Washington — For years Sholom Rubashkin made his living as an executive in the country’s largest kosher meatpacking company. Now to keep him out of prison, his defense team is arguing that the judge in his financial fraud case made treif use of federal sentencing guidelines.
The judge, Linda Reade, who sits on the federal bench in Cedar Rapids, Iowa, used a federal point system in deciding this week to sentence Rubashkin to 27 years in prison.
Sophisticated crime? Check, that’s 2 points.
Fraud in the $20 million to $50 million range? Check, that’s 22 points.
Was he a boss of the criminal enterprise? Check, that’s 4 points.
Did he perjure himself? Another 2 points.
Reade determined that Rubashkin’s final score was 41 points, which according to the federal guidelines earns a sentence of 324 months to 405 months. The judge handed down the former – 27 years – plus another five years probation. Rubashkin also will be required to make restitution of nearly $27 million to several financial institutions.
Rubashkin was convicted of defrauding two banks that had extended lines of credit to the slaughterhouse in Postville, Iowa. The ex-Agriprocessors executive contended that he was desperate to keep the business afloat and would have repaid the advances if he had the opportunity. Reade assessed the fraud at close to $27 million.
Rubashkin’s lawyers said the 27-year term amounted to a life sentence for the 51-year-old father of 10, and that that they planned to appeal the sentence – on top of an appeal of the conviction.
“This is a stain on American justice, and it gets to be a bigger and bigger stain all the time,” defense attorney Nathan Lewin told JTA.
Defense lawyers dismissed claims that anti-Semitism underpinned the case.
“Nobody responsible has made that allegation,” Lewin said.
Instead, the lawyers said, the “overzealousness” of the prosecution had more to do with the profoundly negative publicity in the lead-up to the May 2008 federal raid on the Agriprocessors plant.
In particular, Lewin cited media stories he said were “defamatory” that described alleged abuses of the immigrants who worked at the Agriprocessors plant; claims by People for the Ethical Treatment of Animals that the cattle suffered immensely; and opposition from local unions because the shop was not organized.
Lewin said Rubashkin’s team planned to appeal for support through rallies such as the one he addressed Monday evening in the heavily Orthodox Borough Park section of Brooklyn.
“This is a man who did a lot more good for the Jewish community than not,” Lewin said. “He made kosher meat available for Jews in far-flung places.”
Lewin said he planned to appeal the sentence based on what he described as Reade’s adherence to mandatory sentencing guidelines, which the U.S. Supreme Court ruled unconstitutional in 2005.
However, Reade in her ruling appeared to say that she treated the guidelines as advisory, which the Supreme Court said was permissible.
“The court finds that a sentence within the computed advisory guidelines range is firmly rooted in credible evidence produced at trial and at sentencing,” she said.
Prior to the sentencing hearing last month, six former U.S. attorneys general and 17 other Justice Department veterans sent a letter to the judge criticizing prosecutors’ recommendation that Rubashkin receive life in prison.
The letter writers noted the “potential absurdity” in prosecutors using the federal sentencing guidelines to calculate a recommendation of life in prison for Rubashkin, saying the guidelines can produce sentencing ranges that are greater than necessary and “lack any common sentencing wisdom.”
In his interview with JTA, Lewin said he would show on appeal that Reade did not apply an “individualized process” in determining the sentence. She did not address motive, he said, nor did she take into account family issues or sentences for similar crimes.
Reade did not cite similar cases, and she dismissed motive outright in rejecting defense requests for “downwards adjustment” of the sentence. She did acknowledge, however, that the defense presented “substantial” evidence that Rubashkin was not motivated by greed but “out of a sense of duty to maintain his family business for religious purposes” – i.e., to maintain the supply of kosher meat.
“No matter defendant’s motive, he defrauded the victim banks out of millions of dollars,” Reade wrote. “He unlawfully placed his family business’s interest above the victim banks’ interest.”
Reade did address Rubashkin’s family situation, particularly his relationship with his autistic son. She rejected defense arguments in this case, saying that in the precedents, courts made it one of several factors.
In the case cited by the defense, the defendant had made “extraordinary efforts at restitution” – something Rubashkin did not , she argued. Reade also said that “in the vast majority of cases” that she has considered, loved ones are adversely affected, and that in this case – unlike in many others – Rubashkin’s son enjoys “a loving and competent mother as well as an extremely tight-knit, supportive extended family, all of whom are obviously devoted to him and accustomed to working with him.”
Another factor likely to be critical to the appeal of the sentencing is also central to the appeal of the conviction, the lawyers said: The judge allowed allegations of immigration law violations to be introduced both in the trial and sentencing stages, although she had earlier dismissed the immigration charges. Rubashkin was separately acquitted earlier this month of state charges of labor violations related to the alleged employment of immigrant children.
“Here’s the fallacy in all that – he was never convicted in any immigration charges,” Guy Cook, another of his attorneys, said in a conference call with Jewish media on Monday afternoon, after Reade had released her decision.
Bob Teig, a prosecution spokesman, said that the jurors considered the alleged immigration violations only as it pertained to the bank fraud charges. Teig said that Rubashkin had pledged to the banks to abide by the law, yet was in violation of immigration laws by knowingly accepting false identification documents.
“The jury finding was that he knew illegal aliens were being harbored at the plant and that he lied about that to the bank,” Teig said.
Reade cited the immigration law violations in making the case that Rubashkin knowingly defrauded the bank, but declined a prosecution request to add to the sentence because of the violations. However, the judge embedded a warning in her decision that she might change her mind if she is ordered to re-sentence on appeal.
“In the event the court is required to re-sentence Defendant, it reserves the right to revisit these upward departure provisions to determine whether their application would be appropriate,” she wrote.
Bring it on, Lewin said.
“If she’s warning us, it’s an empty warning,” he said. “We’re appealing it and we’ll get it reversed.”