Rubashkin Sentence Seen As ‘Piling On’

But debate over whether 27-year rap will hold up on appeal.

06/23/10
Staff Writer
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The 27-year bank fraud sentence imposed Tuesday on Sholom Rubashkin, former manager of what was once the nation’s largest kosher slaughterhouse, was widely viewed by law professors and criminal defense attorneys alike as too severe.

“A sentence of 27 years is beyond excessive, it is patently offensive — especially for a nonviolent crime in a case where the defendant had no prior criminal record,” said noted criminal attorney Ben Brafman, who was not involved in the case. 

James A. Cohen, associate professor of law at Fordham University School of Law who was also not involved in the case, said of the sentence: “There’s a concept in sports known as ‘piling on.’ This situation could fairly be described as piling on.”

A stiff sentence had been expected because the federal judge, Linda Reade of Cedar Rapids, Iowa, is “the second-worst sentencer in the country, and lawyers who have appeared before her said she is cruel,” said Washington, D.C., attorney Nathan Lewin, who will handle Rubashkin’s appeal.

But few expected her to impose a sentence that is two years more than federal prosecutors requested following his November conviction on 86 counts of financial fraud and related offenses. In a 52-page sentencing memorandum, Reade explained that she added the two additional years because she believes Rubashkin lied on the witness stand. 

“It’s called obstruction,” explained Cohen. “Whenever a defendant makes a statement and the case goes against him, the judge is entitled to tack on points [jail time] for obstruction. There is no question she is entitled to do that, but she is not obligated to do it. It sounds as though this judge applied a mechanistic approach to the [federal sentencing] guidelines.”

The guidelines are designed to help judges decide an appropriate sentence, but in a series of rulings beginning in January 2005 the U.S. Supreme Court has held that these guidelines are not mandatory.

“Judges must look at them but are not obligated to follow them,” Cohen said. “The standard of review for a sentence now is whether it was reasonable. In this particular case, it sounds as if there is considerable controversy over the application of the guidelines and whether 27 years for a guy in these circumstances is reasonable.”

Unless the sentence is overturned, Rubashkin, who is Chabad Lubavitch, would be required to serve about 23 years before being eligible for release. Reade said he must then remain on five years supervised probation after his release and must immediately pay about $27 million in restitution. 

Brafman said in an e-mail that a judge is required to impose a “reasonable sentence that is ‘not’ greater than necessary. My expectation is that this sentence will not pass appellate review and Mr. Rubashkin’s case will be sent back for re-sentencing before a different judge.”

Lewin said the severity of the sentence would be one of his grounds for appeal. He pointed out that such a sentence for a man who turned 50 in October “is tantamount to life.”

Chaim Dovid Zwiebel, executive vice president of the Agudath Israel of America, issued a statement calling it “a dark day for American justice. ... It is a dark day as well for American Jewry. While none of us condones any wrongdoing by Mr. Rubashkin, the extraordinary severity of the sentence imposed upon one of our Jewish brothers sends chills of shock and apprehension down our collective spin. This is a horrifying development.”

But Marc Stern, an attorney and co-executive director of the American Jewish Congress, said he does not believe the way Reade applied the sentencing guidelines is sufficient to set aside the sentence.

“There is nothing wrong with making them the presumptive sentence,” Stern said. “Before the Supreme Court changed the rule, it was thought they were mandatory. Now the courts are free to depart from them as long as they give a reason. In that regard, there is nothing to criticize the district court [Reade] for. The fact that she applied the guidelines is not in and of itself grounds for reversal. If she thought she was bound by them, that would be reversible error. But she recites the correct standard about them being advisory.”

On the other hand, Stern said, he found the sentence “very much on the harsh side and troubling. And I am equally or more troubled by the efforts to turn Rubashkin into some sort of saint who is an innocent being persecuted.”

Lewin pointed out that in an unprecedented action, six former U.S. attorneys general wrote to Reade opposing life in prison for Rubashkin, a position the prosecutor had been reportedly prepared to request. But he was also quick to say that Rubashkin himself admitted after trial that Agriprocessors, the Postville, Iowa, company owned by his father and which he managed, had submitted inflated invoices to the bank in order to borrow more money from the company’s $35 million line of credit without the requisite collateral.

“He said he made mistakes,” Lewin said of his client. “Whether he himself inflated the invoices is not clear. Someone else submitted them and to what extent he was responsible for that is debatable. There was testimony that it was done at Rubashkin’s direction.”

He stressed that the bank was being repaid the loan — more than $21 million in interest over the eight or nine years that Rubashkin began tapping into the line of credit.

“The bank didn’t think his operation would go bankrupt until the federal immigration raid [in May 2008],” Lewin said. “If there had been no raid, the loan would have been paid. ... The government caused the loan to go sour.”

He pointed out that Agriprocessors had hired the same law firm that another slaughterhouse hired to prevent the immigration raid. The firm was able to derail the raid on the other business with a promise to help weed out illegal immigrants workers. Lewin said a similar request on behalf of Agriprocessors was not honored and that the “raid closed his business.”

U.S. Attorney Stephanie Rose issued a statement after the sentence saying that “claims Rubashkin’s religious beliefs led to his prosecution have no foundation. His faith had nothing to do with his crimes, prosecution, or punishment.”

She said the evidence at trial showed that Rubashkin “committed money laundering by running tens of millions of dollars through bank accounts at a Postville grocery store and a religious school,” and that he was personally involved in “harboring hundreds of undocumented worker” and bought them fabricated identification.

“Over a two-year time period when money was being fraudulently obtained from a lender, Rubashkin funneled about $1.5 million from Agriprocessors’ accounts to his personal bank accounts,” she said. “The money was used, in part, to pay approximately $300,000 on his credit card bills, approximately $200,000 for a portion of the remodeling of his residence, approximately $76,000 for his personal state and federal income tax, approximately $41,000 for his mortgage payments on his personal residence, approximately $25,000 for jewelry, approximately $20,000 for sterling silver, $1,245 per month for life insurance, and $365 per month for his car payment.

“Sholom Rubashkin expended enormous efforts to hide his many crimes from the public and law enforcement. On top of that, there have been orchestrated efforts to spread false information intended to elicit sympathy for him. It is a tragedy that many people were misled by this misinformation calculated to distract the public from the truth. The truth came out at trial and sentencing. ... The damage caused by Mr. Rubashkin cannot be fully tallied. However, today the house of cards he constructed finally was brought down. When something is built on lies, it should be no surprise when it collapses under the weight of those lies.”

Before the trial began, Lewin said prosecutors offered to recommend a 15-year sentence if Rubashkin pleaded guilty, an offer that was rejected out of hand.

“He would have been crazy to take it at the age of 50,” Lewin said. “That was an extortionate demand. He has [now] admitted to the things he did and he deserves a sentence of two or three years.”

Zwiebel said he was surprised that the judge discounted as a mitigating factor the fact that Rubashkin has an autistic 16-year-old son. 

“She said it was a non-factor because he has a loving wife and is part of a loving and wonderful community,” Zwiebel said, referring to the fact that Rubashkin is Chabad.

 

 

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07/01/2011 - 03:10

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If it were a black man who did all of these same crimes, he would have been charged with all of them, instead of only a select few of the crimes committed. And not one Jew in this country would have come to his defense. But because this person is Jewish, it is called a small holocaust and an example of how dangerous the world is for Jews. What a crock of ####. If this man were a Hispanic or Native American the sentence might have been higher and not one of these posters would spend a single second concerning themselves with the non-chosen goy.
Eric Holder Must Investigate Sentencing Disparities http://is.gd/dAZXM A few months ago, Attorney General Eric Holder took an important step in ensuring that all men are treated equally under our legal system. In a memorandum to federal prosecutors, he noted that those who commit similar crimes in different jurisdictions “should, to the extent possible, be treated similarly.” He also cautioned against unwarranted disparities in charging decisions, plea agreements and sentencing recommendations. But while putting these words on paper to guide federal prosecutors is important, the Department of Justice ultimately is to be judged on whether it follows in deeds. Unfortunately, right now the Obama administration is missing a golden opportunity in Iowa to show it supports parity for all... see full article: http://is.gd/dAZXM
A disturbing trend in Iowa? “It might seem superfluous to state that Jewish criminals belong in jail, however much good they might otherwise do and however religious they might otherwise be. That said, recent events in Iowa raise the possible spectre of a state that does not realize that accused or even convicted criminals who are Jewish do not deserve to be treated unfairly under the law, however much bad they might otherwise do...” See full story: http://ijn.com/editorial/1802-a-disturbing-trend-in-iowa
Would you all be posting in a similar vein if it were an Arab malfeasor?
The irony is that the feds are calling this a huge “fraud,” but the only people really being defrauded are the victims of this federal assault. Let us look at the real damage that the feds have inflicted upon people: A thriving business has been shut down, and hundreds of people now are out of work, and a town is reeling economically and financially; A woman will be deprived of her husband for many years, and a number of children will not have a father; First Bank was heavily damaged by this action in a way that never would have been the case had the feds not decided to “rescue” the bank from its “fraudulent client;” Kosher meat is more expensive and much less available than it was before the government destroyed Glatt. No doubt, federal authorities consider this whole affair to be a great victory, and they are telling the rest of us how they are protecting us from fraudsters and exploiters. In truth, the real fraudsters and exploiters here are the federal agencies that took part in this action, and the various groups that were cheerleaders for it. Literally, thousands of people were harmed by what the government did. However, no one from the federal government lost a dime. http://williamlanderson.blogspot.com/2010/06/free-sholom-rubashkin.html
A Jew in prison bears a unique challenge, there is no community to shield him or place to hide. His worse enemies many times are Jew hating jailers who let sadistic inmates know that he is unprotected. The cornered Jew cannot help himself, and if he can afford it must quickly find a few bodyguards. The best choice would be an assortment of Rabbis, corrupt jailers , and gang leaders. If he is broke he better find something to offer or else he will be psychologically tortured and driven insane.
The fact that R' Shlomo committed illegal acts should not be in question here. What is in question was the severity of the sentence? Was the judge within legal guidelines to issue the length of sentence she handed down? Yes. Was there a legal precedent to issue such a stiff sentence? I don't know. Regardless of the purpose for which those illegal acts were committed, a fair sentence is called for. If there was any taint by other acts which were not prosecuted, then the sentencing should be reviewed and reduced appropriately. Nevertheless, I feel 27 years is a life sentence and serves no one. He will never be able to repay the financial hurt he caused by his illegal acts. This in itself should not be reason to significantly reduce the sentence. Wouldn't a sentence of 5-6 years in jail plus restitution in the form of service to the community and others he harmed, be more appropriate?
Submitted by WRosencratz (not verified) on Sun, 06/27/2010 - 20:12. [...]"A 27-year sentence is a miniature Holocaust." Over-react much?
I wonder how much of Mr. Rubashkin's sentence is due to his "crimes" and how much is due to him being Jewish? A 27-year sentence is a miniature Holocaust. I demand a full federal probe to make sure Mr. Rubashkin's Civil Rights were not violated.
Just "living" in Iowa is a life sentence in itself -- in prison or out.
We American Jews have much to fear. We should ask ourselves why us. Oi Vay Gewalt!
Jewish Federations and National Agencies are treating the Rubashkin affair with the same attitude they exhibited during the Crown Heights riots years ago. These supposed representatives of the Jewish people had a hand-off policy until after the burning and murder because they said Chabad had it coming to them. In 2010, substitute Orthodox for Chabad.
Please - stop this spinning, minimizing, diversion, chunking up playing the context game- on the Rubaskin story. These approaches in themselves are shondas and disengenuous. To those who are given much more is expected. Al Capone wasn't incarcerated for murder - but for tax evasion. If anything Rubaskin should have had harsher sentences for 1) the fraud on the Kosher eating community of potentially billions given questions about were the animals slaughtered in a Kosher way - yet, Jews paid a premium for Kosher meat, 2) alleged collusion with the Kosher certifiers - where were they relative to #1 3) the citations for using illegals It is amusing that during the process - instead of questions relative to these outrageous activities (first shown in the book Postville as well) there was 1) burying of the story in certain Jewish newspapers (especially edited by Rabbis) 2) focusing the story on the disruption of Kosher meat 3) playing the victim cards as Jews (I am a Jew) 4) playing the old saw of 'don't rush to judgment' (which is a laugh as we do this is Jewish newspaper quite frequently) Illegal is illegal - and 'for those who are given much, more is expected' - where is the class action for recompense for the overcharge for Kosher meat bought under false pretenses outcry and story??? Again, to those who are given much, more is expected...
Oy Vey Marc Stern is "more concerned" by those who see Rubashkin a flawed individual who made mistakes then and unreal sentence of 27 years. Funny how Liberals love everyone to the left of them and find little compassion for fellow Jews. Is not losing a hundred million dollar business a punishment. Being arrested in shackles a white collar crime-something unprecedented, being held in jail since he was a Jew who would flee to Israel. Charging him for not paying for cattle within 24 hours. There is no question the prosecution treated Rubashkin different then anyone ever with similar offenses. And to top it off he was proven innocent on the child labor accusations. The AJCongress should be protesting the outrageous sentence instead of worrying about Jews who think the justice department is gone to far. Shame on Marc Stern--Then again AJCongress is fading into oblivion, maybe one of the reasons its an organization who has lost its way and values. It should not have invested with Madoff (who by the way was free until sentencing , something denied to Rubashkin).
Dina Wein must do everything to move her trial to New York otherwise she will received a similar sentence in the Indiana court.
This vindictive, disproportionate sentence is causing great fear in our community. We realize that when similar charges are leveled against other businesses, they are fined or receive abbreviated sentences. How can millions be paid when the company was bankrupted in this obscene case? The family is living on charity and the largese of the community. What is left when the government forced the closure of the company? Everyone loses when such evil takes hold. What happened to justice and "innocent until proven guilty?" The press, media, unions, PETA and government created an image of guilt before the trial or testimony. We American Jews have much to fear.
Just because he is a Jew or father of a handicapped child, does not excuse the fact the he defrauded many people as well a the US taxpayers, I am a Jew I obey the laws of the land pay income taxes on my business and teach my children the same!
It is very easy for you folks to back Shalom and his criminal actions. As a citizen of Allamakee county I invite you to visit Iowa and talk with some of his victims. We all feel 27 years is a very short time considering the number of lives and families he has ruined because of his crimes. With a possible sentence of over 1200 years 27 seems like nothing. We need to get tough with ALL criminals regardless of religion.
could you name some of his victim's please? and explan how they become his victims?
A very good friend of has apparently received - and accepted - another such invitation. A journalist has written a series in the Zman Monthly. He has spent days in Postville interviewing the locals (including the Mayor), and the recordings he's in possession of tell a different story. In fact, those "victims" have arranged a number of protests demonstrating the devastation brought upon their town by the Rubashkin prosecution.
I agree 100% , Mr Rubashkin got a harsh sentencing and i am sure it is because he is Jewish-Orthodox. But I must say, know his lawyer Nat Lewin. He is a very weak. They should hire Ben Brafman. I know when he opens his mouth judges are afraid. He would have him with 2-3 years sentencing. I am sorry to read again that Nat Lewin will prepare the appeal. They should hire Ben Brafman!

Ben Brafmans good days are over, save your money and time behind bars and hire someone else.

I agree someone like Andy Greenspan and the similar would clear the case in no time, he is week and i'm sorry and sad for the fmily and all associated to heaar that he's preparing the appeal to renegotiate.
A very complicated case with a tragic outcome that could have been much less so. At every turn, Rubashkin failed to deal with the reality at hand. He was non-cooperative and the stakes kept going up. Add a touch of anti-semitism, a support structure around him that beleived their own spin, and a lot of bad decisions that added up to a sentence more befitting the Times Square bomber, than a mean spirited, agressive, and not very law abiding busnessman.
How has Rubashkin been "non-cooperative"? I myself (a fellow Orthodox Jew) strongly disagree with the element of antisemitism. This has been agenda-driven by the super-powerful unions, who have their grip on the entire state; add perhaps rather a touch of some PETA activists, and another touch of Rubashkin's estranged brothers, who have performed the perfect character assassination ("mean spirited, aggressive") on an otherwise compassionate, philanthropic person (not necessarily to his fellow Jews, but also to none Jews). I do happen to be following the case closely. The misinformation among well-intended people created by this sophisticated smear campaign hurts more than anything else.
B"H Let me get this straight just for the record... U.S. Attorney Stephanie Rose issued a statement after the sentence saying that “claims Rubashkin’s religious beliefs led to his prosecution have no foundation. His faith had nothing to do with his crimes, prosecution, or punishment and the Judge decided: The judge discounted as a mitigating factor the fact that Rubashkin has an autistic 16-year-old son. “She said it was a non-factor because he has a loving wife and is part of a loving and wonderful community,” Zwiebel said, referring to the fact that Rubashkin is Chabad. So the prosecution says his "faith" is a non issue with his punishment.... The judge says his religious community and family is very solid which is why she is not taking into account his autistic kid. OK then... so who is not being honest? The Judge Reade or Prosecutor Rose.
This is indeed a stain on our judicial system. To lock him up for 27 years is essentially a life sentence. I think Mr. Lewin has a good shot at the appeal if the jewish population stands united behind the goal to free sholom. However, if we are divided and not fully support him, we show that our differences are more important than saving a Jewish family from the cruel overreaction of he judges, monopoly of the unions, and inhumane judicial treatment of humans.
And wait 'till the real investigation of the 9/11 begins. There will be no place to run. Criminals.

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