Coalition Protests Iowa Judge’s 27-Year Term for Rabbi-Businessman

Sholom Rubashkin

An unusually broad, bipartisan coalition of 50 members of congress, 75 other legal experts and others filed a friend of the court brief with the U.S. Supreme Court April 2 protesting prosecution irregularities and a 27-year-prison sentence for an Iowa man convicted of employing illegal immigrant workers in a kosher meat-packing plant.

Paul D. ClementFormer Bush Administration Solicitor General Paul Clement, left, filed a friend of the court brief on behalf of the defendant, who is the former vice president of Agriprocessors and a rabbi. “Sholom Rubashkin," said Clement of the defendant, pictured at right, "was given an unusually harsh sentence for his actions. In my entire career, I cannot recall a similar instance of harsh punishment for a non-violent, first-time offender with a long record of charitable service to his community.”

Authorities maintain his sentence was merited in May 2008, when more than 600 federal agents descended on his meat-packing plant in the largest immigration raid in United States history. Some 389 undocumented workers, mostly Mexican, were arrested in Postville, whose census lists just over 2,000 inhabitants in Iowa’s northeast corner. U.S. District Judge Linda R. Reade, a former federal prosecutor who serves as chief judge of Iowa's northern district, sentenced the defendant to 27 years in prison on various fraud charges afer meeting secretly with prosecutors to help plan the raid in advance.

Separately this week, immigration officials said April 2 they arrested in a six-day sweep more than 3,100 criminals and others living in the country illegally. This was the largest such effort in the agency’s history, and it fuels the national debate over the Obama administration’s stepped-up deportation policies. The Washington Post reported that the operation — named  “Cross Check” — nabbed 3,168 offenders across the nation, including in all 50 states, three territories and the District of Columbia. "Of those, 1,477 taken into custody had felony convictions such as murder, manslaughter, attempted murder, kidnapping, child abuse, assault and other offenses."

Unlike the felons targeted in that raid, however, Rubashkin is accused of white-collar offenses and had no previous record. His review request to the Supreme Court relies in part on a vital 1988 Supreme Court decision on judicial recusal on bias grounds that our Justice Integrity Project has come to regard as extremely important for both criminal and civil litigants. Yet many litigants, their attorneys and reviewing courts sometimes overlook the case entirely.

But Rubiskan's attorneys Clement and Nathan Lewin did not. One of their arguments is whether, under 28 U.S.C. § 455(a) and the Supreme Court’s decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, a district judge who has participated extensively in the planning of an immigration raid on a plant may, without disclosing to trial counsel the extent of her participation, fail to recuse herself and preside at the criminal trial of the manager of the plant.

By contrast, many litigants rely on attorneys who in some instances are doubtless too timid to challenge a judge. So, they fail to cite the Liljeberg case even in extreme cases of judicial bias. In Liljeberg, a civil case arising in Louisiana, the court held among other things that a judge has a duty to disclose conflicts to litigants and recuse if an appearance of bias would otherwise occur. In the ongoing federal prosecution on corruption charges of former Alabama Gov. Don Siegelman, for example, the trial judge and appellate courts have ruled that Siegelman, not the judge, had a duty to ferret out before his trial evidence that his judge might have been biased. (That evidence included unchallenged documentation that the judge controlled as by far the largest stockholder a company receiving some $300 million in federal contracts, and also sworn evidence from a whistleblower, disputed but never examined in depth to resolve, that the judge "hated" the defendant and would "hang" him because of a long-standing political grudge.)

Clement, Solicitor General from 2005 to 2008 and lead counsel for the Supreme Court stage, says the appellate court decision in Iowa case "raised issues of extraordinary importance to criminal defendants and to the proper functioning of the criminal justice system as a whole."

Clement's participation illustrates the bipartisan nature of the Rubashkin case in Iowa. The Republican former law clerk to Justice Antonin Scalia protested the results of a raid initiated by the Bush Justice Department and a trial governed by a judge appointed to the bench in 2002 by President Bush. Clement has been much in the news recently for other high-profile cases. Last week, for example, he represented 26 states (including Iowa) in their Supreme Court arguments against the Obama administration's individual mandate for health insurance. This month, he will urge the justices to uphold Arizona’s immigration enforcement law.

The Obama administration is defending previous actions in the Rubashkin case, including confirmation of Rubashkin's sentence by the U.S. Eighth Circuit Court of Appeals.

After being approached by Rabbi Zvi Boyarsky of the Adelph Institute, a services and reform organization for prisoners families, our Project is writing about this case today primarily because, as Clement and other Rubaskin supporters argue, the sentence for a first-offender seems remarkably harsh for him and his 10-child family. Also, it's yet-another worrisome sign that our society is handing over too much power to prosecutors and judges, who sometimes work out plea bargain agreements for major offenders to walk away from crimes in sentences sometimes measured at a tenth of the time, or less.

Our Project is aware of how difficult it is to assemble a protest coalition of such scope and stature. Also, I know some of the petition signers and respect their judgment. Some are members of Congress. Among the law enforcement professionals is James Pickerstein, formerly chief assistant U.S. Attorney in Connecticut when I covered his office on a daily basis as a newspaper reporter from 1976 to 1981. I wrote an in-depth magazine story, "Counterfeiting, Coke and Contract Killing," about how Pickerstein as a trial attorney obtained sentences of up to 40 years for various defendants in a drug case. But that involved murderers who actually killed a man in cold blood -- and with conspirator floating a plan to kill their federal prosecutor and the presiding judge.

Another former prosecutor whose opinion I value is Bennett Gershman, now a professor at Pace Law School. I've followed his work for years. He co-authored a Huffington Post column about this case last with Joel Cohen, a white-collar litigator and adjunct professor at Fordham School of Law. They described this case as “one of the most bitterly contested and controversial criminal trials in many years.“ They continued:

What is unusual here, even startling, is that Judge Reade was the trial judge in the Rubashkin case who secretly met with the prosecutors in planning and carrying out the raid and arrest of Rubashkin, presided at Rubashkin's trial without ever disclosing those meetings, and sentenced Rubashkin to more jail time than even the prosecutors asked for.

They cited a number of other irregularities in noting the extent of the protest, which includes six former U.S. attorneys general. Last September, a three-judge panel of the Eighth Circuit affirmed Rubashkin’s conviction and sentence. The full court then denied Rubashkin’s petition for rehearing. The details of the case are in links listed below, with an elaboration of issues in the appeals court arguments by the defendant here and by the government here. More generally, Gershman and Cohen concluded:

The real concern is whether the public will lose faith in the justice system's ability to do justice. The overarching principle of judicial ethics is that a judge must be impartial not only in fact, but also in appearance. The test for an "appearance of impropriety" is whether a judge's impartiality might reasonably be questioned "by the average person on the street."

So, looking at all the facts in the Rubashkin case, the average member of the public has cause to be concerned about whether Judge Reade's conduct created an appearance of partiality toward the government as well as an appearance of prejudice toward Rubashkin that would require a new trial.Brett Tollman

Utah attorney Brett Tolman, active in the petitions on the defendant's behalf, will describe the reasons as guest on my Washington Update radio show Thursday. Tolman, brings expert experience as former legal counsel to the U.S. Senate Judiciary Committee and as U.S. attorney for Utah, nominated in 2006 by President Bush. He is a widely published author, including a 2010 law review article, That Ain't Kosher, about this case. He currently co-chairs his firm's white-collar crime practice at his Salt Lake-based firm, Ray Quinney & Nebeker P.C.

Here are excerpts from a letter that he co-signed with six former U.S. attorneys general, three from each major party, along with other senior former officials of the Justice Department:

[T]he prosecution of Mr. Rubashkin has been characterized by an unusual level of aggressiveness, if not overzealousness. From trying to keep him in jail early in the case based in part on specious if not outright discriminatory arguments about his potential flight to Israel (a tactic that was protested by numerous members of the Jewish community to former Attorney General Mukasey and his colleagues and was ultimately rejected on appeal by the district judge), to the return of no fewer than seven superseding indictments based largely on the same core set of facts (raising the specter of grand jury abuse), to the criminalization of the use of undocumented employees in a manner not employed against numerous other companies with similar violations, the government's approach to this prosecution has drawn scrutiny and criticism from  many quarters.

Now having been convicted of various bank fraud-related offenses, and despite a jury determination that Mr. Rubashkin did not commit the offenses for personal gain and did not personally profit from his conduct, and despite his extraordinary family circumstances (10 children, including a severely autistic 16-year-old son) and exceptional history of charity and good works, the government is seeking a sentence of life imprisonment -- the functional equivalent of the sentences meted out to the likes of Bernard Madoff, 9/11 terrorists, mafia kingpins and similarly culpable defendants.

To be sure, the Justice Department of both the Bush and Obama administrations have pushed for these results,and the courts so far have endorsed the results for the most part. That's what creates a real-life drama -- and tension with the former DOJ officials.

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Related News Coverage

Yeshiva World, Sholom Rubashkin Legal Team Files Petition for Certiorari, Staff report, April 2, 2012. Lawyers for Sholom Rubashkin today filed a petition for writ of certiorari for the United States Supreme Court. Rubashkin, who is serving a 27-year sentence for bank fraud, is seeking relief from the Supreme Court because the Eighth Circuit Court of Appeals refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair. The newly discovered evidence showed that the trial judge had participated for seven months before the immigration raid on Rubashkin’s meat-packing plant in planning for the raid. She and the prosecutors failed to disclose these meetings to Rubashkin’s trial lawyers. Rubashkin is also seeking relief from the Supreme Court because the Eighth Circuit upheld his extraordinary 27-year sentence as “reasonable” even though the trial court did not consider whether that sentence would result in unwarranted disparities among similarly situated defendants, as required by federal sentencing law. Rubashkin is represented by Paul Clement of Bancroft PLLC and Nathan Lewin of Lewin & Lewin, LLP.

Washington Post, Immigration officials arrest more than 3,100, Annie Gowen and Jerry Markon, Aril 2, 2012. U.S. Immigration and Customs Enforcement officials said Monday that they had arrested more than 3,100 criminals and others living in the country illegally, the largest such effort in the agency’s history, adding fuel to the national debate over the Obama administration’s stepped-up deportation policies. The six-day operation — dubbed “Cross Check” — nabbed 3,168 offenders across the nation, including in all 50 states, three territories and the District of Columbia. Of those, 1,477 taken into custody had felony convictions such as murder, manslaughter, attempted murder, kidnapping, child abuse, assault and other offenses.

On Brief / Iowa's Appellate Blog, Rubashkin Hires Former SG Paul Clement for Supreme Court Challenge, Ryan Koopmans, Feb. 10, 2012. Former Agriprocessors manager Sholom Rubashkin is appealing his conviction and sentence to the U.S. Supreme Court, and he’s hired former Solicitor General Paul Clement for the job. In 2008, Rubashkin was arrested in connection with the immigration raid of the Postville Agriprocessors plant, which at that time was one of the largest producers of kosher meat in the country. Although the federal government later dropped immigration charges against Rubashkin, a jury convicted him of 86 counts of bank fraud.  For that, Judge Linda Reade sentenced Rubashkin to 27 years in prison.

Wall Street Journal, Sholom Rubashkin Loses Bid for New Trial, Nathan Koppel, Sept. 16, 2011. The 8th Circuit today declined to grant a new trial for Sholom Rubashkin (pictured), the former manager of an Iowa kosher meat-processing plant who was sentenced last year to 27 years in prison on bank, mail, and wire fraud charges. Rubashkin’s lengthy sentence sparked outrage among fellow members of his Orthodox Jewish community. And some former U.S. attorneys general, including Janet Reno, William Barr, and Edwin Meese III, lobbied for a lighter sentence for Rubashkin. But in sentencing Rubashkin to 27 years, Iowa federal judge Linda Reade said he had repeatedly defrauded banks out of millions of dollars.

New York Times, As Wall St. Polices Itself, Prosecutors Use Softer Approach, Gretchen Morgenson and Louise Story, July 7, 2011. As the financial storm brewed in the summer of 2008 and institutions feared for their survival, a bit of good news bubbled through large banks and the law firms that defend them. Federal prosecutors officially adopted new guidelines about charging corporations with crimes — a softer approach that, longtime white-collar lawyers and former federal prosecutors say, helps explain the dearth of criminal cases despite a raft of inquiries into the financial crisis. Though little noticed outside legal circles, the guidelines were welcomed by firms representing banks. The Justice Department’s directive, involving a process known as deferred prosecutions, signaled “an important step away from the more aggressive prosecutorial practices seen in some cases under their predecessors,” Sullivan & Cromwell, a prominent Wall Street law firm, told clients in a memo that September. The guidelines left open a possibility other than guilty or not guilty, giving leniency often if companies investigated and reported their own wrongdoing. In return, the government could enter into agreements to delay or cancel the prosecution if the companies promised to change their behavior. But this approach, critics maintain, runs the risk of letting companies off too easily.

National Law Journal, Justice denied: Rubashkin's sentence is wholly inappropriate for the crimes of which he was convicted, Robert Steinbuch and Brett Tolman, Aug. 16, 2010. 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. 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.

Huffington Post, When a Judge Stumbles, Do "Appearances" Matter? Bennett L. Gershman and Joel Cohen, June 13, 2011. Rubashkin was arrested for immigration-related crimes, but re-arrested and tried on the financial crimes. Whether Rubashkin is guilty and deserves the astonishingly harsh sentence are pertinent issues that will be argued on his appeal. But just as pertinent -- maybe more so -- is the conduct of the judges, trial and appellate, called upon to administer justice in his case.