Nightmare of federal sentencing guidelines
Bob Barr • Atlanta Journal-Constitution
Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison – in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.
While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone.
The U.S. has the largest prison population per capita of any nation in the world; and each year thousands of men and women are sentenced in federal court (and many more in state courts) to terms of incarceration ranging from a few months to multiple life terms. The high profile cases make plenty of news – Bernie Madoff, Enron’s Kenneth Lay, Oklahoma City bomber Timothy McVeigh, and many others. Well-known cases such as these reflect circumstances in which individuals clearly guilty of very serious criminal intent, committed serious offenses and were fully deserving of the sentences meted out.
What the average, non-lawyer citizen – and perhaps even many lawyers who do not practice federal criminal law – probably fails to realize, is that in many other cases, such as Rubashkin’s, men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s, can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government. In Rubashkin’s case, for example, even though the government initially charged him with immigration-related crimes, he was never actually tried for such activities (and, in a subsequent, state court trial, was found innocent of similar charges). Yet, these alleged violations could be and were used to increase his eventual sentence for the financial crimes of which he was convicted.
Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence. This, too, happened to Rubashkin.
Rubashkin also saw his punishment enhanced because of the manner in which the judge elected to calculate the amount of the “loss” to the Iowa bank that extended a revolving line of credit to his meatpacking business. The alleged loss was dramatically increased because the federal government itself prevented the company from being sold to buyers in a bankruptcy proceeding who were ready to pay far more for the company than the government eventually approved. In other words, the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.
First of all, I agree with Barr's call to reform US Sentencing guidelines. And, as you know, I think Rubashkin's sentence is too long.
But I disagree with the idea that it is okay to lie or misstate the truth in order to defend Rubashkin, and I think Rubashkin allowing these lies points out serious flaws in the man's character. (That many of these liars for Rubashkin are haredi rabbis casts serious aspersions on the entire haredi religious system.)
So how does Bob Barr lie? Like this:
Barr: "[M]en and women found guilty of white collar crimes far less severe than a Bernie Madoff’s, can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government. In Rubashkin’s case, for example, even though the government initially charged him with immigration-related crimes, he was never actually tried for such activities (and, in a subsequent, state court trial, was found innocent of similar charges). Yet, these alleged violations could be and were used to increase his eventual sentence for the financial crimes of which he was convicted."
Truth: While the judge mentioned some – but not all – of those other crimes in her sentencing memorandum, she did not add any levels (i.e., time) to Sholom Rubashkin's sentence because of them.
Barr: "In Rubashkin’s case, for example, even though the government initially charged him with immigration-related crimes, he was never actually tried for such activities"
Truth: The immigration charges were dropped because they would not have added appreciably to Rubashkin's sentence. But the government reserved the right to reinstate those charges at any time. These types of decisions are quite normal and are made often.
Barr: (and, in a subsequent, state court trial, was found innocent of similar charges)."
Truth: Agriprocessors pleaded guilty to those child labor charges, as did two managers, facts that weaken Barr's argument – so Barr omits them.
Barr: "What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence. This, too, happened to Rubashkin."
Truth: A Rubashkin employee testified that Sholom Rubashkin ordered him to prepare false invoices for the bank, and those false invoices were found in the Agriprocessors office in a file marked "Sholom." And other employees testified to their roles in the bank fraud run by Sholom Rubashkin.
On the stand, Rubashkin claimed he never ordered those false invoices and tried to deny his role in the fraud.
US law has a crime called perjury, lying on the stand, in a sworn deposition, or to law enforcement officers.
While not passing judgment on what the government alleged was perjury committed when being interrogated by law enforcement, the judge did pass judgment on lies Rubashkin told under oath in court.
It is not the assertion of innocence that can cause a defendant to be charged with perjury or have his sentence increased. It is lying that can do that.
A defendant is not compelled to take the stand and, if he does, he can refuse to answer questions that he thinks might incriminate him.
A defendant who chooses to testify and who chooses to answer incriminating questions with lies risks penalties for perjury, just as any witness who perjures himself on the stand risks perjury charges.
Barr: "Rubashkin also saw his punishment enhanced because of the manner in which the judge elected to calculate the amount of the “loss” to the Iowa bank that extended a revolving line of credit to his meatpacking business. The alleged loss was dramatically increased because the federal government itself prevented the company from being sold to buyers in a bankruptcy proceeding who were ready to pay far more for the company than the government eventually approved.
Truth: The prosecutors moved to seize Agriprocessors and its assets under forfeiture law. Profits of a criminal enterprise are not the legal possessions of the criminals. They are instead forfeited to the state.
So a drug dealer's "legitimate" businesses and assets are seized by the government along with the cash proceeds of his drug sales, as long as a financial trial can be established.
In Rubashkin's case, Agriprocessors' workforce was about 75% illegal alien workers, and his bank fraud fueled the company. That made Agriprocessors and its assets available to the government.
Originally, the government intended to seize Agriprocessors and those assets, but prosecutors were talk out of doing so by people concerned that forfeiture would kill Postville.
So, instead of immediate forfeiture, the government agreed to an open sale of Agriprocessors, with the stipulation that no Rubashkin family members or close associates would be allowed to buy Agriprocessors.
Did this stipulation drop the sale price of Agriprocessors?
It's hard to say. What hurt the sale price more than anything else was 21 years of horrendous management by the Rubashkin family and the hurban (destruction) that left.
America does not want criminals to profit from their crimes. That is why the law allows forfeiture.
Barr: "In other words, the government can manipulate or control the amount of a victim’s 'loss' so as to permit a judge to then increase a defendant’s sentence."
Truth: Pre-auction, no one had any way of knowing if the government's stipulation would decrease the sale price of Agriprocessors.
However, what became evident at auction was that very few investors were interested in Agriprocessors, largely because it had become clear that most of Agriprocessors market dominance had come from theft, and the company itself was in total disarray, largely due to horrific management by the Rubashkin family over a 21 year period.
This meant that only bidders with close ties to the Rubashkin family seemed interested in paying big money for Agriprocessors. This may have been because they were really bidding for the Rubashkin family in an attempt to circumvent the bankruptcy court and the prosecution.
Whatever the reason, to say "the government can manipulate or control the amount of a victim’s 'loss' so as to permit a judge to then increase a defendant’s sentence," is false.
What caused the loss to the banks was that when they called in their loans the collateral Sholom Rubashkin had used to get those loans was no where to be found. For the most part, it had never existed.
And that is why Sholom Rubashkin was indicted, tried and convicted.