New York – National Law Journal OpEd: Rubashkin’s Sentence Inappropriate For The Crimes Of Which He Was Convicted

    51

    New York – 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.

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    51 COMMENTS

    1. Rubashkins lawyers should keep the pressure on the DOJ and congress to investigate Judge Reade and the Iowa US Attorney, hopefully Judge Reade and the Iowa Persecutors will land in Jail

    2. we all knew SMR always tried avoiding anything causing a חילול השם,it rather bothered him the חילול השם his case caused,then his own יסורים,B’H finally the media has no choice and starts covering the positive side!from a חילול השם its getting turned over to a קידוש השם!yeps sholom you have a big זכות !!let’s all stand to his side to give him the strength he needs!

    3. Standard post-trial maneuvering in a high-profile case for a guy with money. For better or worse Rubashkin did the crime. And he’s almost certainly going to serve the time. Denial of bail? He was absolutely a flight risk. The bag full of cash and passports from his house was a pretty good indication of that.

      #1, judges don’t get impeached because they issue a sentence you don’t like. It doesn’t work that way in a country with an independent judiciary. They only get impeached for committing serious crimes. Not agreeing with you is not a serious crime

      #2 He was convicted of over eighty separate serious Federal crimes. You don’t a few weeks for that. You get decades.

      • Should these animals check around your back round or any one elses back round with a ‘kavana’ to put you in prison I’m sure they can find on you the same serious crimes…….!!!

      • Should these animals check around your back round or any one elses back round with a ‘kavana’ to put you in prison I’m sure they can find on you the same serious crimes…….!!!

      • You must have either not read the article or u (think u) know more information than all jouralists lawyers and attorney generals. Please share with us your sources. Its amazing that the only ones who can’t allow SMR a fair trial are some commentaries on VIN.

      • While you may be correct, if the jury was bought and you can prove it a new trial woild be in order. If the judge broke the law and there was a personal gain to herthen a new trial is in order and perhaps removing her from bench as well.

    4. An editorial by SMR’s Defense attorney isn’t worth much in the grand scheme of things. It would be like Nancy Pelosi writing an editorial supporting Democrat policy.

    5. #8 and the like who speak of mass guilt of smr are most probably from people from the prosecution or sent on their to change the opinion of us Jews on smr we will not I repeat we will not follow your twited arguments we will tear you down and seek justice and you guys will rot in hell

    6. After all said and done, my gut feeling is that nothing in this horendous and vicious sentence will be overturned. And that’s simply scary to say the least.

    7. Yes he committed a serious crime. Yes he should be punished. I won’t belittle the fact that it was from a bank not from “little people”. But the Enron guys defrauded little people and didn’t receive this sentence. World com didn’t receive this sentence. Nobody in recent corporate fraud, that led to Sarbanes-Oxley, received such a sentence. There’s no question that he has suffered much more in these few years than others in the same category.

    8. To # 8

      Just remember Yom Hadin is 3 weeks away. The way you judge a fellow yid is the same you Hashem will judge you.

      I hope that you are a complete Tzadik otherwise you will be toast.

    9. According to published reports, a federal appeals court recently upheld the sentence of a former insurance agent accused of stealing millions, even though Judge Linda Reade, the same judge as SMR’s case, added almost 5 years to the man’s sentence.

    10. #8 you are wrong on all counts he was not convicted on 80 counts he was acquessed of that most were dismissed but similar cases has recently been agudicated in which illegals were working ,taxes were not paid and bank fraud and they recieved no jail time only fines
      secondly the judge did act illegally and refused to answer questions or the prosecutors refused to turn over vital information to the defense team that would have lead to the judges dismissal from this case. sorry in this country this information was rerquired to be give and wasnt it now looks worse for the judge and the federal justice office

    11. The lawyer that wrote this is Rubashkin lawyer, I’m surprised they couldn’t get him to write more convincingly. This is the same mistake that was written here before, that the Rubashkin lawyers fight the case in the media to create pressure becasue lemayseh in court they have nothing. I would feel much better that Rubashkin will get out on bail if there was truth in these writings, not distorted bubbe maysehs about the judge. Most people are lazy so they hear the judge will give her full support, they are too busy or too lazy to read that actual paper where she says she gives her full support to the raid for the purposes of the court calendar. Words don’t lie but liars use words, and Nat Lewin is a serious liar.

    12. You see by comment 23 there were so many charges and courts that they can’t even keep count. He was most certainly convicted of 86 counts of bank fraud wire fraud mail fraud. This has nothing to do with the state trial he won.

    13. to #8
      You are a dimwitted anti-social, anti-semitic, b@st@rd.
      Had this been a case involving capital punishment, and it was uncovered that the sentencing judge had personal interest and an agenda for the case, the judge would have been severely impeached. And the 80 counts of fraud is a load of sensational croc. It is well known that a single act carries multiple charges. Now multiple acts within just a single transaction can easily trigger 80 counts. Don’t try to convince yourself of your righteousness you scumbag.

    14. Reply to #20:

      I don’t know what “article” you are talking about – maybe YOU should re-read it.

      This was an editiorial by one of Rubashkin’s OWN attorneys! Read who wrote it, at the end of the “article”!

      “Anonymous Says:
      Reply to #8 You must have either not read the article or u (think u) know more information than all jouralists lawyers and attorney generals. Please share with us your sources. Its amazing that the only ones who can’t allow SMR a fair trial are some commentaries on VIN.”

      • My mistake, editorial, not article. However my comment still applies. U have an editorial that tells u what was in the bag, obviously s/t that is easy to find out and they wouldn’t lie, and u made a comment that he’s considered a flight risk. So, it’s either u (deliberately) didn’t read the editorial, or you have a very serious agenda and hatred toward SMR. So unfortunate that its only the comments on VIN that show a hatred to another Jew.

    15. reply to #21:

      No, like bank fraud, wire fraud, and perjury.

      I don’t think anyone accused him of paying the cattle late, he didn’t owe the cattle any money, and even if he did, the cattle did not press charges.

      “Anonymous Says:
      Reply to #8 Convicted of 80 “serious” crimes. Like what? Paying cattle a day late?”

    16. reply to #23:

      No, you are absolutely wrong, he was convicted of more than 80 (86 or 87) federal counts.

      “kollelfaker Says:
      #8 you are wrong on all counts he was not convicted on 80 counts he was acquessed of that most were dismissed but similar cases has recently been agudicated in which illegals were working ,taxes were not paid and bank fraud and they recieved no jail time only fines”

    17. Whoa! You obviously didn’t notice who wrote the “article”. read the bottom of the page!

      awacs Says:
      Woah! This editorial is damning. And, it’s going to the right audience: the NLJ readership, who are movers and shakers in American justice.

      • Reply to #30:

        “You obviously didn’t notice who wrote the “article”. read the bottom of the page!”

        I certainly did. So what? Yes, the editorial is partisan. Still, it’s very damning, adn seen by a lot of influential people.

    18. Reply to #9:

      What are you trying to say? Your comment makes no sense!

      “Today at 12:47 PM mendel from 41 st Says:

      Wonder. What the vicious conservative leaders who wanted to see rubashkin in prison say now They are all silent and thiere silence speaks volumes

    19. B’yh his sentence will be reduced to maybe 10-15 years rather than 27 which everyone now agree was excessive. He should be allowed to leave prison while he is still alive and able to have naches from his grandchildren.

      • to #32:

        The only soine yisroal (sp) is you.

        #8 is entitled to his opinion, and his opinion happens to be factually correct.

        However, your response is pure sinas chinom, as #8 said nothing about Am Yisroel or Jews in general at all, let alone anything that would make him a “soine yisroal”.

        Want to explain yourself?

      • reply to #34:

        You are confusing me with the person who wrote the original comment, and you are an idiot if you think stating the truth is the same as hatred of another Jew.

        Yes, it certainly makes a difference who wrote the article, and this was written by SMR’s defense attorney, and will be taken seriously by no one.

        What would your reaction be to an editorial written by Judge Reade in the same publication? Wouldyou assume everyone will pay attention to it, or just call her a Jew-hater and ignore it?

        You Rubashkin apologists have to stop calling anyone who points out that he was found guilty and admitted to a number of crimes a Jew-hater or Soneh Yisroel.

        “34 Yesterday at 05:08 PM Anonymous Says: Reply to #27 Show Quote My mistake, editorial, not article. However my comment still applies. U have an editorial that tells u what was in the bag, obviously s/t that is easy to find out and they wouldn’t lie, and u made a comment that he’s considered a flight risk. So, it’s either u (deliberately) didn’t read the editorial, or you have a very serious agenda and hatred toward SMR. So unfortunate that its only the comments on VIN that show a hatred to another Jew.

      • reply to #45, Favish:

        You are very funny, whatever country you come from (hard to tell from your English attempt).

        Here in the United States, we don’t call convicted criminals “ehrliche yid”. We don’t call people convicted of wire fraud, bank fraud, and perjury “ehrliche yid”. Maybe in your country, but not here.

        If you think that Rubashkin is hated for his beard and payous (?), why isn’t the entire chassidishe community just as hated? Or does Mr. Rubashkin just have an especially unlikable beard and payoos? I mean, payows?

        If you think #42 only dislikes the beard and payouts, maybe we could find just a beard and pooyoos #42 dislikes more than Rubashkin’s, and they can sit in jail instead of Mr. Rubashkin? or is there something Rubashkin can do to make his beard and payass more likable to #42?

        Let’s make this happen!!!!!

        *********************

        #45 Today at 07:32 AM favish Says: #42 i know you are disappointed that there is a light at the end of the tunnel for the ehrlicher yid, mr rubashkin whom you hate because of his beard and payous etc you’ve hopde he’ll rot in jail to the end..and if anyone has a safuk on this sonei yiroel OMG usut rereadm all his posting all ove*

    20. reply to #32:

      what makes him a “soine yisroal”, as you spell it?

      That he made factually correct statements about SMR that you don’t like?

      I say that someone who protects a convicted criminal and justifies lying, cheating and stealing is a much bigger :soine yisroal”

    21. To #26- While I didn’t like what #8 wrote, I certainly don’t like the language of the gutter (truck driver language), which you used in your response. If you would read the rules, you would see that your use of such language is a violation. Hence, the Administrator of this Board, should remove your response; otherwise, copycats will also employ such language. Yidden should be on a higher level at all times, and not use such distasteful and profane language.

    22. It is amusing how must of you are building up your hope, on the same regurgitating misleading arguments. People who followed the SMR saga, know the truth and understand how skewed the article is. It is full of inaccuracies and sometime just plain lies. The fact is that this is just another fund raiser for SMR.

    23. #8 got it right. So I guess I am also a “soine yisroal”. I am quite confident this response here will not be counted against me three weeks from now. The truth hurts, huh?

    24. #42 i know you are disappointed that there is a light at the end of the tunnel for the ehrlicher yid, mr rubashkin whom you hate because of his beard and payous etc you’ve hopde he’ll rot in jail to the end..and if anyone has a safuk on this sonei yiroel OMG usut rereadm all his posting all over

    25. I’m with #8!

      I guess that makes me a Jew-hater, too. Sign me up for the club with you guys!

      I don’t think the big man considers this Jew-hating like VIN does. But I’ll bet He has something to say to people who insult others with such nice sobriquets, especially when they are false and are Motzi Shem Ra and embarrass people in public!

      Happy Chodesh Elul to all, and enjoy it, name-callers and embarrassers of strangers in public. If all goes according to plan, many of you won’t be around after Yom Kippur decrees.

    26. reply to #44:

      WOW! The cartoon continues!

      Now you’re claiming the jury was bought? by whom? for how much? what proof do you have?

      Is nothing too low for you to make up to try to paint Rubashkin innocent?

      #44
      Today at 02:36 AM Anonymous Says:
      Reply to #8 Show Quote
      While you may be correct, if the jury was bought and you can prove it a new trial woild be in order. If the judge broke the law and there was a personal gain to herthen a new trial is in order and perhaps removing her from bench as well.

    27. reply to #45

      Favish, you are confusing a light at the end of the tunnel with the headlight of an oncoming train.

      And what makes you think that people who are not pro_Rubashkin’s total innocense hate people with beards and “payous”? My whole family is chassidish, and everyone has beards and “payous” (except most of the women), and I don’t hate any of them.

      Why do you think everyone is picking on Rubashkin’s beard and leaving everyone else’s beard alone?

      45
      Today at 07:32 AM favish Says:

      #42 i know you are disappointed that there is a light at the end of the tunnel for the ehrlicher yid, mr rubashkin whom you hate because of his beard and payous etc you’ve hopde he’ll rot in jail to the end..and if anyone has a safuk on this sonei yiroel OMG usut rereadm all his posting all over

    28. # 45
      Favish,
      I am not trying to make fun of your lack of writing ability, the only thing I was able to take away, is that I hate SMR because he has a beard, I don’t know why you would assume that I hate his beard, rest assured that, I like beards, Santa has a nice one, and so are lots of Amish people or even Chasidic. What irks me, people like you, who when all of sudden when it affects someone from your community, then and only then, you are up in arms, and oppose the system, which I totally agree is extremely harsh on white collar and sometimes on petty theft. Where have you been when Jerry Dewayne Williams was sentence for 25 years to life for stealing a slice of pepperoni pizza? Did you write even one letter? That is what is wrong with all of you; I am totally against a 27 year sentence for this type of fraud. But under no condition will I impugn Judge Reade, who is only following the draconian federal sentencing guidelines, for years I have been sending letters to congressional leadership. Favish, sir you are late to the party.

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