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entries tagged with: Sholom Rubashkin

 

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

 
 

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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