Rubashkin may face term up to 27 years
Des Moines Register
Postville, Ia. — Former eastern Iowa meat plant executive Sholom Rubashkin could face 21 to 27 years in prison for his role in a massive financial fraud scheme, a federal prosecutor said Wednesday.
Prosecutors plan to recommend a prison sentence that would range from 262 to 327 months, according to court papers filed by Assistant U.S. Attorney Peter Deegan Jr.
The suggested sentence — which a judge can accept or ignore — is based on federal guidelines that consider the number of victims, Rubashkin’s specific role in the crime and other factors.
Rubashkin was convicted in November of 86 counts of financial fraud for his role in the bank- and document-fraud scandal at Agriprocessors Inc. The plant’s former vice president is expected to challenge his convictions before the U.S. 8th Circuit Court of Appeals.
Agriprocessors Inc. was the site of a May 2008 immigration raid that led to the arrest of 389 illegal workers. The plant then slipped into bankruptcy, and has since come under new ownership as Agri Star.
The relevant section from the Government's filing:
…Defendant has now been convicted and faces many years in prison. Pursuant to the advisory United States Sentencing Guidelines, defendant’s base offense level for the counts of conviction is 7, pursuant to USSG §2B1.1(a)(1). Even if the loss in this case were limited to the approximately $10,000,000 in fake collateral which existed at the time of the bankruptcy, the result is a 20 level enhancement under USSG §2B1.1(b)(1)(K).8
In addition, defendant’s sentence should be enhanced 2 levels for an offense involving 10 or more victims (USSG § 2B1.1(b)(2)(A)), 2 levels for use of sophisticated means (USSG § 2B1.1(b)(9)(C)), 4 levels for role in the offense (USSG §3B1.1(b)), 2 levels for abuse of a position of trust (USSG §3B1.3), and 2 levels for obstruction of justice (USSG §3C1.1). This would result in a total offense level of 39. Assuming a criminal history category I, defendant is facing an advisory guideline sentencing range of 262 to 327 months. Defendant is 50 years old.
8The government anticipates the loss will be in excess of $20,000,000 resulting in a 22 level enhancement under USSG §2B1.1(b)(1)(L). Based upon the detention record evidence, defendant is subject to additional enhancements including enhancements for role in the offense and obstruction of justice.
With a likely sentence of at least 21 years in prison without the possibility of parole, defendant has a far greater incentive to flee than before. In addition, with all pending charges having been disposed of by trial, defendant has far less of an incentive to appear for court. All that remains is the determination of defendant’s sentence.
In addition, defendant violated his previous conditions of pretrial release by committing bank fraud, attempting to obstruct justice, and tampering with evidence. In a January 28, 2009, Order granting defendant’s appeal of the Magistrate Court’s order of detention, the district court found “there is probable cause to believe Defendant committed a federal crime, Bank Fraud, while on pretrial release.” (Document #199, p. 16). Since that time, new evidence of defendant’s attempts to obstruct justice came to light and were made part of the record at trial or at defendant’s post-trial detention hearing. All told:
• Defendant assisted others in obtaining false identification documents the week prior to the May 12, 2008, immigration raid. (Trial Testimony Laura Althouse).
• Around the time of the immigration raid, defendant gathered up the I-9s, signed by Ben Chaim, for the employees with obviously fake identifications who had been placed on the separate payroll. (Trial Testimony of Laura Althouse).
• Defendant assisted and funded Shlomo Ben Chaim’s flight to Israel in the wake of the May 12, 2008, immigration raid (Ben Chaim was the individual defendant had sign the I-9s for the undocumented aliens placed on a separate payroll). (11/18/09 DH Tr. 104-108).
• Defendant encouraged and funded poultry manager Hosam Amara’s flight to Israel in the wake of the May 12, 2008, immigration raid. (11/18/09 DH Tr. 96- 104).
• Defendant attempted to influence other targets of the criminal investigation by promising to pay them for any years they spent in prison as a result of their criminal conduct. (Trial Testimony of Laura Althouse).
• The day before his initial arrest on October 30, 2008, defendant gathered up evidence of the diversion of customer payments (a thumb drive containing a spreadsheet and copies of diverted checks) from April Hamilton. (Trial Testimony of April Hamilton).
• The day after his initial arrest, while on pretrial release, defendant directed April Hamilton to delete customer payments from Agriprocessors’ computer accounting system which had not yet been posted. (Trial Testimony of April Hamilton).
• Near the time of defendant’s initial arrest, defendant gathered up the hard copies of the fake invoices (and attached bills of lading) Darlis Hendry had created at defendant’s request. (Trial Testimony of Darlis Hendry).
• On November 5, 2008, while on pretrial release, defendant instructed Wendy Torson to shred Agriprocessors’ copies of statements sent to certain customers (statements which reflected the actual amounts owed by those customers and which were inconsistent with information sent to the bank). (Trial Testimony of Wendy Torson).
Defendant’s violations of law while under court supervision, and his repeated attempts to obstruct justice, evidence a likelihood defendant would violate conditions of release. When considered in conjunction with defendant’s previous preparations to flee and his enhanced incentive to flee, the district court correctly found defendant to be a flight risk.…
The entire government filing, the Government's Memorandum in Resistance to Rubashkin's Appeal, as a PDF file: