Government Contests Rubashkin Appeal: Smarting From Allegations of Misconduct, Iowa Prosecutors Sling Mud

SMEAR TACTICS ACCOMPLISHED THEIR GOAL

 

These smear tactics, backed by exhibits and cloaked in legal lingo, accomplished their objective at the trial. They were also used to great success in denying Sholom Mordechai bail pending sentencing. They are now apparently aimed at swaying the court of appeal judges.

 

All of these inventions were given sanction by Judge Linda Reade in her sentencing order and used by her to add a two-level enhancement to Sholom Mordechai’s prison sentence. They are now being trotted out once again to bolster a government document riddled with devious arguments and willful lies.

 

Although the obstruction charges apply only to the government’s defense of its sentencing calculations at the end of the Response brief, the litany of charges are listed for maximum effect at the beginning of the document as well.

 

Sandwiched between the orgy of mudslinging at the beginning and end of the brief are the government’s legal arguments through which the prosecutors attempt to dodge the Rubashkin appeal’s “bullets.”

 

The appeal aims its firepower at the misconduct of both the prosecutors and the presiding judge who, by engaging in extensive ex parte communications, robbed Sholom Mordechai of a fair trial. The appeal also thrusts under the spotlight serious breaches of due process in the way the trial itself was conducted and in Sholom Mordechai’s sentencing.

 

FLAGRANT DISDAIN FOR TRUTH  
 
Before discussing the government’s dodging maneuvers and reliance on denial of the facts in its response brief, this article will tear aside the veil on two of the most blatant lies in the obstruction of justice charges. None of this information is new, although many unfamiliar with the history have never heard of it.

 

The exhaustive documentation of the government’s flagrant disdain for the truth was presented over a year ago in the defense team’s Reply Supporting the Motion For Bail Pending Sentencing.

 

In addition, shortly after Sholom Mordechai was denied bail based on these libels, attorney Nathan Lewin brought evidence of the prosecution’s dishonest tactics to the attention of the Department of Justice.

 

In his letter to Criminal Justice head Lanny Breuer, Lewin described a prosecution marked by vindictive excesses, grossly apparent in the prosecutors’ willful falsification of the record. Lewin urgently requested a Department of Justice review of a prosecution that had clearly gone off the rails.

 

His early whistle-blowing unfortunately went unheard and had no restraining effect on the Iowa U.S Attorney, who went on to brandish the trumped-up charges at Sholom Mordechai’s sentencing. As mentioned above, the invented charges were used to jack up his sentencing range several years. Now they are being used again to savage his character to the court of appeals.

 

WEB OF LIES RECYCLED

 

In examining two of the lies up close – including that Sholom Mordechai “interfered with material witnesses” (people the government wanted to question) – one can see the blueprint for the government’s other inventions as well.

 

Lacking eyewitnesses or evidence of any sort to back up the majority of its obstruction charges, the government substitutes vicious insinuation. The jury or judges are expected to draw the obvious conclusion. Given the human susceptibility to innuendo, it’s a remarkably effective technique.

 

Here’s how it works: One of the people sought as a witness was an Agriprocessors supervisor, Shlomo Ben Chaim, who relocated to Israel shortly after the raid. Ben Chaim had been planning the move for several months, first liquidating his assets by selling his real estate property to Sholom Mordechai.

 

Although airtight documentation proved that Ben Chaim’s plans to return to Israel preceded the May 2008 raid by almost a half a year, Prosecutor Deegan told the judge that Ben Chaim’s move was orchestrated by Sholom Mordechai with the intent of obstructing justice by helping a witness “disappear.”

 

PROSECUTORS IGNORE EXCULPATORY EVIDENCE

 

Prosecutor Deegan knew the truth, because bank employees who handled the transference of the real estate, which was finalized before Pesach of 2008, had been questioned by government investigators. In case the prosecutor had somehow “forgotten” the time frame to which they testified, a sworn affidavit from a real estate developer, Gabay Menachem of Postville, presented by defense counsel at the bail hearing, confirmed that time frame.
 

Gabay Menachem testified that he and Sholom Mordechai often competed in bidding for real estate properties. He said that Sholom Mordechai sought to buy property that he could resell or rent out at below-value rates to his employees.

 

“Mr. Rubashkin wanted to build the Postville community,” Menachem said in his affidavit, and “would keep property and rental prices low so that his employees could find affordable housing.”

 

The affidavit also testified that to provide additional incentive to rabbis and shochtim to purchase their homes, “Mr. Rubashkin would promise to buy back their property if and when they encountered financial difficulty or chose to move from the area.”

 

Menachem said that Sholom Mordechai often outbid him on real estate just to keep the prices down so that his employees could afford to purchase or rent out the property.

 

“Between the end of 2007 and January or February of 2008, Mr. Rubashkin and I competed to buy properties that belonged to Shlomo Ben Chaim, who was then planning to return to Israel with his family,” wrote Menachem. “At that time, Ben Chaim informed me that he and Sholom Rubashkin had closed a deal on his properties,” Menachem testified, adding that an executive named Mike Kruchenberg from the local Freedom Bank had confirmed this.

 

The Gabay Menachem affidavit threw a monkey wrench into the government’s fanciful narrative about Sholom Mordechai scheming to get Ben Chaim out of the country. But prosecutors were undeterred. They acted as if the exonerating information simply did not exist and proved themselves expert at spinning the facts.

 

TELLTALE TESTIMONY

 

In the following excerpt of telltale testimony from the Detention Hearing Transcript below, listen to Prosecutor Deegan questioning Sholom Mordechai in order to get his obstruction-of-justice fabrication into the court record. He will afterward use this discredited story in his Sentencing Memorandum to justify ramping up the defendant’s jail sentence for “interfering with material witnesses and obstructing justice.”

 

Judge Reade will eagerly comply by using these charges to sentence Sholom Mordechai to additional years in prison.

 

And the government will use them again, along with other lies, in attempting to poison the appeals court judges by casting the defendant as an “utterly remorseless” criminal who obstructed justice at every turn.

 

Although the record is clear that the transference of Ben Chaim’s property took place long before the ICE raid and Ben Chaim left the country on his own, take note of how Prosecutor Deegan uses innuendo and twists around the sequence of events.

 

Note how he implicates Sholom Mordechai in Ben Chaim’s departure as though it were a conspiracy between the two men to evade the government, with Sholom Mordechai first paying for Ben Chaim’s tickets to Israel to get him out of the country and out of reach of prosecutors, and only then taking over his properties.

 

Deegan (to Sholom Mordechai, pages 45-50 of Detention Hearing Transcript): Let’s talk about Sholom Ben Chaim leaving the country. You certainly knew that he was going to leave, didn’t you?

 

Sholom Mordechai: No. If you want to know exactly what I knew, I think it was Saturday (before he left). He came over to me and said “Good-bye.”

 

Deegan: Bottom line, though, you know that his tickets were purchased on your credit card, right?

 

Sholom Mordechai: My credit card was a number in a travel agent’s office that lots of [Agriprocessors] people used. It was public. I didn’t take it out of my pocket and give it to him.

 

[The owner of the Kupcyzy Travel Agency, Tovia Kupczyk, submitted a sworn affidavit to the court that Agriprocessors employers routinely used a Rubashkin/Agriprocessors business credit card that was deposited permanently at his travel agency. Kupczyk testified under oath that this card paid for all flights out of the country by Agriprocessors’ management. In using this credit card for his and his family’s travel to Israel, Shlomo Ben Chaim was simply following standard protocol.]

 

Deegan: Prior to Shlomo Ben Chaim leaving, you had an arrangement where you were going to take over his properties, isn’t that correct?

 

Sholom Mordechai: That was not prior to his leaving. That [agreement] was way before he left.

 

Deegan: But after the raid, isn’t it true that you actually took over his properties?

 

Sholom Mordechai: Nevel Properties [a real estate company] did that.

 

Deegan: But you own Nevel Properties?

 

Sholom Mordechai: I own 50 percent.

 

Deegan: But this was discussed before Shlomo Ben Chaim left the country, correct?

 

Sholom Mordechai: Way before.

 

Deegan: It was after the raid that you took over the properties?

 

Sholom Mordechai: I’m trying to explain to you: [Our arrangement] was way, way before any trouble started. It was a deal arranged long before with [bank vice president] Mike Kruckenberg in Freedom Bank.

 

As if he hadn’t heard a word of this testimony, and without any evidence to counter it, Deegan later urged Judge Reade to deny bail due to Sholom Mordechai’s “efforts to obstruct justice by paying for flights out of the country for Sholom Ben Chaim and his family, and then taking over his properties.”

 

THE HOSAM AMARA LIBEL

 

Hosam Amara, a naturalized Arab-American, worked as a supervisor at Agriprocessors and was wanted for questioning after the raid. He was discovered to have blackmailed workers into buying used cars from him in return for which he would obtain better jobs for them at the plant.

 

Before prosecutors could question him, Amara fled to Israel on a doctored passport.

 

In their memorandum opposing bail for Sholom Mordechai, prosecutors alleged that the defendant obstructed justice by “assisting and funding” Amara’s flight to Israel.

 

This fantastic, wholly unsupported allegation was cut from whole cloth.

 

The “evidence” relating to Amara consisted of a tape recording of telephone conversations between an ICE special agent and Amara while Amara was in Israel. Amara asked that the agent “do something for me and help me” [return to the United States without having to face prosecution.]

 

After the agent said that the U.S. Attorney’s Office would “help you to help yourself,” Amara offered the information that “everybody told me” that it was easier for him to leave the United States. Then, following a few-second overlap of voices in the conversation, Amara added “including Mr. Rubashkin.”

 

At the bail hearing, defense attorneys cross-examined the ICE agent, suggesting during the few inaudible seconds of “voice overlap” that the government investigator on the phone prompted Amara to say something specific about Sholom Mordechai. Amara, trying to curry favor with prosecutors, apparently complied by hastily including the afterthought “including Mr. Rubashkin.”

 

“Did he buy you a ticket?” the ICE agent wanted to know. Amara is recorded as answering that Sholom Mordechai did not buy him a plane ticket but that he had received $4,000 from him.

 

This money, Sholom Mordechai affirmed under oath, came from an interest-free loan maintained by Agriprocessors to assist employees with family or medical emergencies. Amara had come pleading for financial help due to his wife’s medical and psychiatric problems.

 

The tacked-on words “including Mr. Rubashkin” were used to support the government’s allegation that Sholom Mordechai had urged Amara to flee. That invention was embellished by a second one: “On June 3, 2008,” the government response brief states, “defendant gave Amara $4,000 for airline tickets and told him it would be better if he just left and forgot about what had happened at Agriprocessors.”

 

MUDSLINGING SHIFTS ARGUMENT AWAY FROM THE REAL ISSUES

 

The sheer audacity of the willful lies used to paint Sholom Mordechai as a lawless scoundrel takes one’s breath away. These were compounded by many other devastating innuendos.

 

Most followed the pattern of reporting that the defendant [according to testimony by witnesses who had bought themselves leniency by testifying against Sholom Mordechai] had done something suspicious, followed by the heavily weighted innuendo: “The [evidence] was never seen again.”

 

Examples: “Defendant gathered immigration I-9 forms for employees with false identification documents. Those forms were never seen again.”

 

“Defendant took a thumb-drive containing [evidence of falsified records]. The thumb-drive and records have never been recovered.”

 

“Defendant took copies of false invoices… Those documents have never been found.”

 

Sholom Mordechai had no motive to destroy or dispose of the thumb-drive, his attorneys pointed out, because its information was duplicated in other computer files and records the government had taken possession of during the raid. The same was true of “fake invoices” and other documents prosecutors alleged he had taken.

 

In fact, during his bail hearing, when grilled by prosecutor Deegan about where the thumb-drive was, Sholom Mordechai looked his interrogator in the eye and answered candidly, “I bet you have it.”

 

His intent was clear. If prosecutors had no qualms about inventing charges in order to justify a life sentence against him, they obviously had no scruples about claiming he had purposely hidden or destroyed evidence that in all probability was sitting right there in government offices. Who was going to prove them wrong?

 

Now these same toxic libels and innuendos, along with other trumped-up charges enshrined as “facts on record,” are being used to shift attention away from the legal issues at the heart of the appeal.

 

Unable to overturn the appeal’s explosive evidence of prosecutorial and judicial misconduct, the government’s strategy is to fall back on tactics that couldn’t have worked better in the bank fraud trial.

 

The expectation of the Iowa federal prosecutors, that the honorable jurists of the Eighth Circuit Court of Appeals are no less vulnerable to emotional manipulation than the trial jury, is about to be tested.

 

DODGING THE APPEAL’S BULLETS  
 
One of the appeal’s lynchpins was the motion for a new trial under Rule 33, which states that “the court may vacate any judgment and grant a new trial if the interests of justice so requires.”

 

Calling for Sholom Mordechai’s conviction to be vacated, the appeal cited the disclosures of months of ex parte communications between the U.S. Attorney’s office and Judge Linda Reade, as revealed by government documents not available at the time of trial.

 

Sholom Mordechai argued that these communications, and the failure to disclose them to the defendant to give him the opportunity to request Reade’s recusal, disqualified the judge from presiding over his trial. He was thus deprived of due process.

 

The government response seeking to discredit this argument rested on two weak claims: a) any “new evidence” supporting a request for a new trial must be capable of winning an acquittal in a new trial and b) proof must be presented that the judge “abused her discretion” at the trial itself, not merely that the judge “appeared” to have lost neutrality due to ex parte communications.

 

Legal experts who have studied the appeal as well as the new-trial motion that was consolidated with the appeal, say that “abuse of discretion” (bias) is inherent in the judge’s very act of ineligibly presiding over Sholom Mordechai’s trial while so entwined with the prosecution.

 

Furthermore, the appeal spells out specific ways in which Judge Reade’s emotional identification with the prosecution led to rulings that gravely harmed the defendant.

 

The appeal cites Supreme Court rulings that where there are grounds to show that a judge is ineligible to preside, it is not necessary to demonstrate his or her actual bias at the trial itself and how precisely it harmed the defendant.

 

That would render meaningless the constitutional safeguards that are meant to prevent such harm in the first place. We might as well do away with the judicial code altogether.

 

In any case, the appeal makes it eminently clear that judicial bias is the core issue in this case. After uncovering the hidden linkage between the judge and the prosecutors, the appeal argues that due to Judge Reade’s emotional investment in the prosecution bolstered by months of collaboration, she was psychologically unable to fulfill her mandate as a neutral judge.

 

A neutral judge would have been able to correct the extremism and overzealousness of the prosecutors in the interests of guaranteeing the defendant a fair trial. Reade was wholly unequipped to fulfill this vital function.

 

DENIALS RING HOLLOW  
 
The government sought to defend itself and Judge Reade by insisting that Reade’s months of involvement concerned matters of “logistics” and had nothing to do with “prosecutorial” functions.

 

To any careful reader, the denials that fill the pages of the government’s Response brief ring hollow. They fail to address the fact that Judge Reade was referred to in the FOIA documents as a “stakeholder” in the raid. She was so central to the government’s operation that she felt entitled to demand “a final game plan” two weeks before the raid.

 

She also asked for a rundown of charging strategies (the specific crimes the arrestees would be charged with) and other vital information connected with the prosecution to which a presiding judge should not be privy.

 

Experts who have combed through the documents say that Reade’s protestations, echoed and quoted repeatedly in the government’s Response, that she “had no idea” who the target of the raid was, or even where the raid would be carried out, defies credibility.

 

EXPERTS: GOVERNMENT CONDUCT “UNCONSTITUTIONAL”
 

This judge’s conduct was clearly unconstitutional, say the nation’s most prestigious authorities in legal and judicial ethics, Professor Steven Gillers and Mr. Mark Harrison.

 

Weighing in on this debate several months ago, the two sharply criticized Judge Reade and the Iowa U.S. Attorney for crossing the bounds of judicial and legal ethics.

 

In a written legal opinion addressed to the Eighth Circuit Court of Appeals, Mr. Harrison, one of the key architects of the Code of Judicial Conduct – the country’s standard judicial ethics guidebook – asserts that Judge Reade repeatedly violated the Code’s provisions.

 

The renowned legal authority studied the defense’s Motion for a New Trial filed in August 2010 and the government’s response to that motion. His scrutiny included the newly released FOIA documents.

 

Those documents, he said, showed that Judge Reade had initiated and authorized private meetings with federal prosecutors and law enforcement agents regarding the planned raid on Agriprocessors.

 

In his affidavit to the Eighth Circuit, Harrison said that Reade’s meetings with these government authorities violated the Judicial Code. “Meetings or communications about impending litigation between a judge and only one side, to the exclusion of the other parties or their lawyers, are prohibited,” Harrison wrote, stating his belief that Sholom Mordechai’s conviction should be vacated.

 

IOWA PROSECUTORS: THERE WERE NO EX PARTE MEETINGS

 

The government’s response tries to neutralize the stinging allegations of ex parte discussions between the judge and the prosecutors with a limp argument. At the time of the ICE investigation, no criminal proceedings were yet underway, and therefore accusations of ex parte (one-sided discussions) do not apply, the brief said.

 

Anticipating this argument, Harrison, in his affidavit attached to the new-trial motion, wrote: “The meetings in question all concerned an impending matter – the Postville raid and the arrest of Agriprocessor employees and officials – and therefore clearly involved what the Code of Conduct defines as ex parte.”

 

The ACLU of Iowa and the NACDL, two of the nation’s most respected legal advocacy groups, have both condemned the blurring together of the executive and judicial branches in this case. The NACDL brief said that Reade conducted herself as an arm of the prosecution. The ACLU wrote that Sholom Mordechai must be granted a new trial: “Due process demands it. The Constitution demands it.”

 

WITH ITS BACK AGAINST THE WALL   

That the government has its back against the wall was obvious from the Iowa U.S. Attorney’s efforts to bar three amicus curiae briefs supporting Sholom Mordechai’s right to a new trial, a brazen move that affronted the legal community.

 

The government argued that the briefs should not be admitted because they presented no new arguments. Trying to suppress those “friends of the court,” however, only made their voices louder.

 

The government’s motion to resist the briefs was condemned as a “knee-jerk attempt by an isolated U.S. Attorney smarting from allegations of misconduct” to tamper with a time-honored feature of appellate litigation.

 

Realizing its mistake, the U.S. Attorney’s Office withdrew its opposition, excusing its about-face with the claim that it wanted the opportunity to answer the arguments raised by the ACLU, WLF and NACDL.

 

It’s more than likely, however, that the prosecutors’ flip-flop was made under pressure from their superiors in Washington, because in the end, the government offered no challenge to the cogent arguments raised by the legal advocacy groups.

 

The prosecutors limply echoed an earlier posture that the briefs present nothing new and “do not warrant further discussion here.”

 

The amici’s well-aimed bullets had obviously hit home.

 

[More on the government’s response to the appeal to follow.]