Rubashkin Sentence Seen As ‘Piling On’

James A. Cohen in The Jewish Week, June 23, 2010

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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.