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Rubashkin plans appeal,  but another trial looms

Eric FingerhutWorld
Published: 20 November 2009

WASHINGTON – Facing a prison sentence of up to 1,250 years following his conviction last week on 86 of 91 fraud charges, Sholom Rubashkin is hoping his exoneration will come on appeal.

But U.S. prosecutors are looking forward to the next trial for Rubashkin, the former vice president of Agriprocessors when it was the nation’s largest kosher meat plant.

The trial, for 72 immigration violations, is scheduled to begin Dec. 2.

Rubashkin’s immediate concern is whether he will be released on bail pending the trial. Prosecutors say he is a flight risk, but defense lawyers filed papers contending that he is not.

Their client, the lawyers say, “remains steadfastly committed to his community both in Postville, Ia., and the larger religious Jewish community.”

The bail hearing was scheduled for Wednesday.

After a three-week trial in Sioux Falls, S.D., Rubashkin, 50, was convicted last week of bank, wire and mail fraud, money laundering, and ignoring an order to pay livestock providers in the time provided by law. A sentencing date has not yet been scheduled.

Rubashkin attorney Guy Cook told the Waterloo Cedar Falls Courier that the appeal would center around the judge’s decision to admit evidence having to do with Rubashkin’s alleged employment of illegal immigrants. The judge had split the immigration and fraud charges into two separate trials.

“It has the effect of allowing the jury to convict on one crime based on the evidence of another,” Cook told the Courier. “Dirty him up and it’s easier to find criminal intent.”

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An appeal by Shalom Rubashkin, right, will center on the judge’s decision to admit evidence having to do with his alleged employment of illegal immigrants, according to his attorney. He’s pictured with one of his lawyers, F. Montgomery Brown, outside an Iowa courthouse on Jan. 28.

The charges against Rubashkin stem from a May 2008 immigration raid on Agriprocessors’ plant in Postville, Iowa, which found hundreds of immigration violations and forced the plant into bankruptcy.

During the trial, which was moved to South Dakota out of concern that media coverage had tainted the jury pool in Iowa, the former chief financial officer of the company, Mitch Meltzer, testified that he and four other employees were sometimes paid their salaries in cash to avoid taxes.

Meltzer also said he created false invoices called “tootsies” to demonstrate to the bank, which had extended Agriprocessors a revolving $35 million line of credit, that money was still coming into the company.

Officials of companies that dealt with Agriprocessors testified that their records did not match Agriprocessors’ billing invoices. Witnesses also said that Rubashkin had directed customer payments into the wrong bank accounts and used the money to pay for personal expenses.

On the stand, Rubashkin admitted he made mistakes but said he never intentionally violated the law.

“I’m a human being,” he said, according to media reports. “I took the information people gave me and sort of went with it without really drilling down to see if it was real or not.”

Rubashkin also testified that he never read the $35 million line of credit agreement before signing it.

He compared himself to a “pioneer of the West,” helping build a strong Chabad-Lubavitch community in Postville.

“In the beginning it was quite a task to get one or two people to come there, and someone to teach,” he said.

Rubashkin was offered a plea deal before the trial, but the Des Moines Register reported that Rubashkin told friends he rejected it because he is innocent and had committed no crime.

The Conservative movement’s Hekhsher Tzedek Commission, which has been working to create an ethnical kashrut seal, said the verdict “delivers both justice and a heavy heart,” noting that the trial on charges of worker mistreatment has not even begun.

The commission’s director, Rabbi Morris Allen, said in a statement that two years before the raid the commission had attempted to “steer the Rubashkin family towards taking responsibility and correcting their mistakes,” but the Rubashkin family turned a “deaf ear” toward such calls and showed a “flagrant disregard for the law and ethical behavior.

“There is neither joy nor a sense of schadenfraude in yesterday’s conviction,” the commission said in a statement a day after the convictions. “Those of us who toil in the field of tikkun olam are downright demoralized by this highly preventable outcome.”

One revelation at the trial that could have implications for next month’s immigration trial was that the Agriprocessors plant twice rejected the employment application of a federal informant because of fraudulent work documents. He was hired the third time he applied after he brought legitimate papers.

JTA

 
 

Orthodox rabbis address the ethics of kashrut

The ethical side of the kashrut industry has been under a microscope in the wake of the 2008 immigration raid at the Agriprocessors plant, which led to a fraud conviction for the company’s former CEO.

Now, a task force within the Rabbinical Council of America has issued its Jewish Principles and Ethical Guidelines to “promote and safeguard ethical corporate policies and behavior, and encourage socially responsible activities in kosher food production,” according to the organization. The task force, headed by Rabbi Asher Meir, research director of the Business Ethics Center of Jerusalem, included rabbinical experts in business ethics, law, and kosher supervision.

“Recent events, and the deliberations of our task force, made it clear to us that expectations were not in alignment among the three major stakeholders in the kosher food industry: producers, supervisors, and consumers,” Meir e-mailed The Jewish Standard on Wednesday. “The supervising agencies had certain standards but they were not consistently defined or applied, and the producers were not always of aware of them; the consumers had expectations the agencies had not really understood. Most of all, we wanted to create a set of standards that would be acceptable to all the participants.”

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Rabbi Menachem Genack

The guidelines will help repair the damage caused to the image of the kosher industry since the Agri incident, according to Meir. The guidelines maintain that “agencies should explicitly inform clients that they require lawful conduct, and agencies should distance themselves from any producer whose conduct constitutes a gross affront to the ethical demands of Jewish law and tradition.”

Among the areas supervisors should monitor are employee and animal safety.

Jewish organizations welcomed the guidelines, while the Orthodox Union, the country’s largest kashrut supervisory organization, has endorsed them and has begun to direct its inspectors to monitor for violations. Rabbi Menachem Genack, the OU’s kashrut division CEO and an Englewood resident, served on the RCA’s task force.

“We’re not expecting kashrus inspectors to ferret out issues beyond their expertise, but in the process of the plant, if they become aware of something, they should report it,” he said.

Following the Agri raid, a group of rabbinical students from Yeshivat Chovevei Torah created Uri L’Tzedek, dedicated to promoting social justice in the Orthodox world. In a phone interview with the Standard earlier this week, Uri L’Tzedek founder Shmuly Yanklowitz said there has to be a “grassroots” shift in consumer habits.

“It’s clear that the Orthodox constituency, as well as the establishments, are rapidly changing in their perspectives of consumerism, kashrut, and social justice,” Yanklowitz said.

Until now, the Orthodox community has been more reactive about ethical standards in kashrut, Yanklowitz said.

“There’s an understanding now that the whole country is watching to see how will we clean up this mess,” he said. “But also on the positive side there’s an expanded notion of kashrut as a spiritual and emotional force in the country. That’s creating a great pressure in the Orthodox establishment to put forward solutions.”

Rabbi Morris Allen, founder of the Conservative movement’s Magen Tzedek — formerly Hekhsher Tzedek — ethical kashrut seal, said the new focus on ethical issues in the kashrut industry is a “victory for the Jewish people.” He credited his organization for spurring the change in attitude toward kashrut.

“Three years ago there was no consensus in the Jewish community about ethical issues in kosher food,” he said. “Now there is clear consensus.”

The role of the rabbi in monitoring ethical concerns remains a matter of debate. Yanklowitz said that, “Rabbis ought to be an inspiring force in helping to guide these values and laws.”

Genack argued that rabbis cannot be expected to take the place of trained government inspectors.

“They shouldn’t substitute themselves for governmental agencies that are by law and experience able to handle these issues more effectively,” he said. “But if they become aware of these issues, they shouldn’t ignore it.”

The RCA guidelines recognize rabbis’ limited knowledge of federal regulations. Rather than begin their own investigations, they are directed to bring their suspicions to the attention of the company in question or federal inspectors.

Once a supervising agency becomes convinced of wrongdoing, according to the guidelines, it “should act promptly and not remain, or even appear to remain, indifferent to such misconduct.” Actions may include removing its supervision; also the RCA may publicly condemn the violations.

“The bottom line,” Allen said, “is that what we’re seeing is a coalescing in the Jewish community around the shared notion that in the production of kosher food, ethical issues that impact a Jewish community are important.”

 
 

Petition calls for equal justice for Rubashkin

Area Chabad and Young Israel synagogues are encouraging their members to sign a petition imploring the U.S. Justice Department to show evenhandedness with Sholom Rubashkin, the former CEO of the Agriprocessors plant in Iowa that was the site of a massive immigration raid two years ago.

The petition, hosted at www.justiceforsholom.org and addressed to U.S. Attorney Stephanie Rose in the Northern District of Iowa, states that “Sholom Rubashkin has been treated harshly and vindictively in a prosecution that is likely to go down in history as a shameful permanent stain on American Justice. You have an opportunity today to correct the course that this case has taken by directing that Mr. Rubashkin be treated no differently in the Northern District of Iowa than similar defendants have been treated in other federal jurisdictions.”

The petition had garnered more than 24,000 signatures as of Wednesday.

Rubashkin was convicted in November on 86 out of 91 fraud charges and awaits sentencing. The petition, organized by a committee including members of Rubashkin’s family, alleges that Rubashkin has been singled out for unfair treatment that includes the denial of bail while awaiting sentencing and a harsher sentencing request from the prosecution than for those convicted of similar crimes.

Prosecutors have asked for a life sentence, according to Nathan Lewin, a Washington, D.C.-based lawyer representing Rubashkin who is not connected to the petition. Agreeing with the petition’s claim, Lewin said his client is being treated differently from any other defendant in these circumstances.

“The prosecutors in Iowa see this as a high-profile case and they can make a career out of it,” Lewin said.

The petition has drawn support from a number of Jewish organizations, including Agudath Israel of America, National Council of Young Israel, Rabbinical Council of America, and Chabad.

Rabbi Ephraim Simon, director of Friends of Lubavitch of Bergen County, forwarded an e-mail to his membership during Pesach, shortly after receiving a request from Chabad’s main office in Brooklyn. Despite some misconceptions, Simon said, the petition does not argue Rubashkin’s innocence or plead for leniency or to have his conviction overturned.

“It’s saying he should be punished according to the law of the land,” Simon said. “Let him be punished but let him be punished the same as others have been punished.”

That Rubashkin has been denied bail because he’s considered a flight risk to Israel is disconcerting, according to Simon.

“To say that somebody should deserve a different standard of justice because he is a Jew is something we should be concerned about,” he said.

Rabbi Michel Gurkov of Chabad of Wayne said that his members’ response to the petition has been generally positive. A number of people are upset about the circumstances surrounding the case, he said.

“It’s beyond our understanding why the prosecution is demanding such stringent punishment,” he said.

Gurkov also expressed worry that this case could set a precedent for other high-profile Jewish individuals facing criminal charges.

“The thought itself is very disconcerting,” he said.

Repeated calls to the Justice Department’s Office of Intergovernmental and Public Liaison — which the petition directs people to call to voice their concern — were met with either a busy signal or a recording that the office is receiving a high volume of calls.

Rabbi Pesach Lerner, executive vice president of the National Council of Young Israel, cited a handful of immigration raids at Swift & Company meatpacking sites in Colorado that rounded up more than 1,300 illegal immigrants as evidence of the disparity in Rubashkin’s treatment. The leadership of Swift was not treated as harshly as Rubashkin, according to Lerner. None of the company’s leaders was charged and the one union representative convicted of harboring illegal immigrants received a sentence of one year and a day.

“The bottom line is something doesn’t make sense here,” Lerner said. “He committed a crime, we accept that. The issue is the punishment doesn’t fit the crime.”

Federal authorities launched investigations into the Agriprocessors plant after a May 2008 immigration raid. After a month-long trial, a jury convicted Rubashkin last year on a range of fraud charges, money laundering, and failing to pay his suppliers. A week later, federal prosecutors dismissed all 72 immigration charges against Rubashkin because he had already been convicted of the more serious fraud charges.

“This is not a Madoff story. It’s not somebody who lined his pockets for wealth,” said Rabbi Neil Winkler of Young Israel of Fort Lee, who has not yet distributed the petition among his congregants but plans to speak about it soon. “It’s proper for every Jew to seek equal justice for Sholom Rubashkin, which is what we’re asking for.”

 
 

The never-ending lynching of Sholom Rubashkin

 

Kosher restaurants put ethical standards on the menu

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Kosher diners are starting to think about what goes on behind the counters where they eat, according to the Orthodox ethics organization Uri L’Tzedek. Three Bergen County restaurants have thus far signed up for the organization’s year-old ethical kashrut seal and a fourth will be announced later this month.

Rabbi Shmuly Yanklowitz, then a student at Yeshivat Chovevei Torah in Riverdale, N.Y., founded Uri L’Tzedek in 2007. The organization unveiled the Tav HaYosher — the ethical seal — last year to reward businesses that recognize what its Website refers to as “The right to fair pay. The right to fair time. The right to a safe work environment.”

So far, 39 restaurants in New Jersey, New York, Maryland, Pennsylvania, and Illinois have signed up.

“It’s the next wave of 21st-century Jewish activism,” Yanklowitz said. “The simple act of a consumer choosing where to buy a sandwich is a matter of Jewish ethics. The act is so easy and the effect is so meaningful.”

Locally, Teaneck’s Noah’s Ark and Shelly’s Café and the frozen yogurt retailer 16 Handles at the Westfield Garden State Plaza in Paramus have signed up for the certification. A third Teaneck restaurant is expected to be announced next week, Yanklowitz said, adding he could not disclose any further details of its identity.

In addition to the businesses that have received its certification, Yanklowitz said Uri L’Tzedek has received commitments from synagogues, federations, schools, and other organizations and individuals to patronize only restaurants that have the seal. The recognition also sends a message to the non-Jewish community that watched the Agriprocessors scandal unfold in the media, he said.

“Many consumers have become disillusioned by the ethics of the kosher community,” Yanklowitz said. “By upholding the name yashrut, ethics, it expands the kosher clientele.”

When a restaurant signs up, a Tav Yosher compliance officer — one of some 60 volunteers — reviews the business’s payroll and other records and speaks privately with the employees. These inspectors are trained to review business ledgers and fluent in other languages to better communicate with non-English-speaking workers. The inspectors then return every two to three months to check the books and interview employees. The certification is free to businesses.

The Rabbinical Council of Bergen County, which oversees the kosher supervision of most of the area’s kosher restaurants, would allow restaurants to make their own decisions regarding the seal, said its president, Rabbi Larry Rothwachs of Teaneck’s Cong. Beth Aaron. Rothwachs declined further comment until he could learn more about the certification.

Calls to the manager of the 16 Handles Paramus branch, which received the Tav HaYosher last week, were not returned. The 16 Handles in Manhattan also carries the certification.

Noam Sokolow, owner of Noah’s Ark and Shelly’s, told this newspaper that the community was outraged by ethical violations uncovered in recent years and wanted reassurance about local establishments.

“We’ve always felt we want our restaurants to be on a level where everyone feels comfortable,” he said. “It was an opportunity for us to have an additional agency supervising an aspect we feel is important.”

Neither of his Teaneck restaurants nor his Manhattan Noah’s Ark restaurant, which also carries the certification, had to make any changes before Uri L’Tzedek awarded the Tav Yosher, he said. After the certificate appeared in his stores’ windows, however, customers began thanking the management, he added.

“They want to see people here locally are following the rules,” he said.

The Jewish community as a whole reacted very responsibly following the Agri fallout and has overcome the challenges it presented, he said.

“As long as we can move forward and do something constructive with the information that we have, we become better people,” Sokolow said. “It’s an evolution.”

 
 

Rubashkin legal team vow to fight conviction, sentence

WASHINGTON – For years Sholom Rubashkin made his living as an executive in the country’s largest kosher meatpacking company. Now to keep him out of prison, his defense team is arguing that the judge in his financial fraud case made treif use of federal sentencing guidelines.

The judge, Linda Reade, who sits on the federal bench in Cedar Rapids, Iowa, used a federal point system in deciding this week to sentence Rubashkin to 27 years in prison.

Sophisticated crime? Check, that’s 2 points.

Fraud in the $20 million to $50 million range? Check, that’s 22 points.

Was he a boss of the criminal enterprise? Check, that’s 4 points.

Did he perjure himself? Another 2 points.

Reade determined that Rubashkin’s final score was 41 points, which according to the federal guidelines earns a sentence of 324 months to 405 months. The judge handed down the former — 27 years — plus another five years probation. Rubashkin also will be required to make restitution of nearly $27 million to several financial institutions.

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Sholom Rubashkin Courtesy of Rubashkin family

Rubashkin was convicted of defrauding two banks that had extended lines of credit to the slaughterhouse in Postville, Iowa. The ex-Agriprocessors executive contended that he was desperate to keep the business afloat and would have repaid the advances if he had the opportunity. Reade assessed the fraud at close to $27 million.

Rubashkin’s lawyers said the 27-year term amounted to a life sentence for the 51-year-old father of 10, and that that they planned to appeal the sentence — on top of an appeal of the conviction.

“This is a stain on American justice, and it gets to be a bigger and bigger stain all the time,” defense attorney Nathan Lewin told JTA.

Defense lawyers dismissed claims that anti-Semitism underpinned the case.

“Nobody responsible has made that allegation,” Lewin said.

Instead, the lawyers said, the “overzealousness” of the prosecution had more to do with the profoundly negative publicity in the lead-up to the May 2008 federal raid on the Agriprocessors plant.

In particular, Lewin cited “defamatory” media stories that described alleged abuses of the immigrants who worked at the Agriprocessors plant; claims by People for the Ethical Treatment of Animals that the cattle suffered immensely; and opposition from local unions because the shop was not organized.

Lewin said Rubashkin’s team planned to appeal for support through rallies such as the one he addressed Monday evening in the heavily Orthodox Borough Park section of Brooklyn.

“This is a man who did a lot more good for the Jewish community than not,” Lewin said. “He made kosher meat available for Jews in far-flung places.”

Lewin said he planned to appeal the sentence based on what he described as Reade’s adherence to mandatory sentencing guidelines, which the U.S. Supreme Court ruled unconstitutional in 2005.

However, Reade in her ruling appeared to say that she treated the guidelines as advisory, which the Supreme Court said was permissible.

“The court finds that a sentence within the computed advisory guidelines range is firmly rooted in credible evidence produced at trial and at sentencing,” she said.

Prior to the sentencing hearing last month, six former U.S. attorneys general and 17 other Justice Department veterans sent a letter to the judge criticizing prosecutors’ recommendation that Rubashkin receive life in prison.

The letter writers noted the “potential absurdity” in prosecutors using the federal sentencing guidelines to calculate a recommendation of life in prison for Rubashkin, saying the guidelines can produce sentencing ranges that are greater than necessary and “lack any common sentencing wisdom.”

In his interview with JTA, Lewin said he would show on appeal that Reade did not apply an “individualized process” in determining the sentence. She did not address motive, he said, nor did she take into account family issues or sentences for similar crimes.

Reade did not cite similar cases, and she dismissed motive outright in rejecting defense requests for “downwards adjustment” of the sentence. She did acknowledge, however, that the defense presented “substantial” evidence that Rubashkin was not motivated by greed but “out of a sense of duty to maintain his family business for religious purposes” — to maintain the supply of kosher meat.

“No matter defendant’s motive, he defrauded the victim banks out of millions of dollars,” Reade wrote. “He unlawfully placed his family business’s interest above the victim banks’ interest.”

Reade did address Rubashkin’s family situation, particularly his relationship with his autistic son. She rejected defense arguments in this case, saying that in the precedents, courts made it one of several factors.

In the case cited by the defense, the defendant had made “extraordinary efforts at restitution” — something Rubashkin did not , she argued. Reade also said that “in the vast majority of cases” that she has considered, loved ones are adversely affected, and that in this case — unlike in many others — Rubashkin’s son enjoys “a loving and competent mother as well as an extremely tight-knit, supportive extended family, all of whom are obviously devoted to him and accustomed to working with him.”

Another factor likely to be critical to the appeal of the sentencing is also central to the appeal of the conviction, the lawyers said: The judge allowed allegations of immigration law violations to be introduced both in the trial and sentencing stages, although she had earlier dismissed the immigration charges. Rubashkin was separately acquitted earlier this month of state charges of labor violations related to the alleged employment of immigrant children.

“Here’s the fallacy in all that — he was never convicted in any immigration charges,” Guy Cook, another of his attorneys, said in a conference call with Jewish media on Monday afternoon, after Reade had released her decision.

Bob Teig, a prosecution spokesman, said that the jurors considered the alleged immigration violations only as they pertained to the bank fraud charges. Teig said that Rubashkin had pledged to the banks to abide by the law, yet was in violation of immigration laws by knowingly accepting false identification documents.

“The jury finding was that he knew illegal aliens were being harbored at the plant and that he lied about that to the bank,” Teig said.

Reade cited the immigration law violations in making the case that Rubashkin knowingly defrauded the bank, but declined a prosecution request to add to the sentence because of the violations. However, the judge embedded a warning in her decision that she might change her mind if she is ordered to re-sentence on appeal.

“In the event the court is required to re-sentence Defendant, it reserves the right to revisit these upward departure provisions to determine whether their application would be appropriate,” she wrote.

Bring it on, Lewin said.

“If she’s warning us, it’s an empty warning,” he said. “We’re appealing it and we’ll get it reversed.”

JTA

 
 

Prosecution was overzealous in Rubashkin case

 
 
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