Is Life for Rubashkin Overkill?
Posted by Glezele Vayne on June 25, 2010
by Edwin Black
Investigative journalist and author Edwin Black says Sholom Rubashkin’s sentence is completely disproportionate, and backs it up with the facts of the case.
Originally, some people said they wouldn’t mind if kosher butcher Sholom Rubashkin got life in prison and rot behind bars until he dies. Yesterday, June 22, 2010, their wish was fulfilled by U.S. District Chief Judge Linda Reade in a northern Iowa courtroom. Under the stiff sentence, Rubashkin rots in jail essentially until he dies, a 27 year sentence supplemented by five years of probation to the 51-year man—and then he pays $27 million in restitution. Judge Reade’s sentence exceeded even the government’s request of 25 years. Now many people are outraged at the harsh treatment being meted out to Rubashkin and ask in disbelief, “What’s going on?”
Within hours of the sentencing memorandum, issued a day in advance by Judge Reade, legal scholars expressed shock thousands of Chassidim gathered in vituperative video-streamed protests in New York and Los Angeles, and a cadre of agitated appellate attorneys vowed to overrule the judge’s decision.
Who is Sholom Rubashkin and what really happened?
Rubashkin is the man at the center of the torrid scandal swirling around the massively-investigated Agriprocessors kosher slaughterhouse in Postville, Iowa. Last November, a federal jury found Rubashkin guilty of 86 federal charges including bank, mail and wire fraud, and money laundering, as well as failing to pay livestock providers in the 24-hour time period required by law. He was originally facing a tough Department of Justice sentencing prison recommendation that the Probation Department calculated, under the Federal Sentencing Guidelines, as life in prison. In the wake of open letters of criticism from legal scholars from Lewinsky prosecutor Ken Starr to Alan Dershowitz, the government recommendation was later amended to just 25 years—still considered by most to be realistically a life sentence.
Those who have always wanted Rubashkin locked away for the rest of his days list his crimes as numerous and odious. Charges by bloggers, Jewish media reporters, and prosecutors include a heinous track record of mistreating illegal alien workers; tolerating drug dealing and gun smuggling in the plant; money laundering; obstruction of justice; perjury; and the painful ritual slaughter of cattle, all in the process of creating arguably the most successful kosher meat business in America.
Those who call for leniency for Rubashkin have plausible answers, explanations, and denials for every accusation. Upon review, many of those accusations are unproven, unprosecuted, and some are merely rumors. His defenders claim he is a charitable man who did not personally benefit financially from his business mistakes. He went awry of the law, they say, for the sake of providing abundantly and readily available kosher beef to the Orthodox. In this, he was successful, serving not just the larger Jewish communities such as those in Brooklyn and Miami, but those located throughout the distant corners of the nation. More importantly, his defenders say, Rubashkin went awry of PETA, the meatpacking unions, overzealous federal prosecutors in Iowa, and certain social dynamics within the Jewish community. His advocates assert that he has been overcharged, over-prosecuted and is now being over-sentenced for some very ordinary transgressions that would land a similar defendant in jail for only a few years. Now, he is facing life imprisonment for financial crimes that have nothing to do with the illegal immigrant worker scandal that made headlines. In many ways, those financial crimes were caused by the government itself, apparently as the sole means by which federal sentencing guidelines could be dynamically goosed up.
It would be impossible to reinvestigate the details of this complex, years-long case. But this much is clear: Rubashkin and Agriprocessors have found themselves on the receiving end of extraordinary enforcement measures and prosecution that for many are hard to fathom.
Some of the details yield a stunning indictment of prosecutorial zeal. His attorney, Nathan Lewin, of the Washington D.C. firm of Lewin & Lewin, argues, “In the almost 50 years that I have been practicing federal criminal law—first as a prosecutor and then as a defense attorney—I have never heard of, or witnessed, as vindictive, excessive, and mean-spirited a criminal prosecution as the one conducted in the Northern District of Iowa against Mr. Rubashkin.”
Lewin goes on to accuse Iowa prosecutors of “false representation to the court,” in opposing pre-sentencing bail for the Rubashkin last Passover. Specifically, avers Lewin, prosecutors told the judge that after the May 2008 Agriprocessors raid, Rubashkin arranged to send a key employee, Ben Chaim, and his family, to Israel and take over their property in Iowa, this to obstruct justice and make a witness “disappear.” Evidence in the record shows that arrangements for Ben Chaim to return to Israel were finalized months before the May 2008 raid, and were, therefore, unconnected to the raid or any potential obstruction. Based on this falsity, Lewin argues, bail was denied to Rubashkin. Lewin called for a Department of Justice Criminal Division investigation of the Iowa prosecutors for misconduct, but ranking members of the Justice Department did not agree.
In an exclusive interview with this reporter, Rubashkin’s wife, Leah, says, “My husband definitely made mistakes. He is now paying for those dearly. If the clock were turned back, I’m sure he would not do those mistakes. But his good intentions were never for personal gain, only done with the feeling they would help the business [Agriprocessors] survive” and in so doing help fulfill a religious mandate to provide kosher beef to the Orthodox community.
Ironically, Rubashkin was not tried for hiring or mistreating illegal aliens. Instead, he was charged with financial crimes, including violating the obscure 1921 Packers and Stockyards Act, section 409 of which requires payment to cattle suppliers within 24 hours. In many cases, Rubashkin paid his vendors several days late—a common occurrence in today’s economy. Yet in a detailed sentencing memorandum, the prosecution points to 31 cattle suppliers who were not paid within 24 hours—but all were indeed paid. Specifically, on page 25 of the sentencing memo, prosecutors assert, “The actual loss to each Packer’s Act victim is attributable to the fact that they all lost the time value of their money while they were waiting for payment.” As an example, the government sentencing memo declares, “Waverly Sales, Inc. has quantified the amount of their actual loss to be $3,800.51. This is based upon the amount of interest Waverly paid on a mortgage loan it took out on its property in order to cover the cost of the cattle sold to Agriprocessors while it was waiting for payment through the Packer’s trust.” As such, Rubashkin is to get a life sentence in part because his supplier lost interest waiting for full payment, which was actually made, but made days late. Indeed, this is the first criminal prosecution under the 90-year-old Packers and Stockyards Act any legal expert contacted could remember.
In a written explanation, assistant U.S. Attorney Peter Deegan, Jr. defended, “The fact that they [cattle suppliers] were ultimately paid is completely beside the point when the essence of the criminal offense is the failure to timely pay providers of livestock.” The emphasis on the word “timely” is Deegan’s.
Prosecutors also discovered that Rubashkin inflated his original receivables to secure a bank loan; even though no losses were incurred, the exaggeration constituted federal bank fraud. Moreover, when Rubashkin routinely checked off a boilerplate box on the original application, he swore his firm was not involved in illegal activities. That statement was deemed false by virtue of the illegal aliens who were discovered working at the plant. The government has claimed that the bank lost $26 million when Agriprocessors defaulted on its loan. Such a high loss forces the federal sentencing guidelines up. The more money lost in a fraud, the more years the guidelines suggest. But further inquiry shows that the bank in question actually made $21 million in interest from Rubashkin’s loan since he paid down his $35 million line of credit—on time, every time, for years.
Agriprocessors, says Lewin, only went bankrupt after the government’s massive raid, compounded by threats to prosecute prospective purchasers if they employed family members who offered to continue running the business, and an original indictment on 3 counts that was amended by six major superseding indictments. New indictments were filed every few weeks for about seven months until the seventh indictment recorded a staggering 163 counts. When the thriving business with a built-in captive kosher market was forced into bankruptcy, all sorts of viable multi-million-dollar purchase offers were rejected by the bank until the business failed completely. At that point, the bank indeed lost $26 million in what Lewin and other defenders see as an artificial, self-created loss that served to intensely escalate the sentencing guidelines.
Undocumented aliens are an untidy fact in American manufacturing, but prosecutions for similar illegal worker raids have garnered sentences of only a few years for their executives. For example, in 2007, the Michael Bianco Company, a New Bedford, Massachusetts leather goods manufacturer, was raided. Some 326 illegal workers were discovered. Owner Francesco Insolia, found guilty of deplorable working conditions, received, in January 2009, a sentence of a year and one day plus stiff fines.
Attorney Lewin promised that Rubashkin would ultimately get a fair hearing, but not until his case was appealed to the Eighth Circuit Court. At press time, that appeal is being typed
Edwin Black is the author of IBM and the Holocaust and previously investigated the life sentence given to Jonathan Pollard.
From Glezele Vayne