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Rubashkin: WSJ on egregious prosecutorial misconduct
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Orchid




 
 
    
 

Post Sun, Nov 27 2016, 9:25 pm
http://www.wsj.com/articles/ob.....78930

Obama Should Pardon This Iowa Kosher-Food Executive

Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony.


By
Charles B. Renfrew and

James H. Reynolds

Nov. 27, 2016 3:35 p.m. ET

19 COMMENTS

One of the Roman poet Juvenal’s best-known lines is quis custodiet ipsos custodes. Who will watch the watchers? Some 2,000 years later, this question is especially relevant for America’s criminal-justice system, given the power wielded by federal prosecutors. Too often their profound authority leads to significant abuse, as demonstrated by the case of Sholom Rubashkin.

Mr. Rubashkin, a 57-year-old father of 10, is the former vice president of Agriprocessors, a kosher food processor based in Postville, Iowa. On May 12, 2008, U.S. Immigration and Customs Enforcement agents raided the company’s plant and arrested hundreds of the firm’s workers who were undocumented immigrants. This led the company to file for bankruptcy several months later.

Shortly thereafter, Mr. Rubashkin was arrested by federal officials and charged with fraud in the U.S. District Court, where one of us formerly served. The government alleged that he illegally shifted money that should have been deposited as collateral for a loan from the St. Louis-based First Bank.
Although Mr. Rubashkin was convicted, he did not intend to cause any loss to the bank. But the federal prosecutors who charged him wanted to extract a pound of flesh, and then some—even at the cost of illegally overstepping their bounds and interfering in the bankrupt company’s sale.

As part of its bankruptcy filing, independent assessors valued Agriprocessors’ assets at $68.6 million. Yet evidence that the prosecutors hid and that Mr. Rubashkin’s attorneys found over the past few years proves that the prosecutors stymied the bankruptcy trustee from making a sale to prospective buyers at a reasonable price. Instead, they warned that buyers would forfeit the business if any member of the Rubashkin family maintained a connection to the firm, although no other family member had been charged.

Moreover, the Rubashkins’ involvement was a critical part of Agriprocessors’ value. The Orthodox Jewish family—especially Sholom’s father, the company’s founder—had significant institutional knowledge and expertise in the kosher food-processing business. Absent the family’s know-how, the company became significantly less attractive to buyers.

The prosecutors achieved their intended goal. Nine prospective bidders walked away from the sale—including one that had offered $40 million. The business was sold for $8.5 million, a fraction of its actual worth, ensuring that the bank would not be paid back for the money it was owed. Even the bank, the victim in the case, objected in writing to the prosecutors concerning the government’s actions. Here, too, the prosecutors unjustly concealed the bank’s objections from the defense.

Under federal mandatory-minimum sentencing guidelines for bank fraud, an offender’s sentence is directly linked to the loss incurred by the bank that was defrauded. The prosecutors’ meddling meant that the bank incurred a $27 million loss. This enabled the prosecutors to seek a staggering life-in-prison sentence for Mr. Rubashkin, which they later lowered to a still unacceptable quarter-century. The prosecutors concealed their role by soliciting false testimony from Paula Roby, counsel for the bankruptcy trustee, who said that the prosecutors did not interfere in the bankruptcy sale process. At sentencing, the prosecutors misled the court into believing this meddling never happened, a fact that was only recently discovered.

Mr. Rubashkin was found guilty on financial-fraud charges and sentenced to 27 years behind bars. Had justice truly been served, he would have received less than four years. In April 2010, after the conviction but prior to sentencing, a bipartisan group of six former attorneys general and more than a dozen other prominent legal experts wrote a letter to the judge in which they urged her to show Mr. Rubashkin leniency.


This call has grown into a clamor in the intervening six years. In April, a bipartisan group of four former U.S. attorneys general, two former FBI directors and dozens of law professors and former Justice Department officials wrote to the current U.S. Attorney for the Northern District of Iowa, Kevin Techau. They described Mr. Rubashkin’s sentence as “patently unjust” and asked him to act to remedy what the letter called “shocking new evidence that prosecutors in your office knowingly presented false and misleading testimony at the sentencing hearing.”

Mr. Rubashkin has now served more than seven years of his sentence—more than twice as much as he would have served had his punishment fit his crime. Every day that he spends in prison is a day that he should be spending as a free man, with his family.

That is why we urge President Obama to pardon Mr. Rubashkin before he leaves office in January. Congress should also take steps to rein in the serious problem of prosecutorial abuse, which has elicited bipartisan concern from many lawyers, legal scholars and federal judges. One possible reform includes making it a felony for prosecutors to knowingly conceal or alter evidence that bears on a case’s outcome.

The watchers must be watched. If they are not, the criminal-justice system will too often deliver the kind of injustice that Sholom Rubashkin is experiencing.

Mr. Renfrew was a U.S. District Court judge in the Northern District of California (1972-80) and U.S. deputy attorney general (1980-81). Mr. Reynolds was the U.S. attorney for the Northern District of Iowa (1976-82).
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MagentaYenta




 
 
    
 

Post Sun, Nov 27 2016, 9:28 pm
Do you know if he was sentenced under standard mandatory minimums?
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Orchid




 
 
    
 

Post Sun, Nov 27 2016, 9:34 pm
MagentaYenta wrote:
Do you know if he was sentenced under standard mandatory minimums?


Yes, he was. But the standard mandatory minimums was based on how much money the bank lost, and what the Rubashkin team long knew, and has recently been confirmed, was that the loss was not driven by Rubashkin's actions, but by prosecutorial misconduct (ie, that they illegally hinged every possible sale on a "no Rubashkin" rule - then denied it- which caused the business to sell for a fraction of its true value - viola, a large loss to the bank. Absent that rule, the business would have sold for its fair market value, and the loss to the bank would have been ZERO). Details in the article above.
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MagentaYenta




 
 
    
 

Post Sun, Nov 27 2016, 9:40 pm
Orchid wrote:
Yes, he was. But the standard mandatory minimums was based on how much money the bank lost, and what the Rubashkin team long knew, and has recently been confirmed, was that the loss was not driven by Rubashkin's actions, but by prosecutorial misconduct (ie, that they illegally hinged every possible sale on a "no Rubashkin" rule - then denied it- which caused the business to sell for a fraction of its true value - viola, a large loss to the bank. Absent that rule, the business would have sold for its fair market value, and the loss to the bank would have been ZERO). Details in the article above.


Fascinating. This looks like an interesting rabbit hole. I'll definitely be looking deeper into this story.
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mommy3b2c




 
 
    
 

Post Sun, Nov 27 2016, 9:42 pm
Orchid wrote:
Yes, he was. But the standard mandatory minimums was based on how much money the bank lost, and what the Rubashkin team long knew, and has recently been confirmed, was that the loss was not driven by Rubashkin's actions, but by prosecutorial misconduct (ie, that they illegally hinged every possible sale on a "no Rubashkin" rule - then denied it- which caused the business to sell for a fraction of its true value - viola, a large loss to the bank. Absent that rule, the business would have sold for its fair market value, and the loss to the bank would have been ZERO). Details in the article above.


Very well explained. I pray for rubashkin to be freed every week by candle lighting. I will continue to pray that Obama does the right thing.
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Orchid




 
 
    
 

Post Sun, Nov 27 2016, 9:52 pm
MagentaYenta wrote:
Fascinating. This looks like an interesting rabbit hole. I'll definitely be looking deeper into this story.


This is not a new development. For example, you can read this:

http://www.desmoinesregister.c.....5100/

Editorial: Did federal prosecutors railroad Rubashkin?
When it comes to criminal prosecutions, the end never justifies the means.

Prosecutors who take shortcuts in winning convictions or lengthy sentences are not only violating the rights of the accused, they’re also undermining our entire system of justice.

That’s worth remembering when considering the ongoing legal battle over the 27-year prison sentence handed down to Sholom Rubashkin, the former head of Postville’s Agriprocessors slaughterhouse.

In 2009, Rubashkin was convicted of bank fraud and money laundering. On its face, the lengthy prison sentence seems entirely justified. Rubashkin not only hired hundreds of illegal immigrants, he helped provide them with phony identification documents. He also defrauded his lenders, in part by laundering money through other businesses he controlled.

He gave $4,000 to a co-conspirator and encouraged him to flee the country. He told potential government witnesses he would pay them a “salary” during any time they spent in prison. He engaged in the wholesale destruction of evidence, even while on pretrial release, and he never acknowledged any criminal wrongdoing or expressed any remorse for his actions.

But now a letter signed by more than 100 individuals — including federal judges and four former U.S. attorneys general — alleges that prosecutors in the case acted improperly. The letter comes four years after 80 former federal judges asked the U.S. Supreme Court to hear Rubashkin’s appeal, and it coincides with court pleadings that claim prosecutors improperly inflated Rubashkin’s sentence.

Prosecutors, judges decry Rubashkin "witch hunt"
Agriprocessors was the nation’s largest kosher-meat company, with more than $68 million in assets, when immigration officials raided the plant in 2008. The company filed for bankruptcy six months later, and was eventually sold for far less than had been anticipated.

Rubashkin's attorneys blame federal prosecutors for the low sale price, which they say resulted in Agriprocessors’ lenders losing tens of millions of dollars, which in turn led to Rubashkin getting a longer prison sentence.

Specifically, the lawyers argue that prosecutors attempted to ensure that none of the defendant’s family members were connected to potential buyers of Agriprocessors, and warned prospective buyers of dire consequences if any Rubashkins were involved in the purchase. Several bidders say prosecutors were threatening and hostile toward them. “We ultimately decided not to purchase the business, in large part because of the threats from the government,” one potential buyer said in a sworn affidavit.

In court documents, prosecutors contend their statements “were not contrived threats designed to diminish the value” of Agriprocessors, but were warnings intended to alert potential buyers of the risks they’d face by associating with criminals.

Plainly put, that argument is hard to swallow, but what matters here isn’t so much the prosecutors’ motives as the effect of their actions. Did they, intentionally or otherwise, ratchet up the losses sustained by Agriprocessors’ creditors and later use those losses to increase Rubashkin’s sentence?

And did they adopt a policy of guilt-by-association in barring any member of the Rubashkin family — including people never accused of wrongdoing — from involvement in Agriprocessor’s successor?

The evidence indicates they did just that, which helps to explain why so many well-respected former prosecutors and judges are up in arms over their actions.


James Reynolds, former U.S. attorney for the Northern District of Iowa, calls the prosecutors’ actions “insidious” "and says that “had this kind of unfair, underhanded and unnecessary misconduct occurred during my tenure, you can be absolutely certain that the perpetrators would have faced consequences, the very least of which would have been the loss of their job.”

Rubashkin’s 27-year prison sentence can be justified any number of ways — but not if prosecutorial misconduct was involved. Just as the head of Agriprocessors was forced to answer for his crimes, the U.S. Attorney’s Office should be forced to answer for its actions in USA vs. Rubashkin.
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groisamomma




 
 
    
 

Post Sun, Nov 27 2016, 9:55 pm
MagentaYenta wrote:
Fascinating. This looks like an interesting rabbit hole. I'll definitely be looking deeper into this story.


Why is this news to you? Do a search on this site and read all the threads. Please don't start the vitriolic rhetoric as some posters have done in past Rubashkin threads. Those are the same liberals that would free an axe murderer sooner than a fellow Yid.
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mommy3b2c




 
 
    
 

Post Sun, Nov 27 2016, 9:58 pm
groisamomma wrote:
Why is this news to you? Do a search on this site and read all the threads. Please don't start the vitriolic rhetoric as some posters have done in past Rubashkin threads. Those are the same liberals that would free an axe murderer sooner than a fellow Yid.


It makes my blood boil. Even if he did everything on purpose , he still does not deserve to sit in prison for almost 30 years.
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MagentaYenta




 
 
    
 

Post Sun, Nov 27 2016, 10:00 pm
groisamomma wrote:
Why is this news to you? Do a search on this site and read all the threads. Please don't start the vitriolic rhetoric as some posters have done in past Rubashkin threads. Those are the same liberals that would free an axe murderer sooner than a fellow Yid.


It's not news to me since I never followed the story. It did happen 8 years ago. And I have no intention of reading the old threads on this, it's my preference to do the research on the the story independently and perhaps read some of the court proceedings.
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Orchid




 
 
    
 

Post Sun, Nov 27 2016, 10:04 pm
Actually, I meant to post this instead of the previous!

http://www.desmoinesregister.c.....5848/

Prosecutors, judges decry Rubashkin "witch hunt"

Charles B. Renfrew and James H. Reynolds 8:59 a.m. CDT May 19, 2016

The American legal system is often held to be among the best in the world, but it is not when someone is the victim of conduct that is neither just nor legal. A case in point is Sholom Rubashkin, the former vice president of Agriprocessors, America’s largest kosher meat-packing plant, based in Postville.

There is new evidence of egregious prosecutorial misconduct that led to Rubashkin’s 27-year prison sentence for financial fraud, as documented in a recent merits brief filed by his lawyers in March. An unprecedented letter, recently sent to Kevin Techau, U.S. attorney for the Northern District of Iowa, signed by 107 former high level Department of Justice officials, FBI directors, federal judges and prestigious law professors attests to the extraordinary prosecutorial misconduct which exacted the most possible punitive sentence for Rubashkin. Several former attorneys general, including John Ashcroft and even Michael Mukasey, who was the attorney general at the time the case was actually being prosecuted, are among the signatories of the letter. A first-time offender, Rubashkin received an extreme sentence that is virtually unprecedented in the annals of non-violent offenses, far surpassing those of many rapists and murderers.

The explanation as to “why” the pursuit of Sholom Rubashkin was so overzealous that it bordered on a veritable witch hunt still remains elusive, but the clarification as to “how” is now punctiliously laid out in both the merits brief and the letter to Mr. Techau: There was false testimony and willful manipulation, and that makes this a shocking case of prosecutorial misconduct.

From the outset, prosecutors determined that Rubashkin’s sentence (in terms of years) would correspond with the amount of money owed to First Bank of St. Louis, from which Agriprocessors had originally secured a $35 million dollar loan (which it was paying back in an ongoing and timely manner). After an unprecedented government immigration raid brought the company to its knees, arresting 389 of its employees and sealing both its doors and ultimate fate, Agriprocessors filed for bankruptcy. Agriprocessors’ sole owner, Aaron Rubashkin (father of Sholom) was never deemed culpable of any crime nor slapped with a single federal count. Yet, despite his complete lack of complicity, Aaron Rubashkin was effectively barred by Sholom’s prosecutors from stepping in and taking over the company (or, for that matter, having any role at the company), so the possibility of Agriprocessors resurrecting itself and making good on its loan to First Bank was doomed.

When a slew of bidders came forward offering to buy the company (one individual wanted to purchase it for $40 million which would have effectively repaid the bank loan in its entirety), prosecutors deliberately thwarted the prospects by constructing a “No Rubashkin” rule, which was completely illegal but highly effective in quashing Sholom Rubashkin’s chances for a fair sentence. Potential buyers were told by Sholom’s prosecutors in no uncertain terms that Aaron Rubashkin — who was key to running the complex business and whose trustworthiness in the kosher meat market was crucial to the company’s success — would not be allowed to help administer or even advise them in the smallest of matters, effectively scaring them off from making the purchase. Prosecutors kept turning away interested parties, manipulating the bids so that the lowest one — for $8.5 million — was the only one that was accepted, leaving an outstanding debt of $27 million, thus resulting in Rubashkin’s cruel and unjust concomitant sentence of 27 years.

The prosecutors’ priority was clear albeit bizarre: They were more interested in making sure that Aaron Rubashkin, who was never charged with a crime, be punished by taking away his business that he had spent decades building, than they were in restoring the forfeited money to the bank lender, the primary victim in the case. The prosecutors did so in the face of pleas from both the victim bank and the independent court-appointed bankruptcy trustee that the prosecutors’ interference in the bankruptcy sale process would scare off potential buyers making it impossible for the company to be sold for a fair value. These pleas fell on deaf ears and the resulting low-ball sale sealed Sholom’s fate.

What’s more, at the sentencing, these same prosecutors brazenly put on false testimony that there wasn’t a “No Rubashkin” rule, thereby misleading the judge into finding that Sholom was responsible for the bank’s $27 million loss. That loss served as the foundation for his 27-year sentence.



Rubashkin, who has already served nearly seven of those years, would be 71 when released. He is the father of 10, including an autistic child with whom he was very close and who remains severely devastated by his father’s absence, as is of course his entire family. The human toll of the prosecutors’ vicious agenda against Rubashkin has been apocalyptic. An entire family is being destroyed by a draconian sentence that was meted out based on the underpinnings of fraud and deceit.

With potential buyers being thwarted and intimidated at every turn, and a false witness being brought into the court to flagrantly lie and counter bidders’ testimony, the legal wrongdoing evident in the Rubashkin case constitutes an extraordinary miscarriage of justice. These facts are sufficient to warrant speedy action. As former Department of Justice officials, we call on Mr. Techau and his office to take any and all action to immediately release Sholom Rubashkin.

Charles B. Renfrew was the U.S. District Court judge in the Northern District of California from 1972-1980 and U.S. deputy attorney general from 1980-1981. James H. Reynolds was the U.S. attorney for the Northern District of Iowa from 1976-1982.
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groisamomma




 
 
    
 

Post Sun, Nov 27 2016, 10:12 pm
If Obama pardons Rubashkin I will be pleasantly surprised, but somehow I don't see him doing the right thing here. You never know. For SMR and his family's sake I hope he does come through.
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oliveoil




 
 
    
 

Post Sun, Nov 27 2016, 10:14 pm
groisamomma wrote:
Why is this news to you? Do a search on this site and read all the threads. Please don't start the vitriolic rhetoric as some posters have done in past Rubashkin threads. Those are the same liberals that would free an axe murderer sooner than a fellow Yid.


Wow. Way to overreact! I think you are reading a whole lot into that comment. All she said was "Thanks, interesting, I'll have to read more about that."

Chill, woman!
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groisamomma




 
 
    
 

Post Sun, Nov 27 2016, 10:22 pm
oliveoil wrote:
Wow. Way to overreact! I think you are reading a whole lot into that comment. All she said was "Thanks, interesting, I'll have to read more about that."

Chill, woman!


Okay, but generally when someone uncovers new information the entire conversation starts at Square 1. I really don't want to see this thread go down that path.

Magenta, I'm sorry if I came across too sharp.
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Laiya




 
 
    
 

Post Sun, Nov 27 2016, 10:27 pm
The article was very well written, but it doesn't even address half the egregious conduct. For ex. the other case they brought against him claiming that underage immigrants were handling dangerous machinery--and using those charges to prejudice the court against SMR's character in the fraud case.

Then when that first case was entirely dismissed because the witnesses admitted to having been paid off to testify against him, it was still too late to revive his character in the fraud case. Sickening.
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Laiya




 
 
    
 

Post Sun, Nov 27 2016, 10:34 pm
MagentaYenta wrote:
Fascinating. This looks like an interesting rabbit hole. I'll definitely be looking deeper into this story.


If you're interested here is the "friend of the court" brief. It says it's signed by 86 AG's, lawyers, judges etc. IIRC from the time, the number and stature of participants who signed the brief was said to be unprecedented.

https://justiceforsholom.org/w.....f.pdf
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marina




 
 
    
 

Post Mon, Nov 28 2016, 12:37 am
Does anyone know if his attorneys filed for clemency? I feel like we would have all heard if they did.
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Raisin




 
 
    
 

Post Mon, Nov 28 2016, 5:12 am
This is really shocking. Why doesn't the bank sue the prosecutors for losing them millions of dollars?

I guess the only winner here is the buyer of the business who clearly got a great deal.
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debsey




 
 
    
 

Post Mon, Nov 28 2016, 10:35 am
oliveoil wrote:
Wow. Way to overreact! I think you are reading a whole lot into that comment. All she said was "Thanks, interesting, I'll have to read more about that."

Chill, woman!


It's frustrating when you read about Rubashkin, where there was clear prosecutorial misconduct and a clearly uneven playing field - and those of us in his community, who should have his back, are busy bashing him to promote an agenda.

We are all Rubashkin, people! I still maintain that if an African American defendant had been treated with the same level of unfairness, all the liberal Jews who are bashing Rubashkin would be up in arms protesting.

So I'm with Groisamama - I know exactly the frustrated place she is coming from.
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naturalmom5




 
 
    
 

Post Mon, Nov 28 2016, 10:43 am
And yet Hillary yemach shemo, almost became president and what she did is a million times worse that SR
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debsey




 
 
    
 

Post Mon, Nov 28 2016, 11:11 am
naturalmom5 wrote:
And yet Hillary yemach shemo, almost became president and what she did is a million times worse that SR


One of the reasons people were hesitant to vote for her. How can she relate to those of us who live within the law and are subject to its penalties?
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