I am in awe of his trust in Hashem

We who thought negatively even for a moment of going into sukkah w rain.... we can learn huge lessons from Rabbi Rubashkin.

IY"H before simkhat torah somehow Hashem will allow him to be released.

simple jew, let's see if you're right.
if he's not released by simkhat torah, we can conclude either that there's no Hashem, or that Hashem exists and is totally cool with the idea of Rubashkin doing time to pay for his crimes.

simple jew

I am in awe of his trust in Hashem

if he really believed that he would not have committed fraud or maybe he has a distorted believe in hashem

Shymarya;

Good summary. Well said.

Its a draconian sentence, most agree but fixing the problem belongs to Congress, not the Courts.

Death to the West!!!
My name is Borat

am in awe of his trust in Hashem
Posted by: simple jew

i'm in awe of all the investors who trusted in madoff.
i'm also in awe of all the idiots who believe in scientology, mormonism and many others.

so....heres a list of 10 reasons why the case wont be heard.

god either:

1. decided that SMR should suffer for our sins.

2. hates con-artists

3. forgot to check the SCOTUS calendar .

4. was busy trying to find a way to stop millions of kids from dying every year.

5. hates chabad

6. is an anti-semite

7. can't override U.S. sentencing guidelines.

8. was "busy" with 72 virgins.

9. was waiting for SMR TO APOLOGIZE OR SHOW SOME CONTRITION!

10. is just a figment of human imagination.

It's funny that you don't mention Clement, isn't he also part of the "Rubashkin Conspiracy"?

Jack: While I have had arguments with Shmarya's version of the facts in the past, in this case, he posted actual court documents for us to read. Had you read those, you would know that the issues you raise (new evidence, fairness of the trial) were all discussed in the Court of Appeals decision affirming the trial court's verdict, judgment, and sentence. Therefore, the only thing SMR could ask the Supreme Court to do was review and then overrule what the appeals court had decided.

Posted by: Jack | October 03, 2012 at 10:59 AM
You wrote; “the petition to the supreme court was not to ask the supreme court to order a new trial but to rule if new evidence about the fairness of the trial (and not only evidence of innocence) are sufficient to grant a new trial.”

Are you an idiot?
Shmarya wrote basally the point, which any person with the ability to read would understand the argument before the SCOTUS

“1. Is based on two claims: a) "new" evidence unavailable before trial proves the trial judge should have recused herself”

and which the Court considers sufficiently important, such as cases involving deep constitutional questions

It is a shame that the court does not consider a person receiving an unjust sentence because the system is broken to be important.

The current method of arriving at prison terms is flawed and if te courts cannot fix it then who?

The legislature

IY"H before simkhat torah somehow Hashem will allow him to be released.

I believe this would have to involve a jail break.

Talmud is pretty clear I think on this - we are allowed to believe that HaShem can and does work outside the natural order of things, but that it's rather inappropriate to ask Him to do so.

Let me know if you need the citation - I am at work or would provide it here.

and which the Court considers sufficiently important, such as cases involving deep constitutional questions

It is a shame that the court does not consider a person receiving an unjust sentence because the system is broken to be important.

The current method of arriving at prison terms is flawed and if te courts cannot fix it then who?

Posted by: Blima | October 03, 2012 at 01:37 PM

the problem is the petition never claim that thy claimed another issue

@jack,
you are an idiot . you are off .
you must be a chabad sect member . so, do not hide behind a secular name 'jack' .
you are a jack ass . that's why you chose
jack as a screen name . post your real stupid name : mendel or menachem mendel .

who cares what you think . you cannot win , cuz you think chabad . no chance, even if you are right . unfortunate, but that's the way it is . accept it .

...'there could not be a new evidence '...
the evidence is crystal clear . no games .
SCOTUS will not pull up something from the trial to compromise it . if that what you want . it won't happen .

...' the fairness ' of the trial . you want SCOTUS to agree that the trial was unfair . the trial and the 27 years sentencing was very fair . the bastard, sholom rubashkin, who has no respect for human life , deserves his 27 years sentence , which was calculated very carefully by counts and sets of counts that applied a sentencing terms , once all calculated , it came up to 27 years .
no monkey business . we are not in russia here , where judges do whatever they want .
go back to 770 . you live in your own world , a sectarian world , where your ppl make their own laws . be aware that secular laws are the LAW OF THE LAND .
not the chabad law . chabad does not follow the conservative , conventional jewish laws , anyway . chabad makes their own . this is UNacceptable .

that's why you think that way , bc you think with your chabad mind .

sholom rubashkin is 300% guilty . no new trial based on ANYTHING can be considered .

sholom rubashkin refused to plead guilty with 12 years sentence . he missed his chance . let him sit in his own mud for 27 years .

There is such a thing as common law, and humane law, which should be taken into consideration, the US Code --- while acknowledged and respected --- is not the be all to end all.

If Rubashkin would have done the same finanacial crime in Canada he would have gotten maximum in the single digits; same in most places in Europe.

In addition there are humanitarian grounds why the sentence is excessive.

Even if you hate Lubavitch, think they are a Jewish/Christain cult, or for that matter even if one is Anti Semitic or Charedi etc. most people agree the end result was too excessive even if SMR gambled and lost when he turned down the 12 years offered.

So let's hope Obama towards the end of of his 2nd term will cut him loose while not pardoning him.

@jack,

sholom rubashkin was lucky in his 1st immigration trial . everyone knew he was guilty. he should have had 50 years , but got away with it .


the same way you want a new trial for his financial fraud trial , i want a new trial for his immigration trial .

The frumma are constantly saying the worst things about Obama.
They all proclaim they are voting for Romney.
The frumma donate nothing to the Democratic Party.
The frumma vote means nothing on the national level, and almost nothing on the state level.
So maybe one of you frumma who kisses Rubashkin's tuches could please explain why Obama should pardon this filthy criminal who still shows no remorse.

why Obama should pardon this filthy criminal who still shows no remorse.

Because Florida is close..........

sholom rubashkin was lucky in his 1st immigration trial . everyone knew he was guilty. he should have had 50 years , but got away with it .

1. Sholom Rubashkin did not have a "first immigration trial" or any other immigration trial.

2. If you mean the state's poorly conducted child labor trial, yes, it was clear children many worked in Agriprocessors. But because of a loophole in the law, a bad judicial decision, and mistakes by the state's prosecution team, Rubashkin was not convicted because it could not be proved that he specifically knew about any of the individual children working there.

(The state could easily prove Rubashkin had failed to do his required due diligence and that any reasonable person should have known kids were illegally working in Agriprocessors. But Iowa's law was so poorly drafted that Rubashkin was not convicted. To prevent that from ever happening again, after the trial the state legislature changed the law to plug the loopholes Rubashkin used.)

And how many frumma would actually vote for Obama next month, based upon a possibility of a pardon? And how many such frumma can be counted on in Florida? The numbers aren't there.

Even with the Squarer deal with Hillary, she got about 20,000 votes from the Squarer. She won the election by about 800,000 votes. I truly believe the deal wasn't about votes; it was about money.
We can only guess how much the Squarer Mafia donated to Hillary.

How much of a donation to Obama will it take for a pardon? Probably about 25-50 million? Just my guess.

WoolSockCotton:

Marc Rich might know the answer.

Norm, true. The Squarer Rebbe would also know.

There is such a thing as common law, and humane law, which should be taken into consideration, the US Code --- while acknowledged and respected --- is not the be all to end all.
. . .
Posted by: Flatbusher | October 03, 2012 at 02:39 PM

First of all, the expression is "be-all and end-all."

Second, please don't think Google is a substitute for law school or for that matter, even an elementary civics class.

The purpose of codifying law is to replace the common law. So, for example, at English Common Law, the crime of burglary required the elements of "breaking and entering." Under the New York Penal Law definition, for example, this is not required. This is just one example of where common law is irrelevant.

Next, as to "humane law," I have no idea what you are talking about unless you mean the law regarding cruelty to animals.

The statement that ". . .the US Code-while acknowledged and respected-is not the be all to end all" is just silly.

You know when the United States Code is not final? When a portion of it is declared unconstitutional.

Here is something you should have picked up by the end of high school. It's called the Supremacy Clause, from Article VI of the Constitution:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." [emphasis added]

For some reason Paul Clement does not make it onto the list of "Rubashkin Conspirators"

For some reason Paul Clement does not make it onto the list of "Rubashkin Conspirators"

Posted by: Menachem | October 03, 2012 at 04:39 PM

Clement's role – other than lending his name and drafting the SCOTUS cert petition, was minor.

He came very late to the game and was brought in because his name recognition and political background and contacts might have swayed some of the conservative justices to hear Rubashkin's case. (The liberal justices were more likely to have voted to hear the case not matter whose name was on the petition.)

He did not initiate the lies and misrepresentations. He was the guy stuck trying to work around them.

Posted by: Menachem | October 03, 2012 at 04:39 PM

At any rate, the point is that you can go back and see step by step how Lewin, Guy Cook, Dershowitz and the others misrepresented the facts, deceived people like you, and quite frankly did things that should have brought them censure from the Bar. Unfortunately, the Bar isn't good at policing itself, and you pretty much have to get caught stealing or suborning perjury to get disciplined.

Too bad all those millions used to pay the lawyers for a hopeless cause, and all the millions used to bribe the influential people who signed their names to something they didn't look deep enough into, and all the millions used on the PR campaigns to make speeches, post ads, create "a documentary" (a PR misrepresentation full of lies and ommissions), and now the millions that will be paid to try to get him a presidential pardon - too bad all those millions weren't just paid back to the bank, together with an apology, so that SMR could get a significantly lighter sentence, and possibly have been out of jail by now.

If you read the dillusional words SMR wrote to his kids after the verdict yesterday (link posted as first comment above, by Local resident | October 03, 2012 at 10:33 AM), you can get a glimpse into the head of SMR. God is going to come swooping in to save him tomorrow. Yup. And he's still promising his kids he'll dance with them by the end of the week. No thoughts about MAYBE I MADE A BIG MISTAKE BY THUMBING MY NOSE AT THE GOVERNMENT AFTER STEALING AND DEFRAUDING. No instructions to his "Kinderlach Sheyichye" (kids, who should live) about being truthful and honest in business and how sorry he is that he made mistakes that wound him in jail which is why he can't dance with them (even at the end of the week). No apologies for the millions of dollars of Tzedakah (charity) funds wasted ON ONE MAN and the hopeless cause of it, all due to years of fraud. No, it's all the government's fault. So much for a lesson in personal responsibility. They say that everyone in jail is innocent. I guess SMR fits right in.

But my favorite part in his letter is where SMR talks about "hester ponim" - thinking God is playing "Hide & Seek" with Him. Would someone please inform SMR that God likely has better things to do than play "Hide & Seek" with someone who has committed one of the biggest chillulei Hashem in recent memory, and who keeps adding insult to injury by getting his name into the newspapers, and making "documentaries" full of lies, etc. Tell SMR that God "Just Said No" and asks that he stop making a chillul Hashem.


Unfortunately, the Bar isn't good at policing itself, and you pretty much have to get caught stealing or suborning perjury to get disciplined.

Posted by: Shmarya | October 03, 2012 at 04:59 PM

I got that you don't like lawyers but this comment is far removed from reality at least as far as those of us who practice in New York are concerned. By the way, here, where it seems many of your commenters live, we certainly don't "police ourselves." The courts do it for us!

Clinton may have pardoned Rich in a financial quid pro quo, but Obama will never pardon Rubashkin because every night he goes to bed with a Jew hater.

Posted by: Shmarya | October 03, 2012 at 04:59 PM

Well, regardless of what the reason of his appointment was, Clement is ultimately responsible to the briefs that he signed on to.

To me it appears that you are attacking those individuals who you believe you can challenge their credibility, it would be ridiculous to challenge Clement as a propagandist.

Menachem, why should he attack someone who's credibility is not in issue?

To me it appears that you are attacking those individuals who you believe you can challenge their credibility, it would be ridiculous to challenge Clement as a propagandist.

Posted by: Menachem | October 03, 2012 at 05:38 PM

The reason it appears that way to you – besides your overwhelming bias – is that you don't understand the legal process and you didn't read the previous things I wrote about Clement.

To put this in an exceedingly simple way for you, Clement's job was to argue based on the previous arguments Lewin and Cook had made in court and to the appeals panel.

It was not his job, and it was not within his rights, to re-litigate the case.

He took the pile of shit Lewin and Cook left him and did the best he could with it.

So a minimum of four of the nine Justices are required to grant a writ of certiorari. Who would have been the Justices most likey to vote for and vote against the writ, would anyone like to venture an educated guess? (Excluding Kagan who recused herself.)

thank g-d lewin and cook left a lot of shit to clement . otherwise ru/bash-him
would have won something by now

"every night he goes to bed with a Jew hater."

I didn't know that Mrs. Obama was a "Jew hater". What actions has she done to deserve this title?

"""

"every night he goes to bed with a Jew hater."

I didn't know that Mrs. Obama was a "Jew hater". What actions has she done to deserve this title?
""""

Well I don't know about that... but I cannot imagine any Black having any sympathy for some White slave plantation owner mentality.

They threw the book at him because he dared them to.

B"H

Rebitzman

Please cite the source you refer to.

It is not comprehensble to me to daven for miracles if that is what it takes to help an overall good decent yid.

Maybe the miracle is that justice was done.

Korbendallas 11:01 and 11:17, excellent points.

yawwwwn, good morning all,; oi another day to spend dreaming of reb schneerson our beloved messiah and to write to all of you from my home in otisville. what bliss. sholom.

Thanks WSC

Ignorance is bliss, right bessie?

To the simple jew:
You must have read SMR letter yesterday to chabad, you think alike. It will take more than a miracle, maybe he should have thought of not hurting so many private people and businesses, maybe Hashem wants to show him that his power he used with the money that went through him was for the wrong reasons, and this is why he fell.

The money that SMR made through lying, cheating, abusing, swindling, and stealing is now all being 'oisgekrenkt' on lawyers' bills.

Money you did not deserve, and that you gained by violating Torah, will not remain in your possession for very long.

My parents told me this many years ago, and it is still true.

There was an AP report a few days ago about a settlement the family of the Red Bull heir paid in a wrongful death case:
http://www.huffingtonpost.com/2012/09/26/vorayuth-
yoovidhya-settlement-_n_1915737.html?utm_hp_ref=world

The AP writer mentions "It is not uncommon for the rich and privileged to get away with crimes in Thailand." I am reminded of all the Rubashkin fundraising posters, copies of which can be found here on FM. I wonder if the family thinks they are "rich and privileged" enough to get away with this fraud.

As for all the folks who got pressured into giving money at the fund-raising rallies, it reminds me of all the German promoters taking advantage of German immigrants 50 years ago. Same old scams, different day.

B"H

First I notice Rebitzman has not come up with the source for me....

Second- do you know what it means to have 86 federal judges (former) and DOJ officials to sign on to the Amicus brief?

Third- using 1921 law against SMR that was NEVER IN HISTORY used against anyone is more than nuts. Shmarya - I don't think you have ever addressed that issue. I know you will attack me and my view but why not address one thing here - the concept of using a 1921 Federal Law for the first time against a defendant. Does the word vendetta come to mind? What do you think would lead to federal prosecutors to use laws that no one even knows exist to bring someone down?

Another Chabad scam:

http://www.crownheights.info/index.php?itemid=47362


Simple Jew:
It's over. Your hero WILL serve his 27 years in prison. The lies you've been told do not apply outside of Crown Heights.
CERTIORARI DENIED.
27 YEARS!
Why? Because God said so.

Second- do you know what it means to have 86 federal judges (former) and DOJ officials to sign on to the Amicus brief?

Third- using 1921 law against SMR that was NEVER IN HISTORY used against anyone is more than nuts. Shmarya - I don't think you have ever addressed that issue. I know you will attack me and my view but why not address one thing here - the concept of using a 1921 Federal Law for the first time against a defendant. Does the word vendetta come to mind? What do you think would lead to federal prosecutors to use laws that no one even knows exist to bring someone down?

Posted by: Simple Jew | October 04, 2012 at 03:35 PM

There's simply no excuse for your idiocy.

1. It was 6 former AGs, not 86, and what they signed means nothing if they didn't read the court documents and transcript before signing.

But they didn't do that. They relied on information given to them by a surrogate for Lewin and Rubashkin – and that info was not, shall we say, completely accurate.

2. That law was prosecuted civilly many times. It was prosecuted criminally once, because a) there were more than 150 criminal charges like bank fraud and money laundering to prosecute against Rubashkin and it made more sense to add the cattle charges on to those than it did to have a separate civil action. Past that, the cattle charges didn't add any time to his sentence. The feds only brought the cattle charges to trial because the fraud Rubashkin committed was in part committed by (and demonstrated by) his violations of cattle law.

I've made both these points many times, including in response to previous stupidity from you.

Let me repeat: There is no excuse for your continued idiocy. You need mental health counseling.

Is it realistically really possble that Rubashkin could still be sitting in a jail in the year 2039?!

Is it realistically really possble that Rubashkin could still be sitting in a jail in the year 2039?!

Posted by: Yissachar | October 05, 2012 at 12:08 AM

No, the radiation will have killed him long before then.

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