Justice Denied: Rubashkin’s Sentence Is Wholly Inappropriate (...)

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.

Thank you for posting this important article. It seems thatnthe judge is guilty of the worst judicial conduct I have ever heard of in my quarter century as an attorney. As Glenn Reynolds of Instapundit wrote, if this proves out (as seems likely), not only should she be impeached as a judge, but she should be disbarred as lawyer.

Hi there again!
Where did you see that on Instapundit? I looked for a comment from him the last time you mentioned it, but couldn’t find anything.

I appreciate your sympathy, yet disagree with the comparison: With Pollard it was and is difficult to really know what happened due to the fact that national security was so totally involved. I mean, I’m aware of the conventional knowledge: that he only gave a Israel, a political ally, information that they were supposed to have been given... but between you and me, who knows what he compromised by taking it upon himself to pass that information on. He risked and paid with his freedom.
I’m not judging him, but there are too many unknowns due to secrecy.

But here, everything is known! He was set up and set upon from the beginning! Set up by this judge, set upon by PETA, labor unions, and then by the federal government!

I’m no fan of Rubashkin, but his treatment has been extreme in comparison to others in the same situation.

Jack Decoster, another religious Iowa ag scofflaw, has received kid glove treatment despite being the worst labor law violator in American history and despite being the employer of thousands of illegals. He’s allowed to risk America’s health in his egg business while Rubashkin sits in jail.

When you say ‘religious’ do you mean that he’s also visibly Jewish? Or a different religion? Just curious, I’d never heard of him.

Contrast his treatment with the treatment received by the illegal alien who perjured himself and unlawfully voted in an election, and you'll get a good idea where this nation is heading:

DHS Helping Illegal Alien Felon Who Voted To Become a U.S. Citizen

“Brother Jack” Decoster is well-known evangelical Christian from the NE who ran afoul of the feds with his Maine egg operation, then moved into the hog business in the midwest. When the feds forced him to relinquish control of the hog business, he turned again to eggs. He controls the company that is responsible for producing the millions of eggs subject to recall.

re: ‘ya coulda looked it up!’

I tried! I couldn’t quickly see the tie in!
Thanks, Sarah

Unfortunately, the prosecutors are correct about the flight risk. About 12 years ago in Montgomery County Maryland, a local Jewish kid who had never lived in Israel fled there to avoid prosecution after murdering another young person. Half hearted attempts to extradite him failed, the victim's family had no clout—poor, Hispanic, limited English, possibly illegals—and the kid got away with murder. Sounds like this guy's sentence is just about right.

And now for the rest of the story.

After that incident the laws in Israel were changed so that it could never happen again.

(Those laws were instituted in the first place so that anti Semitic countries such as the former Soviet Union could not extradite a Jew fleeing unfair Soviet persecution).

In any event since the change, Jews are extradited back to the US when warranted.

Hi, Sarah. Instapundit’s comment was posted on August 18 about 9:45 PM. Also, in last week’s newspaper Yated Neeman (not this past week but the week before) reporter Debbie Maimon had a very worthwhile article about the details of the processing of the illegal aliens found working at the plant. It includes a report of an immgration lawyer who walked out in disgust because he saw how Judge Reade was running the justice process as an assembly line with no due process.

Also, not to change the subject to the Maryland case but the murderer is serving his sentence in an Israeli prison. He is not free in Israel, and never was.

What is his religion and what difference does it make? He brought illegals into the USA so that he can profit while others must pay the tab.

We need to make an example out of such greedy pigs. If a few are sent for prison for life that will put a quick end to those who put the job bait out to attract illegals.

Google Rubashkin family. Sorry, but based on their history of illegalities and nefarious activities I’m not going to miss them. http://www.google.com/search?q=rubashkin+family&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

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.

Imagine the uproar if a judge said, jihadists pose a unique flight risk because they blow themselves up, killing everyone around them. Thanks Sarah.

Her assertion of a ‘flight risk’ ignores established law.
I was at a lecture not long after her decision that was just chilling in its exposure of the blatant Antisemitism of that ruling. Every Jew denied bail due the Right of Return!?
Did she not read relevant case law?

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