…Sholom Rubashkin is not John Dillinger, although he has been treated as if he were. He has been a law-abiding businessman who, according to the prosecution’s dismissed allegations, knew that employees at his meat-processing plant were illegal aliens and, according to the jury’s verdict, participated in conduct that misrepresented to his single lender the true value of the security for his business loan. He is surely entitled to the due process that federal law affords in contesting these charges, but his treatment by the prosecution and the District Court has been reminiscent of Lewis Carroll’s Queen of Hearts: “Sentence first, verdict afterwards.”…
Moreover, incarceration in prison rather than effective arrest at his home imposes severe hardship on Mr. Rubashkin because of the stringent demands of the religious observance of Orthodox Judaism that severely limit one’s diet and prescribe prayer and other rituals. Nor is a prison term a foregone conclusion. There are very substantial reasons to challenge on appeal a trial in which evidence of immigration-law violations – which the District Judge said presented a “real and concrete danger” to a fair trial on the bank-fraud allegations – were presented to a jury selected from a vicinity of highly inflammatory publicity. Defense evidence was also improperly excluded and instructions to the jury were erroneous.…
Given his meticulous – indeed, religious -- adherence to the conditions of release heretofore imposed, the conditions of release that governed Mr. Rubashkin’s release pending his trial are demonstrably adequate to assure his presence throughout the remainder of this proceeding. No specific reason has been stated by the prosecution for concluding that these conditions are now inadequate, and the District Court never addressed the sufficiency of these conditions. These pre-existing conditions are augmented by the following (also proffered below):
(1) 24-Hour Armed Guard – Global Security Services of Davenport, Iowa, submitted a letter proposal for an armed guard to be stationed 24 hours a day at Mr. Rubashkin’s home, where a camera system would also cover the exterior of the house. Exhibit 11. Mr. Rubashkin would be arrested and held by the armed guard if he ever tried to leave his home without prior authorization. Payment for the service would be made far enough in advance that the service could not lapse without ample advance notice to the prosecution. Exhibit 11.
(2) Forfeiture of Valued Torah Scrolls – Torah scrolls have been offered as security by seven rabbis. Exhibit 13. This is an extraordinary sign of confidence by the community in Mr. Rubashkin’s promise to appear as required. See Exhibit 9, p. 35.
(3) $8 Million in Friends’ Property – Family, friends, and associates are ready to provide their homes as security for Mr. Rubashkin’s appearance. Exhibit 14. He will, of course, add his home’s equity if the Court determines that this form of security is required to assure his presence.…
[C]ourts have released defendants over government objection prior to conviction on far more aggravated circumstances and greater likelihood of flight than is presented by the record of this case. And the conditions of release in these other reported cases have been equal to, or less extreme, than have been proposed by Mr. Rubashkin. See, e.g., United States v. Madoff, 586 F. Supp. 2d 240 (S.D.N.Y. 2009); United States v. Dreier, 596 F. Supp. 2d 831 (S.D.N.Y. 2009); United States v. Chavez-Rivas, 536 F. Supp. 2d 962 (E.D. Wis. 2008); United States v. Demmler, 523 F. Supp. 2d 677 (S.D. Ohio 2007).
For the foregoing reasons, this Court should reverse the detention order of the District Court and should order the release of Mr. Rubashkin pending sentencing on the same conditions as governed his release pending his trial. Alternatively, the Court should add to the pretrial conditions one or more of the conditions proffered by Mr. Rubashkin.
Dated: December 23, 2009
NATHAN LEWIN and ALYZA D. LEWIN
LEWIN & LEWIN, LLP
1828 L Street, N.W., Suite 901
Washington, D.C. 20036
Attorneys for Defendant-Appellant
The entire Statement of Case and Motion for Release as a PDF file: