Rubashkin Attorneys Moving Forward With Appeal
by Debbie Maimon • Yated Ne'eman
Chanukah has come and gone. For some of us, the days flew by in a whirlwind of celebration and activity. But not for everyone. For Sholom Mordechai Rubashkin, waiting patiently in an Iowa jail while a court of appeals weighs a judge's decision not to grant him bail, time seemed to be crawling.
After prolonged negotiations with various prison officials, Aleph Institute, a Florida-based organization that offers services to Jewish prison inmates, won permission for Sholom Mordechai to light Chanukah licht. In view of the regulations forbidding fires of any sort, and the vehement opposition they encountered from officials, the granting of special permission was embraced by the Rubashkin family as a miracle in its own right. It buoyed their trust in Hashem for a full yeshuah.
Each night of Chanukah, a guard escorted Sholom Mordechai from his cell to a cinder-block room. There he lit his menorah and was given an hour's respite to gather his thoughts and daven, while gazing into the tiny flames as they lit up the bleak surroundings.
In a lengthy interview with Yated, attorney Guy Cook, who appealed Judge Reade's bail decision, says that justice moves slowly but he is very hopeful that the bail denial will be overturned in the coming days. He mentioned the strong arguments in the motion filed last week.
“We're talking about someone for whom 43 people offered their homes as guarantees that he wouldn't flee. That's over 8 million dollars in equity. Rabbis came forward to offer their synagogues' holy scrolls worth hundreds of thousands of dollars as collateral. Guarantees of this magnitude are simply unprecedented.
“People don't put themselves on the line to such a remarkable extent unless the person they're vouching for has earned that kind of trust,” Cook added. “Reason dictates that such a person would never betray his friends, and would never dishonor himself by fleeing.”
The attorney said that the court of appeals was asked to note that in just a couple of days after the jury's verdict, well over a thousand letters to Judge Reade poured in, testifying to Sholom Rubashkin's trustworthiness in keeping a promise.
The court was also asked to look at the ten months of bail compliance he had already demonstrated in the months leading up to the trial, as well as the extra guarantees his lawyers had offered. These included an electronic monitoring ankle bracelet and home detention, as well as 24-hour armed surveillance at the Rubashkins' expense.
Defense Counsel Takes Yated Behind The Scenes
Guy Cook shared his perspective with Yated on some of the key issues in the case, particularly as they pertain to the appeal now being drafted by Sholom Mordechai's new legal team. Cook is working with noted Washington attorney Nathan Lewin and other lawyers on the appeal, which can be filed only after a sentence is handed down. That could take another month.
Cook said he is troubled by what he calls the “duplicitous, dishonest” tactics used by the prosecution which he feels robbed Sholom Rubashkin of a fair trial. He cited the abuse of the grand jury system; the trick of massively inflating the indictment; intimidating and manipulating witnesses; and prejudicing the jury against the defendant by cloaking non-criminal offenses as serious felonies.
Equally destructive, he said, was the prosecution's sneaking in three days of immigration-violations testimony, after Judge Reade had earlier ruled that immigration charges could not be mixed in with the bank fraud trial.
It's an old trick and it worked like a dream, Cook said. Incriminate the defendant on an unrelated matter, and the job of convicting him on the charges he's standing trial for becomes much easier.
Cook slammed the prosecution for the “shock and awe tactics” in creating a sweeping 163-count indictment that he said overwhelmed the jury.
“Where did this astounding number come from? If you look into the counts, you see that they consist of a very small number of charges that were duplicated and subdivided again and again. It's as if I were arrested for J-walking, and was then charged separately for each and every step. That's what the government did with the bank fraud charges. A single charge sliced up into 86 pieces.”
Jacking up the counts to a shocking number was “duplicitous,” he said, because it wrongly prejudiced the jury, making it easy for them to view Sholom Mordechai as a criminal. It also guaranteed that a guilty verdict would bring in a long prison sentence.
How Non-Crimes Became Federal Felonies
Cook said the problem facing the prosecution was that the evidence didn't support the sinister image they wanted to project of Sholom Mordechai as an arrogant lawbreaker. It was necessary to stretch the truth, to dress up non-crimes as federal felonies in order to win a conviction.
And it was necessary to position Sholom Mordechai as the mastermind who orchestrated the practice of the so-called “fake invoices,” which then became the prosecution's “smoking gun.”
Sholom Mordechai testified that while he knew about the inflated invoices, he did not generate them. They were part of a system put into place before his tenure as manager of the company began, and were perpetuated by Agri's financial department under CFO Yom Tov Bensasson and CPA Mitch Meltzer. Both men advised him that the system was acceptable to the bank.
Earlier this year, Bensasson and Meltzer pleaded guilty to bank fraud. At the trial, they were the prosecution's two lead witnesses against Sholom Mordechai, shifting the blame for the invoices onto their former boss and friend.
[Under cross-examination, Bensasson admitted to having agreed to testify against Sholom Mordechai in return for a “deal”--a reduced sentence. Like most of the other prosecution witnesses, Bensasson was not told what that sentence would be until after the trial. The tactic ensured that he would earn his “reward” by performing well on the witness stand.
Other witnesses admitted under cross-examination that they were coached and warned about how to answer questions, and to focus their testimony on Sholom Mordechai alone. Their plea deals were apparently “performance-based” -with the reduced penalty or punishment to be handed down only after the trial, according to how well the witness stuck to the “script.”]
Bank To Agri: Don't Bother Me With The Details
What are the true facts regarding the “fake invoices”? What was their precise function and were they in fact illegal?
Shedding light on a misunderstood aspect of the case, Cook explained that these invoices from AgriProcessors inflated the company's receivables. They provided documentation the lender bank required to justify to its investors the ongoing deal they had with the meat-packing plant. The deal provided Agri with loans from a $35 million credit line, in return for exorbitant interest rates that enriched the bank to the tune of millions of dollars.
So profitable was the arrangement for the bank that their officials chose not to look closely at Agri's paperwork, or to conduct even the most basic GAAP audit (a widely accepted set of procedures for reporting financial information).
“The reviews they did conduct were so superficial, they were a joke,” said Cook. “Imagine bank auditors driving by Agri and calling out “Hey you guys, how's business?” “Great!” someone answers. “That's mighty fine, keep it up fellas!” the auditors yell back and drive on.
“Of course that's a simplification. But it gives you a pretty accurate idea of how casually the bank ran things with Agri. The question is: what was behind this lackadaisical policy, this unspoken policy of “Keep the payments coming and don't bother me with the details?”
Invoices Treated Like Paper Money
“The answer,” says Cook, “is they didn't look too closely because they didn't want to upset the apple cart. They were making a killing of this high-interest loan, the payments came in reliably and that's all that mattered. So the invoices were like the paper money you use in Monopoly. You know it's paper money and the other players do, too. There's no deception involved.
Observers may wonder, does it really matter what the bank knew or could easily have known about the inflated invoices? Isn't the very act of creating false invoices itself illegal? The answer, says attorney Cook, is no. It is only illegal if the one who wrote the invoice intended to mislead (defraud) the other party.
This issue--the question of “criminal intent”--cuts to the heart of the charges against Sholom Mordechai. The prosecution claimed the creation of padded invoices clearly proved his intent to defraud.
Yet two leading CPAs, one from Brooklyn and the other from Iowa, took the stand to testify that after studying all available data, they were convinced there was simply no way the bank could not have known about the inflated receivables. The inconsistencies were so glaring, any layman would have spotted them.. To claim the bank was deceived totally defies common sense, the accountants said.
Defense Counsel: Errors From The Bench Cost Sholom Mordechai A Fair Trial
But the CPAs' testimony--so crucial to the defense--never reached the jurors. Judge Reade ruled that the testimony was inadmissible and sent the jury out of the room. Her reason? “It's not the bank who is on trial.”
“The judge clearly erred in not allowing their testimony,” said Cook's co-counsel Montgomery Brown. Reade compounded that error with other one-sided rulings, such as the barring of witnesses whose testimony disproved the allegations of money laundering.
Brown said a number of witnesses traveled to Sioux Falls to testify that they had received tens of thousands of dollars in charity from Sholom Rubashkin, to help them through a crisis or in times of need. Their testimony collapsed the prosecution's allegations that the defendant had pocketed extra funds from the business for his own use, tried to “launder” it through the Jewish school, or use it to buy false papers for undocumented workers in his plant.
Yet these witnesses, too, were silenced. The prosecutor's repeated shouts of “Objection, 403!” (legal abbreviation for “Objection to testimony that might sway the jury by arousing sympathy for the defendant!”) were sustained. The jury was instructed to leave the room while the witnesses testified to an empty courtroom.
Bogus Charges and Red Herring
The prosecution tried every possible avenue to criminalize Sholom Mordechai, alleging that he had misused Agri funds to buy jewelry and that “a cache of valuable coins” was purchased by him and sent to a strange address.
In addition, prosecutors charged that money that should have been paid directly to the bank was diverted to other sources and once again, “money-laundered.”
One by one these bogus charges were punctured. Guy Cook produced the cancelled checks that showed that Sholom Mordechai had docked certain amounts from his paychecks as repayment of money borrowed from Agri to buy engagement gifts for his son's kallah.
The mysterious “valuable coins” turned out to be nothing more than a supply of silver dollars he had bought to be used in shul for pidyon habens and other occasions.
Montgomery Brown showed how the money-laundering charges were false, inasmuch as all payments reached the bank, although not always punctually on the due date. “At the very most, you might call the late payments a breach of contract,” said Brown. “To call it money laundering is misleading and untrue. It's simply a red herring.” [i.e. it diverts attention from the main issue.]
Why then did the prosecution employ the term “money-laundering”? “For the same reason they used emotionally charged language like “cheating,” “stealing,” “lying” and “masterminding” to describe non-criminal behavior, Cook said. “Because even though it's misleading and manipulative--and we feel we exposed that--it still impacts a jury.”
Being Forced To Box In A Telephone Booth
By barring the most important defense witnesses, Cook said that Judge Reade in effect prevented Sholom Mordechai from having his day in court. “It was like having to box in a telephone booth with your hands tied behind you. Even if you could free your arm, how could you defend yourself? How could you land a punch?”
Cook recalled the frustration of having a strong defense crippled by unreasonable and prejudicial rulings from the bench. He said that by allowing the prosecution to hammer away at immigration violations for three days, Judge Reade violated her own ruling and as much as guaranteed that a fair trial was impossible.
Reade ignored Cook's objections, and his warning that he would call for a mistrial if the improper testimony continued. She allowed the proceedings to continue, as Cook called for a mistrial not once but three times during the next three days. Yet there was no way to prevent jurors from being inundated with prejudicial testimony of witnesses who had been coached to point to Sholom Rubashkin as the person responsible for every violation in question.
The judge's suppression of testimony vital to the defense; allowing the prosecution's litany of immigration testimony against Sholom Mordechai; and the pumping up of an indictment to an unjustified number of counts to prejudice the jury, are some of the key arguments in the appeal that is currently being drafted, Cook told Yated.
“We look forward to presenting these arguments to the court of appeals, he said. It will take time… but we hope justice will finally be served.”
“We Beg You Not To Destroy...”
He also described the cross-examination of an ICE official who acknowledged receiving a letter from Sholom Mordechai a number of days prior to the raid. The letter pleaded with the government not to raid the meat-packing plant, and asked for a federal overseer to help resolve the company's immigration issues peacefully. The letter promised Agri's full, wholehearted cooperation.
“We beg you not to destroy a company that gives jobs and sustenance to so many people, and that contributes so much to the production of kosher meat for hundreds of thousands of people across the United States,” the letter said.
“Did you receive this letter from Sholom Rubashkin in the week prior to the raid?” Cook asked the ICE official.
“I did,” he replied.
“What did you do about it?”
“We took no action on it.”
“In other words, you ignored it?
Those where his instructions, the official said.
ICE Trying To Boost Arrest Statistics?
Why did ICE prefer a raid over peaceful negotiation and resolution, asks Cook. He answers his own question: “They wanted big action with splashy theater.” But this only leads to a string of deeper “whys.”
Why throw millions of dollars into an operation that isn't necessary just to make a splash? Why destroy a town, uproot families and tear apart so many lives? Why pick a kosher meat-packing plant in the middle of nowhere?
Some say that higher ups in ICE needed to justify a massive budget for an organization that was primarily designed to guard America's borders from dangerous terrorists. Showing an impressive record of arrests and convictions creates the illusion that ICE is keeping Americans safe.
The problem is that criminality and terrorism do not provide enough daily business to maintain the readiness and muscle tone of this expensive force. For example, according to statistics published in the NY Times, in 2007, ICE criminal investigations resulted in 164 arrests and 91 convictions. Terrorism related arrests were not any more substantial.
The real numbers are in immigration: During the same year, ICE removed 276,912 illegal aliens. ICE is under enormous pressure to turn out statistical figures that might justify a fair utilization of its capabilities, resources, and ballooning budget.
Simply put, the criminalization of illegal workers may just a cheap way of boosting ICE arrest statistics, with no regard whatsoever to the vast human wreckage such tactics leave in their wake.
A Private Glimpse
Although both Guy Cook and Montgomery Brown chose their words very carefully in their interviews with Yated, one can sense the outrage they share with Sholom Mordechai and his family over a judicial process that demonized an innocent man. “We spent hundreds of hours with this person.” Brown says. “We got to know him well. We regard him very highly.”
The government's excessively harsh, unreasonable treatment of Sholom Mordechai defies understanding, Guy Cook says.
“They bring him to bail hearings in an orange prison jumpsuit, handcuffed at the wrists and at the waist, with leg shackles. What are they afraid of? That he'll take a flying leap over the balcony and make a run for it in his orange prison clothes and handcuffs? It's ridiculous beyond words. I asked them to please remove the chains. They took off the handcuffs. But that was it.”
He marvels at the strong faith that is carrying Sholom Mordechai through a nightmare. He relates that during the trial, he, his co-counsel and the Rubashkins all stayed in the same hotel, where he glimpsed a more private side to his client.
“One morning I got up unusually early and took the elevator downstairs to the conference hall to get some work done,” Cook recalled. “Getting out of the elevator, I heard some humming or mumbling in one of the rooms adjoining the hall. I stuck my head around the corner to see what it was.
“It was Sholom, praying alone in a corner of the room. I just stood there watching him… This man's faith is real. In spite of everything he's gone through and is still going through, he's holding on. His focus is not on this motion or that motion. His focus is his faith. He feels he's following the path G-d has chosen for him. He'll continue on that path no matter what.”
[Hat Tip: Neighbor Girl.]