Sholom Rubashkin’s lawyers presented a brief to the United States Court of Appeals for the Eighth Circuit on May 23rd, arguing that he should be allowed to appeal the judge’s decision rejecting his § 2255 relief motion.
The brief is very powerful and points out how ridiculous the position of the judge and the government is in violating his constitutional rights.
It alleges that the government of “using the threat of forfeiture in an apparently-unprecedented way to dictate who could own and operate the successor entity to Agriprocessors rather than allowing a bankruptcy judge to make those determinations in accordance with the provisions of the Bankruptcy Code (which one of the AUSAs said he did not trust).
“Failing to disclose to Rubashkin’s counsel complaints from the crime victim (a sophisticated financial institution) and the bankruptcy trustee about the devastating effect of the government’s forfeiture position on the bankruptcy sale price even though this was a disputed issue at sentencing and had an enormous impact on Rubashkin’s Sentencing Guidelines range;
“Eliciting sentencing testimony from a witness that prosecutors’ use of forfeiture “did not” affect potential bidders despite having withheld the victim’s and trustee’s statements to the contrary to those very prosecutors and witness;
“Failing to disclose the existence or substance of meetings in which prosecutors told the bankruptcy trustee and his counsel that “No Rubashkins is very important to us—non-negotiable” and there could be “no involvement of Rubashkins from any standpoint (control, benefit)” in the successor entity to Agriprocessors;
“Allowing the bankruptcy trustee’s counsel to testify falsely that a “prohibition [on Rubashkins] was never leveled” and “there was none [No Rubashkin condition] to my knowledge” despite prosecutors’ earlier contrary statements directly to that witness (as well as other false and misleading testimony from the same witness); and,
“Failing to correct the District Court’s erroneous ruling, reached on the basis of the trustee’s counsel’s testimony, that “there was no such condition attached to the sale of Agriprocessors.”
It is hoped that the justices will grant the certificate of appealability and that Sholom Mordechai ben Rivkah will be granted justice.