We are very careful whom we support and which causes we champion.
World Jewish leaders have carefully researched the prosecution of Sholom
Rubashkin and are deeply disturbed. In sending you this email, I am joining
thousands of other Rabbis and organizations who are urging their communities
to voice their concerns.
The federal government has been over zealous in pursuing Mr. Sholom
Mordechai Rubashkin and has submitted him to considerably more severe
restrictions and potential punishment than others in similar cases. Mr.
Rubashkin, a father of ten including an autistic child, will be sentenced on
April 28 and faces the possibility of life in prison and the probability of
a 27 year sentence, far beyond the sentences imposed on others whose crimes
were significantly more severe than anything Mr. Rubashkin may have done.
In issuing this call, we are in no way condoning any criminal conduct.
Rather, we are asking that Mr. Rubashkin be treated like any other American.
We urge you to communicate your respectful concern over the handling of the
Rubashkin case, and the excessive sentence being considered. (For more
details about this, please see the memo available on
http://www.justiceforsholom.org ).
Jurors concurred that Rubashkin did not gain personally from the legal
mistakes he made and had no intention causing any monetary loss to anyone.
(Rubashkin lawyers pointed out that Mark Turckan, who pled guilty to a 21
year cover up of misapplying funds from the same bank, and was found to have
caused a similar loss to what DOJ argues was caused by Sholom Rubashkin, was
sentenced to a year and a day in prison.)
Please sign an online petition available at
http://www.justiceforsholom.org and
please call or email the Justice Department’s Intergovernmental and Public
Liaison Office 202-514-3465 / oipl@usdoj.gov (please cc
pr@justiceforsholom.org) with your concerns.
These emails are important and will be forwarded to the US Attorney handling
the case.
Please note that this case is not about the immigration charges, this is a
white collar crime that Mr. Rubashkin allegedly committed in an attempt to
save his company.
Thank you so much,
Rabbi Ephraim Simon
Please consider forwarding this to your family and friends as well.
MEMORANDUM REGARDING GROSS DISPARITY
IN PROSECUTORIAL TREATMENT OF SHOLOM RUBASHKIN
Introduction
This Memorandum describes the gross disparity between usual procedures in
federal criminal prosecutions under the immigration and bank-fraud laws and
how Iowa federal prosecutors treated the case of Sholom Rubashkin, the
Orthodox Jewish Hasidic businessman who was arrested on immigration-law
violations relating to the Agriprocessors plant in Iowa and was found guilty
after a jury trial of bank fraud and failure to pay cattle owners promptly.
The enormous disparity between the treatment of Mr. Rubashkin and others who
committed similar offenses began with the Immigration and Customs
Enforcement ("ICE") raid on Agriprocessors ("Agri") on May 12, 2008, and has
continued to this day.
1. Should ICE Have Conducted the Massive May 2008 Raid?
Because it was apparent from government activity in the neighborhood of
Agriprocessors’ Postville plant that ICE might be planning a raid, Agri took
the advice of the American Meat Institute and retained the services of
Robert W. Kent, Esq., an attorney with the international law firm of Baker &
McKenzie. Mr. Kent had represented Swift & Co. - a meat-packer that had been
raided by ICE in six states in December 2006, when approximately 1297
illegal employees were found. When ICE sought to raid Swift again in Texas,
Kent persuaded them to proceed without a raid and instead to examine Swift’s
employment records and weed out the illegals. Kent called the Iowa
prosecutors on May 9 and followed up with a faxed letter on May 9 requesting
a meeting and stating that Agri - which was "the largest kosher meat
production company in the country" - wished to cooperate with ICE and avoid
the dangers and disruption of a raid.
Kent’s requests were summarily denied and the raid took place. Approximately
600 federal agents in heavy riot gear stormed the Agri plant on May 12,
supported by Blackhawk military helicopters. A total of 389 illegal aliens
were arrested and entered guilty pleas in production-line fashion after
being told that they could be charged with a major federal criminal felony
that the Supreme Court held in 2009 (Flores-Figueroa v. United States, 129
S. Ct. 1886) was inapplicable to their situations.
The Department of Homeland Security reversed ICE’s raid policy and, since an
announcement made on April 30, 2009, will conduct raids only in extremely
limited circumstances.
The May 2008 raid received national publicity and ultimately resulted in the
bankruptcy of Agri. It demolished Postville’s economic infrastructure,
destroyed a legitimate business that was the town’s major employer, wiped
out livelihoods of both legal and illegal aliens, forced businesses to shut
down, and drove away residents. Postville’s population has shrunk by half,
and many of those who remain are unable to sell their homes. The town is
nearly insolvent. And the raid demolished the principal source of kosher
beef and poultry in the United States, creating kosher meat shortages across
the country.
2. Was the Post-Raid Treatment of Rubashkin Comparable to Other ICE Raid
Targets?
(a) Swift & Co. - Although Swift was a major employer of illegals in six
states and 1297 illegals were found on those premises in the December 2006
raids, neither the company nor any of its officials was criminally charged.
In Iowa, for example, one United Food and Commercial Workers ("UFCW")
official at Swift’s Marshalltown, Iowa, plant was charged with harboring
illegal aliens in an Iowa federal court and was sentenced to one year and a
day in prison and a $2000 fine after being found guilty by a jury. Another
Swift employee who had pleaded guilty was sentenced to probation.
(b) Michael Bianco, Inc. ("MBI") - A manufacturer of leather goods and
handbags in New Bedford, Mass., was raided by ICE on March 6, 2007, after an
undercover operation from which it was learned that Francesco Insolia, the
owner, intentionally sought out illegal aliens and exploited them with
punitive fines and terrible working conditions. Approximately 326 illegal
aliens were detained in the raid. Insolia was sentenced in January 2009 to
one year and a day in prison and fined $30,000. The company was fined $1.51
million and ordered to pay $460,000 in restitution.
(c) Action Rags USA - A Huston, Texas, clothing and rag exporting company
was raided by ICE on June 25, 2008 - little more than a month after the Agri
raid. Approximately 85% of the business’ workforce consisted of illegal
Mexican aliens, and approximately 150 aliens were arrested. The owner,
Mubarik Kahlon, and two managers were indicted on immigration charges in
July 2008. A jury trial was set for June 15, 2009, but on June 10, Kahlon
and one manager pleaded guilty. Kahlon was sentenced to two years’ probation
and a $6000 fine.
(d) Miyako Sushi and Panda China Buffets - ICE raided these restaurants in
Ocean City, Maryland, in June 2007, on evidence that illegal aliens were
hired as below-minimum-wage employees (paid in cash) in the restaurants and
were provided living accommodations in condominiums owned by the restaurant
owners, Bo Hao Zhu and Siu Ping Cheng. The owners pleaded guilty to
immigration-law violations and were sentenced on September 12, 2008, to 18
months’ probation. Their partnership was ordered to pay a $50,000 fine.
(e) Rosenbaum-Cunningham International, Inc. ("RCI")
- On February 22, 2007 ICE raided 63 locations in 17 states of a national
janitorial service that provided cleaning crews for restaurants. Almost all
RCI janitorial employees were illegal aliens who had no documentation
whatever, and they were paid in cash. The owners, Richard M. Rosenbaum,
Edward Scott Cunningham, and Christina A. Flocken were charged not only with
immigration-law violations, but also with defrauding the United States of
more than $18 million in federal employment taxes. On March 4, 2008,
Rosenbaum was sentenced to 10 years’ imprisonment, Cunningham to 51 months,
and Flocken to 30 months.
The cases described above are typical. No case following an ICE raid has
even come remotely close to the draconian threats and punishments imposed on
Mr. Rubashkin.
3. Were Post-Raid Publicized Arrests and Imprisonment of Rubashkin
Warranted?
Following the nationally publicized Agri raid, the Iowa federal prosecutors
conducted an investigation of Agri. The sworn complaint on which the raid
was based had acknowledged that Agri had screened job applicants and had, in
fact, twice rejected an ICE undercover agent who tried to gain employment
with false identity papers. Only when ICE provided him with authentic
documentation was he hired. Rubashkin denied that he had knowingly violated
the immigration laws and Agri retained Robert Kent to discuss the charges
with the prosecutors.
The prosecutors made arrests and filed immigration-law charges against
various of the company’s employees. Most of these steps were accompanied by
substantial local and national publicity. Agri’s and Rubashkin’s counsel was
in regular communication with the prosecutors to attempt a resolution of
potential criminal charges against Agri and Rubashkin.
Although he was served with a letter identifying him as a "target" of the
investigation, Rubashkin himself remained in his Postville, Iowa, home
during the almost six months following the raid. He made one trip to Canada
to visit a sick friend and returned promptly to Postville. There is not a
scintilla of evidence that he made any effort to flee.
It was clear that Rubashkin would surrender voluntarily if notified of any
charges, but the local prosecutors had him arrested without any advance
warning, to the accompaniment of great publicity, on October 30, 2008. Page
A14 of The New York Times of October 31, 2008, for example, had a story
headlined "Arrest Made in Iowa Plant Case" and a photograph - coverage that
would not have appeared had counsel been requested, as is usual in such
cases, to bring in his client to answer charges.
An indictment charging one violation of the immigration laws was returned.
At Rubashkin’s bail hearing on the indictment, the prosecutors and the
Magistrate Judge permitted him to be released on a one-million-dollar bond
and with an ankle bracelet and electronic monitoring. Individual employers
charged in all other immigration-law prosecutions have been released either
on personal recognizance or on the submission of a nominal bond. No other
employer accused of violating the immigration laws has ever been restricted
with an electronic bracelet or required to post a bond of one million
dollars.
On the day following his release, the Iowa prosecutors had Rubashkin
arrested again on an allegation that he had committed bank fraud after his
first arrest. Their claim was that, in the routine certifications that Agri
made to the St. Louis bank with which it had a $35 million line of credit,
it had falsely represented that it was in compliance with the law when, in
fact, it was harboring illegal aliens, and that Agri had failed to deposit
all checks it received from customers in the "sweep account" that was
security for the bank loan and had temporarily used (but had subsequently
reimbursed) money for a store and school in Postville that Agri was
administerng.
Although there was no proof that the bank was actually misled by this
conduct or that its loan, on which timely interest payments continued to be
made even after the raid, was imperiled in any way, the Iowa prosecutors
asserted that this conduct by Rubashkin constituted "non-compliance" with
the terms of Rubashkin’s release on bail and asked that he be denied bail
and imprisoned.
Among other arguments for denying bail to Rubashkin, the prosecutors
asserted that Rubashkin could flee to Israel because he is Jewish, although
there was no evidence whatever that he had sought to travel to Israel (and
this same specious contention would justify the imprisonment of any Jewish
person ever arrested on any charge). In his opinion denying bail, the
Magistrate Judge accepted the Iowa prosecutors’ claim regarding flight to
Israel.
Rubashkin spent the next 76 days in prison. No other individual accused of
an immigration-law violation and no other non-violent and non-threatening
person charged with nothing more than having compromised the security of a
bank loan that was otherwise being kept current has ever been denied bail,
prior to trial, on such a charge unless he was apprehended while actually
attempting to flee.
4. Why Were Seven Superseding Indictments Filed With Inflated Allegations
and a Forfeiture Demand?
After a hearing held in January 2009, the District Judge found insufficient
evidence to keep Rubashkin in prison as a "flight risk" and ordered his
release pending trial. In the meantime, the Iowa prosecutors had begun
ballooning the immigration and bank-fraud charges with a series of
superseding indictments.
The following is a list of the dates and number of counts of the superseding
indictments:
Fourth Superseding Indictment - January 15, 2009 - 97 Counts
The basic charges of immigration-law violations and bank fraud remained the
same throughout this entire series of indictments. In the ____ Superseding
Indictment the Prosecutors added the request that the entire Agri business
be forfeited to the United States. That demand - for the forfeiture of an
entire business because some of its employees were illegal aliens - was not
made in any other case involving violation of the immigration laws.
The Fourth Superseding Indictment added the allegation under 7 U.S.C. § 195
that Rubashkin had failed to make prompt payments to cattle owners in
violation of an Agriculture Department regulation because his payments were,
on occasion, several days late. This was the first time in the history of
federal law enforcement that such a criminal charge has ever been made.
The number of charges was increased by the Iowa prosecutors not because any
new offenses were discovered. Rather, the basic bank fraud allegation was
multiplied because each of the bank’s advances of funds to Agri under the
$35 million line of credit and each month’s report to the bank by Agri was
charged as a separate offense. Money laundering was also alleged to have
been committed when Rubashkin deposited some funds received from customers
to the accounts of a local kosher grocery store and religious school that
Agri was maintaining in Postville.
The effect of this deliberate fragmentation of charges was that Rubashkin
was ultimately tried before a jury not on one basic charge of submitting
false reports to the bank regarding the security for the bank’s loan but on
91 counts of bank fraud, money laundering, and failure to pay cattle
dealers. The jury found him guilty on 86 counts.
5. Why Did Prosecutors Prove Immigration-Law Violations at the Bank-Fraud
Trial?
Recognizing that the jury would be prejudiced against Rubashkin in
considering the bank-fraud allegations if it heard evidence regarding
immigration-law violations, the District Judge severed trial of the 72
immigrations violations in the Seventh Superseding Indictment from the 91
bank-fraud charges. Nonetheless, contending that he committed bank fraud
when he represented to the bank that Agri was complying with the law, the
Iowa prosecutors presented more than two days of highly inflammatory
testimony regarding the immigration allegations during the bank-fraud trial.
The District Judge denied repeated defense requests for a mistrial.
6. Why Was Rubashkin Denied Release on Bail Pending Sentencing?
During the almost ten months between his pretrial release (after 76 days in
prison), Rubashkin complied punctiliously with all the bail conditions. His
Probation Officer even testified that on one occasion, when his electronic
ankle bracelet became dislodged, "he alerted her immediately to allow fir
its expedient repair." The District Judge found "that Defendant took great
pains to comply with the terms of his pretrial release."
Nonetheless, when the jury returned a guilty verdict, Rubashkin was
immediately remanded to prison. In a hearing on the Iowa prosecutors’
request that he be denied release pending sentencing, the defense offered to
post as security approximately $8 million in the equity of 43 supporters of
Mr. Rubashkin and to pay for a 24-hour armed guard that would prevent him
from leaving his home without prior authorization. The District Judge
granted the Iowa prosecutors’ request, and Rubashkin has now been in the
Linn County Jail for more than 130 days, in addition to the 76 days he spent
in prison between November 2008 and January 2009.
The law regarding release pending sentencing (the Bail Reform Act of 1984,
18 U.S.C. § 3143(a)) does not authorize the pre-sentencing imprisonment of a
defendant who is not a danger to the community if he is not a "flight risk"
and his future presence can be assured by any conditions of release. The
District Judge stated no reason for imprisoning him other than her
unsupported conclusory statement that he is a "flight risk." The Court of
Appeals denied bail also without stating any reason. These unexplained
denials of bail violate the provision of the Bail Reform Act that requires
"a written statement of reasons for the detention." 18 U.S.C. § 1342(i)(1).
7. Why Has Release for Passover Seders Been Opposed?
Although Rubashkin’s counsel believe that any detention of Rubashkin
pre-sentencing is unlawful and are applying to the Supreme Court to reverse
the rulings of the District Court and the Court of Appeals, they filed on
March 18, 2010, a motion to permit him to observe the first two days of
Passover (March 30 and 31) at home. The motion was opposed by the Iowa
prosecutors and was denied by the District Court on the day after it was
filed.
Federal law (the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 and
the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc-1(a)) protect the religious rights of prisoners in federal custody
unless the Government has a "compelling interest" in denying the religious
right and is taking the "least restrictive alternative" in enforcing that
interest. Neither of these standards was satisfied by the Iowa prosecutors
or the District Court in denying permission to Rubashkin to observe the
Passover Seders in his home.
8. Why Is an Excessively Severe Prison Term Being Urged?
The jury found in a special interrogatory that Rubashkin did not profit
personally from false invoices presented to the lending bank. Evidence of
his very modest lifestyle and his extraordinary charity was proffered at his
trial but objected to by the Iowa prosecutors and excluded by the District
Judge. He is the father of 10 children, including an autistic teenage boy
who depends on him. Nonetheless, the Iowa prosecutors have indicated that
they view an appropriate prison sentence as being in the 22 to 27 year
range.
Although they dismissed the 72 immigration-law counts after the jury’s
verdict on the bank-fraud allegations, the Iowa prosecutors have submitted
to the Probation Office more than 30 pages of unproved inflammatory
allegations regarding the employment of illegal aliens at Agri. These
assertions - which Rubashkin has never had any opportunity to challenge and
disprove - are designed to prejudice the District Judge against Rubashkin
and increase his sentence.
Important Numbers
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