Op-Ed: Justice Denied: Rubashkin’s Sentence Is Wholly Inappropriate For The Crimes Of Which He Was Convicted

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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.

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.

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.

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.

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.

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.

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.

The documents reveal that Rubashkin’s arrest appears to have been timed to accommodate Reade’s personal vacation schedule; 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”; 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.”

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.

(Source: National Law Journal)




12 COMMENTS

  1. Judge Reade was a co-conspirator with the Justice Department in doing a Hit-Job on Rubashkin. She should be impeached and thrown off the bench in disgrace.

    Unfortunately, judges and prosecutors enjoy immunity from criminal and civil charges, no matter how outrageous their behavior. Therefore, they have no reason to be fair and compassionate. They just do whatever is necessary to convict their prey–lying, bribibing witnesses, and using blackmail–the threat of financial ruin and imprisonment.

  2. Unfortunately Israel continues to harbor a prominent American fugitive, refusing to either extradite or to try the person in Israel. That will likely result in more Jews being held prior to trial without bail.

  3. Unfortunately the federal courts have not been packed with judges who are totally unsympathetic to criminal defendents; the standards to get a new trial are almost impossible to meet. Unfortunately, many commenters here salute the appointments of these right wing judges.

  4. “…right wing judges.”–chATLIE HALL NO. 4.

    Charlie, she’s an affirmative-action selection–a left-wing judge. The fact that she’s known as one of this country’s meanest and most incopetent judges does not make her right wing.

  5. To Charlie Hall, defender of the system: Prosecution indicted Reb Shalom on 9311 charges, of which 9310 were dropped for lack of substance or proof. What would be your evaluation of a talmid, sports star, any professional, just anyone or anything if he scored 0.01074%, besides the millions they spent to press these 9311 charges? Were any questions asked? Was anyone fired? No. You will even see some of the scoundrels will get promoted.

  6. The question begging reply is ‘what is the motive behind this satanic Judge’s actions.
    The obvious one is Jew-hating.
    being so obvious, it may be the cover-up for the real motive which is open to conjecture.
    Does the judge have financial interests in Rubashkin’s competitors?
    Is this part of a general smear-the-Orthodox-Jews image. This may be a link to the excessive publicity given to charity funds that were channels for money laundering. The campaign is to make anything religiously Jewish have a bad name, so that the only opposition to Israel’s surrender of territory to the PA, religious Jews lose any credibility.
    I pray that Hashem yisborach wil have mercy on Rubashkin and free him from unjust captivity, and may the Redeemer come unto Zion speedily in our days.

  7. deepthinker,

    Judge Reade was appointed a judge by President George W. Bush on the recommendation of Sen. Charles Grassley. Neither has ever supported left wing judges; her throwing the book at a criminal defendent is typical of the right wingers.

    dovid2,

    Shalom Rubashkin was actually convicted of 86 financial charges, not just one. He still could face an additional 72 charges of violations of immigration law should the financial convictions ever be overturned. (He was acquitted on 83 charges of violating state labor law in an unrelated prosecution.)

    Many commenters here simply assume that right wing Republicans are automatic supporters of Jews. That is simply not the case. The US Congressman from Postville, Steve King, is a right wing Republican who is a nativist bigot. He cheered on the original raid. He is not our friend.

  8. joeschoe,

    The solution to the problem of excess publicity given to frum charities engaged in money laundering is for frum charities not to launder money! Doing so violates halachah and secular law.

    Maybe we need to get a collection of the most distinguished dayanim in America to form a certification board for frum charities, similar to a kashrut agency?

  9. I would like to submit this personal editorial in support of this great article:

    RUBASHKIN GETS 27 YEARS, WALL STREET EXECUTIVES GET A FREE PASS.
    Or
    WHITE COLLAR CRIME – UNEQUAL JUSTICE UNDER THE LAW

    On June23, Sholom Rubashkin received a sentence of 27 years for bank fraud
    in U.S. District Court for the Northern District of Iowa from District Court Chief Judge Linda Reade. If you are unfamiliar with the case, please google ‘Sholom Rubashkin’ to get the details.

    While Judge Reade followed the federal sentencing guidelines exactly (which the Supreme Court ruled in 2005 is not required), one would have to admit that the sentence is excessive given the malfeasance. The congressional intent in developing these guidelines was to punish white collar crime. It sounds like a good idea, but it’s application to different people from different walks of life and politics, I contend, is denying equal justice under the law, which is clearly unconstitutional. I am writing this editorial not as a legal scholar but as someone who is asking for equal justice under our laws. A society that sentences convicted people without a comparative sense of justice and fairness is headed in the wrong direction.

    Let’s put aside the comparison of different types of sentencing for criminal acts (murder, robbery, rape etc.) and focus on just white-collar criminal acts. Certainly many people are pointing out the inconsistency of sentences for physical crimes, such as driving under the influence, aggravated assault and battery and attempted murder, arson and theft, which are mostly much less than 27 years. Legal experts will explain the different statutes and state law versus federal law to try an answer this disparity. But if we focus on white-collar crime alone, the degree of comparative sentences handed out is misdirected. Even the prosecutorial discretion of bringing charges against defendants seems to have become too politicized.

    Sholom Rubashkin was charged with many criminal counts of bank fraud. The main counts of violation of immigration laws buy employing illegal immigrants was dismissed by the prosecution, why? so they could get at longer sentences under the guidelines of federal bank and wire fraud. For the charges of illegally hiring minors, Mr. Rubashkin was found not guilty by a jury. Still Judge Read delayed her sentencing to see the outcomes of the other charges. While the Judge and the prosecution may not have overstepped their authority, their strategies and motives can be questioned as to the severity of the sentence measured against more important people who committed massive fraud so to speak on Wall Street.

    My contention is that while Mr. Rubashkin gets the maximum sentence plus 2 years, Wall Street executives get a free pass in terms of even being prosecuted and if they are, they have the power to reach settlements with the Department of Justice and SEC for little or no prison time. Certainly the damage that some Wall Street executives have caused to their investors and the economy at large are worthy of prosecution and higher sentences. Even though the SEC and US attorney general are investigating Wall Street executives as well as BP Oil for criminal malfeasance (11 workers died), I am willing to bet that there will be settlements and reduced sentences if any at all. It appears that the rich and powerful are judged on a lesser scale than us average citizens. It’s easy to sentence Mr. Rubashkin to the maximum yet extremely difficult to even prosecute executives on Wall Street. You can fill in the reasons yourself.

    I hope our politicians and lawyers can understand why people are angry now. Wake up before our system of democracy is damaged by selfish motives. Mr. Rubashkin does not warrant a 27 year sentence, just put your judicial and political egos aside and do the right thing please.

    The following links below should be read.
    Gambling Bank’s Money Turns Out to Be Illegal: http://noir.bloomberg.com/apps/news?pid=email_en&sid=aMbPXTOryycs
    Goldman’s Grand Delusions Finally Hit Reality:

    http://noir.bloomberg.com/apps/news?pid=email_en&sid=aOcfFn1qzu20
    Alarms Were Disabled on Transocean’s Rig, Worker Says (Update4):
    http://noir.bloomberg.com/apps/news?pid=email_en&sid=asQQJMjh_NFo