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

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.