EFTA02427451.pdf

To: [email protected][[email protected]] From: Aleph Institute - Advisory Sent: Mon 3/29/2010 1:06:28 PM Subject: CALL TO ACTION Dear friends, American Jewish leaders who have been working closely with Sholom Mordechai lawyers are very concerned about his incarceration and his upcoming sentencing, currently April 28. This tragic case is at a critical juncture right now, and demands our attentie even as we are all busy with Pesach preparations. In issuing this call to our friends and constituents, we are in no way condoning any conduct. However, as detailed in the memo below, prepared by a lawyer familiar with the that the federal government has been overly zealous in pursuing Mr. Rubashkin and has si considerably more severe restrictions and potential punishment than others in similar case: quite an eye-opener, well worth reading despite its length. The bottom line is that Mr. Rubashkin is being kept in jail pending sentencing, a being allowed to go home for the Passover Seders despite his willingness to post a large full-time guard. With respect to the sentencing, he faces the possibility of life in prison( thi Report prepared by the probation department tallied the sentencing guidelines to be life it probability of a 28 year sentence, - far beyond the sentences imposed on others whose significantly more severe than anything Mr. Rubashkin may have done. We are therefore asking you, our friends and constituents, to take a few minutes your respectful concem over the handling of the Rubashkin case, and the excessive se considered. Please make your concerns known to the Justice Department's Intergovemmei Liaison Office. Phone: 202-514-3465 Email oiplOusdoimov (please copy preiusficeforshi suggestions for topics to be covered in your email or phone call: • Sholom Rubashkin shouldn't be in jail pending sentencing He has a ri • Stop treating Sholom Rubashkin more harshly than you have treater • Sholom Rubashkin should not be sentenced to a long prison term for his c did not gain personally from the mistakes he made and had no intention causin. loss to anyone. These emails are critical and will be forwarded to the US Attorney handling the EFTA_R1_01496621 EFTA02427451  are able, please sign the online petition available at http://www.theoetitionsite.com/2ffair-a for-sholom-rubashkin . This petition will be forwarded to the U.S. Attorney's office in k prosecuting the Rubashkin case. We are hopeful that this expression of public support wil impact on the outcome of the case. Please consider forwarding this to your family and friends as vi • • MEMORANDUM REGARDING GROSS DISPARITY IN PROSECUTORIAL TREATMENT OF SHOLOM RUBASHKIN (prepared by a lawyer familiar with the facts of the case) Introduction This Memorandum describes the gross disparity between usual procedures in ft prosecutions under the immigration and bank-fraud laws and how Iowa federal prosecut case of Sholom Rubashkin, the Orthodox Jewish Hasidic businessman who was arrested law violations relating to the Agriprocessors plant in Iowa and was found guilty after a jury t and failure to pay cattle owners promptly. The enormous disparity between the treatment of Mr. Rubashkin and others who c offenses began with the Immigration and Customs Enforcement ("ICE") raid on Agriproce 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 Agriproc plant that ICE might be planning a raid, Agri took the advice of the American Meat Institute services of Robert W. Kent, Esq., an attorney with the international law firm of Baker & Mc had represented Swift & Co. - a meat-packer that had been raided by ICE in six states in I when approximately 1,297 illegal employees were found. When ICE sought to raid Swift Kent persuaded them to proceed without a raid and instead to examine Swift's employm' weed out the illegal immigrants. Kent called the Iowa prosecutors on May 9, 2008. and fo faxed letter the same day requesting a meeting and stating that Agri - which was "the larg production company in the country' — wished to cooperate with ICE and avoid the danger 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 Ma by Blackhawk military helicopters. A total of 389 illegal immigrants were arrested and enter production-line fashion after being told that they could be charged with a major federal crii the Supreme Court held in 2009 (Flores-Figueroa v. United States, 129 S. Ct. 1886) wa: their situations. The Department of Homeland Security reversed ICE's raid policy an• announcement made on April 30, 2009. will conduct raids only in extremely limited circ The May 2008 raid received national publicity and ultimately resulted in the bankr demolished PosNille's economic infrastructure, destroyed a legitimate business that was t employer, wiped out livelihoods of both legal and illegal employees, forced businesses to drove away residents. Postville's population has shrunk by half, and many of those who re to sell their homes. The town is nearly insolvent. And the raid also demolished the print kosher beef and poultry in the United States, creating kosher meat shortages across 2. Was the Post-Raid Treatment of Rubashkin Comparable to Other ICE Rai( (a) Swift & Co. - Although Swift was a major employer of illegal workers in six st illegal employees were found on those premises in the December 2006 raids, neither the c of its officials were criminally charged. In Iowa, for example, one United Food and Comrr ("LIFCVV") official at Swift's Marshalltown, Iowa, plant was charged in an Iowa federal cou EFTA_R1_01496622 EFTA02427452 illegal immigrants and was sentenced to one year and one day in prison and a $2000 fine . guilty by a jury. Another Swift employee who had pleaded guilty was sentenced to ; (b) Michael Bianco, Inc. ("MBI") - A manufacturer of leather goods and hand Bedford, Mass. was raided by ICE on March 6, 2007, after an undercover operation frou learned that Francesco Insolia, the owner, intentionally sought out illegal immigrants and with punitive fines and terrible working conditions. Approximately 326 illegal workers were raid. Insolia was sentenced in January 2009 to one year and one day in prison and fined company was fined $1.51 million and ordered to pay $460,000 in restitutior (c) Action Rags USA - A Houston, Texas clothing and rag exporter company was June 25, 2008 - little more than a month after the Agri raid. Approximately 85% of the bus consisted of illegal Mexican immigrants, and approximately 150 immigrants were arrest( Mubarik Kahlon, and two managers were indicted on immigration charges in July 2008. A for June 15, 2009, but on June 10, Kahlon and one manager pleaded guilty. Kahlon was s years' probation and a $6,000 fine. (d) Miyako Sushi and Panda China Buffets - ICE raided these restaurants in Maryland in June 2007, on evidence that illegal workers were hired as below-minimum-w (paid in cash) in the restaurants and were provided living accommodations in condominiur restaurant owners. Bo Hao Zhu and Siu Ping Cheng. The owners pleaded guilty to imr violations and were sentenced on September 12, 2008, to 18 months' probation. Their p ordered to pay a $50.000 fine. (e) Rosenbaum-Cunningham International, Inc. ("RCI") - On February 22. 200: locations in 17 states of a national janitorial service that provided cleaning crews for rests( RCI janitorial employees were illegal immigrants who had no documentation whatever, an in cash. The owners, Richard M. Rosenbaum, Edward Scott Cunningham, and Christina I charged not only with immigration-law violations, but also with defrauding the United Stab $18 million in federal employment taxes. On March 4, 2008, Rosenbaum was sentence imprisonment, Cunningham to 51 months, and Flocken to 30 months. The cases described above are typical. No case following an ICE raid has even close to the draconian threats and punishments imposed on Mr. Rubashkir 3. Were Post-Raid Publicized Arrests and Imprisonment of Rubashkin Warr Following the nationally publicized Agri raid, the Iowa federal prosecutors col investigation of Agri. The sworn complaint on which the raid was based had acknowledg( screened job applicants and had, in fact, twice rejected an ICE undercover agent who employment with false identdy papers. Only when ICE provided him with authentic docum hired. Rubashkin denied that he had knowingly violated the immigration laws and Agri retai to discuss the charges with the prosecutors. The prosecutors made arrests and filed immigration-law charges against varic employees. Most of these steps were accompanied by substantial local and national put forAgri and Rubashkin was in regular communication with the prosecutors to attempt a potential criminal charges against Agri and Rubashkin. Although he was served with a letter identifying him as a "target" of the investigat himself remained in his Postville, Iowa, home during the almost six months following the ra trip to Canada to visit a sick friend and retumed promptly to Postville. There is not a scint that he made any effort to flee. It was clear that Rubashkin would surrender voluntarily if notified of any charges prosecutors had him arrested without advance warning, to the accompaniment of grea October 30, 2008. Page A14 of The New York Times of October 31. 2008, for exampl headlined "Arrest Made in Iowa Plant Case and a photograph - coverage that would not EFTA_R1_01496623 EFTA02427453  had counsel been requested, as is customary in such cases, to bring in his client to ans An indictment charging one violation of the immigration laws was returned. At Ri hearing on the indictment, the prosecutors and the Magistrate Judge permitted him to be r million bond and with an ankle bracelet and electronic monitoring. Individual employers chi immigration-law prosecutions have been released either on personal recognizance or on tl a nominal bond. No other employer accused of violating the immigration laws has ever bei an electronic bracelet or required to post a bond of $1 million. On the day following his release, the Iowa prosecutors had Rubashkin arrestec allegation that he had committed bank fraud after his first arrest. Their claim was that, certifications that Agri made to the St. Louis bank with which it had a $35 million line of cm represented that it was in compliance with the law when, in fact, it was harboring illegal ir that Agri had failed to deposit all checks it received from customers in the "sweep acct security for the bank loan and had temporarily used (but had subsequently reimbursed) m and school in PostviNe that Agri was administering. Although there was no proof that the bank was actually misled by this conduct or which timely interest payments continued to be made even after the raid, was imperiled Iowa prosecutors asserted that this conduct by Rubashkin constituted "non-compliance" v Rubashkin's release on bail and asked that he be denied bail and imprisone Among other arguments for denying bail to Rubashkin, the prosecutors asserted could flee to Israel because he is Jewish, although there was no evidence whatever that I travel to Israel. This same specious contention would justify the imprisonment of any Jean arrested on any charge. In his opinion denying bail, the Magistrate Judge accepted the la claim regarding flight to Israel. Rubashkin spent the next 76 days in prison. No other individual accused of an in violation and no other non-violent and non-threatening person charged with nothing MOr compromised the security of a bank loan that was otherwise being kept current has ever k prior to trial on such a charge unless he was apprehended while actually attemptin 4. Why Were Seven Superseding Indictments Filed With Inflated Allegations and Demand? After a hearing held in January 2009, the District Judge found insufficient evidE Rubashkin in prison as a "flight risk" and ordered his release pending trial. In the meant prosecutors had begun ballooning the immigration and bank-fraud charges with a series indictments. The following is a list of the dates and number of counts of the superseding ir First Indictment November 13, 2008 Second Superseding Indictment November 20, 2008 Third Superseding Indictment December 11. 2008 Fourth Superseding Indictment January 15. 2009 Fifth Superseding Indictment March 31, 2009 Sixth Superseding Indictment May 14, 2009 Seventh Superseding Indictment July 16, 2009 EFTA_R1_01496624 EFTA02427454  The basic charges of immigration-law violations and bank fraud remained the sam entire series of indictments. In the Third Superseding Indictment the prosecutors added the entire Agri business be forfeited to the United States. That demand - for the forfeiture of a because some of its employees were illegal immigrants - was not made in any other case i of the immigration laws. The Fourth Superseding Indictment added the allegation under 7 U.S.C. § 195 tha failed to make prompt payments to cattle owners in violation of an Agriculture Departm because his payments were, on occasion, several days late. This was the first time in the I law enforcement that such a criminal charge has ever been made. The number of charges was increased by the Iowa prosecutors not because any were discovered. Rather, the basic bank fraud allegation was multiplied because each advances of funds to Agri under the $35 million line of credit and each month's report to t was charged as a separate offense. Money laundering was also alleged to have been cc Rubashkin deposited some funds received from customers to the accounts of a local Rost and religious school that Agri was maintaining in Postville. The effect of this deliberate fragmentation of charges was that Rubashkin was t before a jury not on one basic charge of submitting false reports to the bank regarding the bank's loan, but on 91 counts of bank fraud, money laundering, and failure to pay cattle d found him guilty on 86 counts. b. Why Did Prosecutors Prove Immigration-Law Violations at the Bank-Fra Recognizing that the jury would be prejudiced against Rubashkin in considering • allegations if it heard evidence regarding immigration-law violations, the District Judge se' the 72 immigration violations in the Seventh Superseding Indictment from the 91 bank-f Nonetheless, contending that he committed bank fraud when he represented to the banl complying with the law, the Iowa prosecutors presented more than two days of highly i testimony regarding the immigration allegations during the bank-fraud trial. The District repeated defense requests for a mistrial. 6. Why Was Rubashkin Denied Release on Bail Pending Sentenci During the almost ten months between his pretrial release (after 76 days in prisc complied punctiliously with all the bail conditions. His probation officer even testified that a when his electronic ankle bracelet became dislodged, "he alerted her immediately to allow repair." The District Judge found "that Defendant took great pains to comply with the tern release." Nonetheless, when the jury retumed a guity verdict, Rubashkin was immediatel! prison. In a hearing on the Iowa prosecutors' request that he be denied release pending defense offered to post as security approximately $8 million in the equity of 43 supporters and to pay for a 24-hour armed guard that would prevent him from leaving his home authorization. The District Judge granted the Iowa prosecutors' request, and Rubashkin h the Linn County Jail for more than 130 days, in addition to the 76 days he spent in pri: November 2008 and January 2009. The law regarding release pending sentencing (the Bail Reform Act of 1984, 18 U does not authorize the pre-sentencing imprisonment of a defendant who is not a danger to he is not a "flight risk" and his future presence can be assured by any conditions of relea: Judge stated no reason for imprisoning him other than her unsupported concluding staten "flight risk." The Court of Appeals denied bad also without stating any reason. These unexi bail violate the provision of the Bail Reform Act that requires "a written statement of re. detention." 18 U.S.C. § 1342(i)(1). 7. Why Has Release for Passover Seders Been Opposed? EFTA_R1_01496625 EFTA02427455  Although Rubashkin's counsel believe that any detention of Rubashkin before sent( and are applying to the Supreme Court to reverse the rulings of the District Court and the they filed on March 18, 2010, a motion to permit him to observe the first two days of Pass and 31) at home. The motion was opposed by the Iowa prosecutors and was denied by tl on the day after it was filed. Federal law (the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 and th Use and Institutionalized Persons Act. 42 U.S.C. § 2000cc-1(a)) protect the religious right federal custody unless the Government has a "compelling interest" in denying the religio taking the least restrictive alternative" in enforcing that interest. Neither of these standards the Iowa prosecutors or the District Court in denying permission to Rubashkin to observe 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 frc presented to the lending bank. Evidence of his very modest lifestyle and his extraordina proffered at his trial but objected to by the Iowa prosecutors and excluded by the District father of 10 children, including an autistic teenage boy who depends on him. Nonetheli prosecutors have indicated that they view an appropriate prison sentence as being in the range. Although they dismissed the 72 immigration-law counts after the jury's verdict on allegations, the Iowa prosecutors have submitted to the probation office more than 30 pat inflammatory allegations regarding the employment of illegal workers at Agri. These ass Rubashkin has never had any opportunity to challenge and disprove - are designed to prej Judge against Rubashkin and increase his sentence. EFTA_R1_01496626 EFTA02427456