This piece is so poorly written I initially decided not to use it. But I received so many emails from people about it that I changed my mind.
I'll note the major errors in the body of the text. My comments will be set off by enclosure in square brackets and by use of a different font.
Rubashkin's sentence is wholly inappropriate for the crimes of which he was convicted.
Robert Steinbuch and Brett Tolman • National Law Journal
Sholom Rubashkin was the vice president of America's largest kosher meat plant, Agriprocessors, located in Iowa. Rubashkin provided kosher meat to Jews throughout much of the country seeking to comply with biblical dietary rules. In 2008, after Rubashkin contacted U.S. Immigration and Customs Enforcement (ICE) and offered to cooperate, several hundred federal agents raided Agriprocessors. During the raid, 389 illegal aliens were arrested. Rubashkin was later charged with one violation of immigration law.
[For months, Sholom Rubashkin refused to cooperate with the government. Then, a few days before the raid, he changed his mind and offered to cooperate. As the documents filed with the court two weeks ago by Rubashkin lead appellate attorney Nathan Lewin show, the raid involved extensive planning by the government, planning that took six months. After spending millions of dollars and six months of time, to expect the government to take Rubashkin's last minute offer is ridiculous. Past that, evidence clearly shows that as Rubashkin was offering to cooperate with the government he was also actively procuring fake IDs and fake green cards for his employees, so his offer of cooperation can hardly be viewed as legitimate.]
On the day following Rubashkin's release on bail, federal prosecutors Matt Dummermuth and Peter Deegan Jr. yet again had him arrested. This time, they asserted various financial charges for events that occurred when Rubashkin attempted to keep his business services viable after his first arrest, including a charge that he should have told his bank that he had broken the law on the immigration charge that he vigorously contested — and the prosecutors later dropped.
[Steinbuch and Tolman intentionally mask the date of Rubashkin's first arrest, which took place in September 2008, four months after the raid. They also mask the scope of Rubashkin's bank fraud, which according to trial testimony stretched back into the 1990s, and fail to mention that Rubashkin not only grossly overstated the value of his collateral, he also laundered money through religious nonprofits he controlled to hide it from his lenders. He also took $1.5 million dollars out of Agriprocessors' accounts and put it in his own personal accounts.]
DENIAL OF BAIL
After bringing these new charges, the prosecutors sought to revoke bail, alleging that Jews pose a unique flight risk as a consequence of the laws set up in Israel after World War II allowing Jews to go to Israel after their near extermination. At the time of the bail hearing, Rubashkin was 49 years old, married, the father of 10 and a citizen of the United States with no prior criminal record. Moreover, he is not an Israeli citizen; he has no bank accounts, property or assets in Israel; he does not have an Israeli passport or visa; and his wife, children and parents reside in the United States and are U.S. citizens. Defining Jews as a greater flight risk due to Israel's law of return is repugnant. Even more troubling is that the U.S. magistrate judge handling the matter, Jon Stuart Scoles, accepted the prosecutors' unsavory arguments — denying bail to Rubashkin.
[What Steinbuch and Tolman do not mention is that Sholom Rubashkin urged a senior level manager to flee to Israel and paid for his ticket. That employee, Hosam Amara, is still wanted by the government. Another senior level Rubashkin manager, Zev Levi, also fled indictment and is presumed to be hiding in Israel. Steinbuch and Tolman also do not mention Israel's checkered record of fulfilling extradition requests.]
The prosecutors also baldly claimed that Rubashkin was stashing cash in his house so he could flee the country. In fact, much of the allegedly "stashed" currency was actually money clearly used for charity — including silver coins used by religious Jews on the Feast of Esther (Purim) for special acts of charity and a stack of one-dollar bills used for daily charity.
[The actual amount found was in excess of $10,000. Only a small percentage was $1 bills. The money was found in a travel bag on the floor of Rubashkin's closet. In that bag were the passports of his wife and children.]
After 76 days in jail, the district judge released Rubashkin on bail. Contrary to the assertions of the prosecutors and the belief of the magistrate judge, Rubashkin never even attempted to flee to Israel — or anywhere else for that matter. But at the same time, the prosecutors began increasing the charges against Rubashkin. They did this seven times. Rubashkin was convicted on the financial charges in November 2009. Without Rubashkin, his company went bankrupt, and the line of credit that had been consistently and timely paid went into default.
[Agriprocessors went bankrupt because it could recruit and retain legal employees, not because of Sholom Rubashkin's absence. The reason it could not get and retain legal employees is primarily that Agriprocessors paid far less than the industry standard for that area of the Midwest.]
After conviction, the prosecutors first sought a life sentence. They then reduced their request to one for a 25-year sentence for Rubashkin — a man with no criminal history on charges essentially that he inflated his ability to pay loans that he had been consistently paying. The "reduced" sentencing proposal called for the court to impose a sentence equal to or longer than that for second-degree murder, kidnapping, rape of a child or affording weapons to terrorist organizations. Tragically, the district judge, Linda Reade — a former federal prosecutor in Iowa herself — imposed a sentence of 27 years, two years longer than the already exaggerated one the prosecutors sought. This sentence is drastically disproportionate to those imposed on others convicted of similar crimes and wholly inappropriate for the crimes of which Rubashkin was convicted.
[Steinbuch and Tolman do not mention several things: 1) The US Sentencing guidelines called for a sentence of 23 to 30 years, 2) Rubashkin committed more than simple bank fraud. He also laundered money and headed a conspiracy to defraud. And this does not take into account the immigration-related charges which under US law could have been used during sentencing to add to his sentence. The judge chose not to do this. She sentenced Rubashkin to 25 years – at the lower end of the sentencing guidelines – and then added two years for a crime Rubashkin committed in her courtroom – perjury.][The idea that Rubashkin did not personally profit from his fraud is not tenable. His family owned the business and Sholom Rubashkin himself personally benefited financially as I noted above.]
Frank Bowman — a professor at the University of Missouri School of Law, former federal prosecutor, special counsel to the U.S. Sentencing Commission, co-author of the Federal Sentencing Guidelines Handbook and co-editor of the Federal Sentencing Reporter — rightly distinguishes between "[a] defendant who consciously sets out to steal or cause economic loss" and one "who acts dishonestly but without the desire to steal or cause loss." Rubashkin was never alleged to have pocketed profits; rather he was alleged to have mismanaged moneys to keep his business afloat. His sentence does not reflect this critical distinction.
Reade's sentence becomes even more suspect when seen in light of the recent revelations concerning her undisclosed contacts and involvement in the case leading up to Rubashkin's arrest.
In February 2009, prior to Rubashkin's trial, his attorneys made a Freedom of Information Act request to ICE seeking documents concerning Rubashkin and the raid upon the facility. ICE didn't produce the documents. His attorneys sued. More than a year later, they finally obtained redacted documents from ICE. The documents are startling. They show that Reade had ongoing ex parte contacts with the U.S. attorney's office and ICE about the matter beginning six months prior to Rubashkin's arrest. These meetings covered operational and strategic topics that went far beyond the mere "logistical cooperation" that Reade had insisted was the limit of her interaction when she denied a recusal motion from an unrelated defendant in the case. The newly discovered ICE memoranda belie this claim.
[Actually, they do not belie the claim. All the documents show is Reade – the court's chief judge – doing her job, clearing court schedules and making sure defendants would have judges to hear their cases, attorneys, those attorneys would have space to work, and that those attorneys and the court would have computer access and IT backup. After all. the government had to plan for the group arrest, detention, feeding, etc., of 600 people, and the law mandates their arraignment within 24 hours. The documents show this is what Judge Reade dealt with.]
The documents reveal that Rubashkin's arrest appears to have been timed to accommodate Reade's personal vacation schedule;[The raid was timed to be done when Judge Reade was not on vacation – a perfectly normal, legal choice – especially when my remarks immediately above are taken into account.]
Reade and the U.S. attorney's staff "surveyed" the location where the detainees would be held and their trials conducted; Reade expressed her personal commitment "to support the operation in any way possible";
[Steinbuch and Tolman here misquote the documents in the same way Nathan Lewin misquoted them in his press release. First of all, the quote is not from Judge Reade. The quote is from an ICE agent summarizing Judge Reade's position. And the entire sentence reads as follows, "The court made it clear that they are willing to support the operation in any way possible, to include staffing and scheduling." What Tolman, Steinbuch and Lewin have done with this sentence is reprehensible.]
Reade personally participated in meetings that covered "an overview of charging strategies" to follow the raid; and Reade demanded sua sponte from the prosecutors "a final gameplan in two weeks" and a "briefing on how the operation will be conducted."
[Just like the 'quote' immediately above, if you check the documents themselves you'll see Rubashkin's legal team is grossly misrepresenting the documents.][This is false. She disclosed her participation in planning the logistics of the raid's aftermath – which is exactly what the documents show she did.]
Reade never disclosed her attendance at, and active personal participation in, these meetings.
Rubashkin's attorneys have moved to have her retroactively recused. The motion requests that another judge decide the question. We'll see whether she accedes to this request. The attorneys are also considering filing complaints with the U.S. Justice Department against the prosecutors for failing to disclose their contacts with Reade.
TOO MANY FOUL BALLS
Seventy-five years ago, the U.S. Supreme Court stated: "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. U.S. (1935).
Too many foul balls have been struck here. Hopefully, Rubashkin will get the justice he deserves on appeal.
Robert Steinbuch is a law professor at the University of Arkansas at Little Rock Bowen School of Law. Brett Tolman, a former U.S. attorney for the District of Utah, is now in private practice in Utah at Ray Quinney & Nebeker. Tolman has worked on the Rubashkin case.