Federal prosecutors in the Rubashkin case used unlawful tactics, gave false and misleading information to the court, and covered up their actions in order to secure a 27-year prison sentence, more than 100 former U.S. attorneys general, judges and legal experts asserted in a letter to Iowa U.S. Attorney Kevin Techau.
The letter urges Techau – who was not in office when these events played out – to recognize, in the wake of shocking revelations of prosecutorial misconduct, that Sholom Rubashkin was the victim of a setup, and calls on Techau to rectify the injustice done to him.
Sholom is currently in his 7th year of incarceration, awaiting the government’s response to a “Merits Brief,” filed by his attorneys as part of his 2255 Motion to reopen the case in light of new exculpatory evidence.
Among the list of legal heavyweights protesting the actions of the prosecutors in the case are four former attorneys general: John Ashcroft, Ramsey Clark, Edwin Meese and Michael Mukasey.
Other signers include former U.S. senator and Democratic vice presidential candidate Joe Lieberman, Republican New York City mayor Rudy Giuliani, and Kenneth Starr, a renowned former appeals court judge. Former Federal Bureau of Investigation directors Louis Freeh and William Sessions, among many other prominent names, signed the letter as well.
Quoted in a lengthy article by the Des Moines Register and other papers, the letter came as new evidence incriminating the prosecutors emerged in the “Merits Brief,” filed by attorneys Gary Apfel of Los Angeles and Stephen Locker of Des Moines, Iowa. The brief asked the court to reopen the case in the wake of revelations that prosecutors knowingly elicited “false and misleading” testimony at Sholom’s sentencing hearing, and withheld important exculpatory evidence needed for his defense.
“Recently,” the letter to Techau reads, “Mr. Rubashkin filed a Merits Brief in connection with his 2255 Motion which provides overwhelming evidence that the prosecutors in your office wrongfully interfered in the Agriprocessors bankruptcy, intimidating potential buyers through the threat of forfeiture and thereby substantially decreasing the ultimate sale price.”
“At Mr. Rubashkin’s sentencing hearing,” the letter continued, “the prosecutors knowingly elicited false testimony which concealed the significant impact their actions had on the loss incurred by First Bank, and misled the judge into finding Mr. Rubashkin fully responsible for a massive loss which led to a sentence of 27 years in prison.”
Astounding Courtroom Farce
As the letter goes on to detail, the false testimony came from the government’s star witness, Mrs. Paula Roby, who served as a liaison between the prosecutors and Agriprocessors’ bankruptcy trustee, Joseph Sarachek.
Reade herself cited Roby’s assertions that there was no truth to “rumors” that the government had barred all Rubashkins from any future dealings with the meatpacking plant and chased off buyers with threats of forfeiture. She thus held Sholom fully accountable for the massive loss a lending bank had suffered when the plant’s sale to new owners yielded too little revenue to recover the $27 million loan.
The explosive new evidence in the Merits Brief, however, reveals the bank’s loss was orchestrated by the prosecutors themselves, and Roby’s performance on the stand was part of a setup that scapegoated Sholom Rubashkin.
Her false testimony consisted of repeated denials that prosecutors had employed a “no-Rubashkin” policy regarding the future ownership and/or management of the plant, and had rigorously enforced this policy with all bidders.
The no-Rubashkin rule prohibited any buyer of the plant from having any dealings with Rubashkin family members. Reinforced by threats of government forfeiture that chased off potential buyers, the no-Rubashkin rule severely depressed the company’s sale price.
“As the Merits Brief describes in detail,” the letter to Techau states, the prosecutors threatened each prospective bidder with forfeiture of the Agriprocessors business if the bidder planned to use Aaron Rubashkin in a management, consulting or ownership capacity.”
Government Claims Of Forfeiture Were Without Foundation
The sole owner of the plant, Aaron Rubashkin was never charged with any crime and was not a defendant in the case. The government’s forfeiture claims against his assets had no foundation and were likely unlawful, the Techau letter said.
In any case, no investor felt secure taking over ownership and operations in Agriprocessors without the input and expert advice of the former owners. With all Rubashkins barred from future dealings with the meatpacking plant, the company was no longer marketable. Initially valued at $70 million at the start of the bankruptcy process, its value plunged until it was finally sold for pennies on the dollar – a mere $8 million.
The insufficient purchase price caused First Bank, which held the senior security interest in most of Agriprocessors’ assets, to suffer a loss that the Court found totaled approximately $27 million.
This later became the loss amount for sentencing purposes, resulting in a substantial increase of 22 levels under the Sentencing Guidelines that equates roughly to 24 years of additional imprisonment for Sholom Rubashkin.
“The actions of the prosecutors thereby brought about the loss suffered by the victim bank,” the letter to Techau attests. “Had the company’s assets sold for $40 million, an offer the bankruptcy trustee declined because he thought an auction would yield an even higher amount – Sholom Rubashkin’s guideline “loss amount” would have been zero,” the letter notes, paraphrasing the 2255 Motion. His sentence would have been at minimum – no more than 3 years.
The Media Reported The No-Rubashkin Terms
During Agriprocessors’ bankruptcy and auction period, various investors and bidders at the Agriprocessors’ auction had experienced firsthand the government’s enforcement of the no-Rubashkin rule. Leading Iowa newspapers such as Des Moines Register and WCF Courier had even referred to it:
“The issue of possible ties to the Rubashkins would be crucial to the new company negotiating the purchase of AgriProcessors,” wrote the WCF Courier in June, 2009. Federal prosecutors, who have threatened to seize the business as part of their criminal case, reportedly have agreed to drop that effort if a new owner proves it has no links to the old owners.”
One would-be purchaser, Mr. Meir Eichler, had submitted a sworn affidavit attesting to this policy and the government’s threats of forfeiture. His affidavit was produced in court, highlighted on a large screen as Roby sat in the witness stand, insisting there was no basis for “rumors” about a “no-Rubashkin” rule or government’s threats of forfeiture.
Observers at the Sentencing Hearing may remember, as does this writer, Paula Roby being approached by a dumbfounded spectator as she was leaving the courtroom. “How could you lie like that? How could you sit there and deny what everyone knows?” the woman addressed Roby incredulously. Security guards quickly whisked the witness away.
Roby’s fabrications caused immense damage to Sholom’s case. “The court credits Paula Roby’s testimony” and “discredits” the Defendant’s testimony… and therefore “declines to consider this theory [about a no-Rubashkin rule] at arriving at an actual loss calculation,” the judge’s sentencing order read.
Seven Years Later, Explosive New Evidence
As the letter to Techau describes, it took seven years until new evidence was uncovered that exposed Roby’s falsehoods, the prosecutors’ collusion with her, and their harmful actions in blocking the bankruptcy process by wielding the no-Rubashkin rule.
That evidence, discovered by Rubashkin attorneys Gary Apfel and Stephen Locker consists of detailed handwritten notes by attorney James Rieland, who, along with his partner, former U.S. Attorney Julian Solotorovsky, were retained to represent the Agriprocessors bankruptcy trustee, Joseph Sarachek. They had – and continue to have – no connection to Sholom Rubashkin.
On December 5, 2008, the two men were meeting with Richard Murphy and Peter Deegan, lead prosecutors in the Rubashkin case. Also present was bankruptcy trustee Joe Sarachek and his counsel, Paula Roby who served as liaison between Sarachek, the bidders at the Agriprocessors auction and the prosecutors.
Reiland took down the statements made by each with attribution. In sworn affidavits, he and Solotorovsky affirm the accuracy of the transcript. Frozen in time, their notes open a window into a breathtaking abuse of government power, fully documented in the Merits Brief and the 2255 Petition.
During that meeting, prosecutors delivered the “no-Rubashkin rule” to Sarachek. The notes of the meeting record Paula Roby’s supportive comments to Assistant U.S. Attorney Richard Murphy as, along with his colleague Peter Deegan, he underscored the government’s stance on excluding all Rubashkins from future involvement with Agriprocessors as “non-negotiable.”
“No Rubashkins is very important to us,” prosecutors repeatedly stressed.
Amazingly, just a few months later at Sholom’s Sentencing Hearing, Deegan put Paula Roby on the witness stand to elicit her denial that anything of the sort had ever taken place.
Rieland’s transcript, recorded “live” at the time of the meeting, shine a light on this astounding courtroom farce.
The letter to Techau also cites previously undisclosed facts [detailed in the 2255 Motion] that show First Bank, Agriprocessors’ largest creditor, urging the government to drop its forfeiture claims against Agriprocessors as the bank was concerned such tactics would hurt the bankruptcy sale, and would jeopardize the $27 million loan they hoped to recover.
Prosecutors ignored these requests.
Trustee Joe Sarachek, in his own sworn affidavit, stated that the government’s position on no-Rubashkins and their insistence of their right of forfeiture obstructed his efforts to do the job he had been hired (by the government!) to do; to sell the plant at a price high enough to repay the company’s creditors. His attempts to explain to prosecutors that their policies were at cross purposes with this goal also came to naught.
Nine other witnesses submitted sworn affidavits confirming that as potential purchasers or bidders for the company, they were informed explicitly of the no-Rubasbhkin restrictions and subjected to government forfeiture threats. These documents were attached to the 2255 Motion petitioning the court for a new trial, or at minimum, a resentencing.
Outcry From A Courageous Former Justice Official
One cannot help but wonder what lies behind the government’s unrelenting no-Rubashkin agenda that made it impossible for the trustee to sell Agriprocessors profitably. Were the prosecutors actually seeking the huge loss they brought about? Were they intentionally trying to harm Sholom and his creditors or just being grievously shortsighted and unintelligent?
The Techau letter’s stunning expose from some of the most prominent legal personalities in the country offers no comment on the government’s mindset or motives. However, one of the letter’s signatories – James Reynolds, former U.S. Attorney of Iowa’s Northern District – apparently felt the need to go further.
No stranger to the Rubashkin case, Reynolds has been a signatory on numerous documents, letters to the DoJ and amicus curiae briefs expressing deep concern about the government’s handling of the prosecution, as well as Judge Reade’s “appearance of bias” against Sholom Rubashkin.
Along with scores of former DOJ officials and prominent legal figures, Reynolds signed a letter shortly after Sholom’s 2009 federal trial conveying outrage over the life sentence prosecutors were initially seeking.
He was a signatory to both the WLF (Washington Legal Foundation) and NACDL (National Association of Criminal Defense Lawyers) amicus curiae briefs that supported Sholom’s appeal to the 8th Circuit for a new trial. The briefs called for Judge Reade’s recusal after FOIA discoveries revealed that the prosecution and judge had engaged in serial ex parte communications.
Last month, in a separate, sharply worded letter to U.S. Attorney Techau obtained by Yated, Reynolds castigated the prosecutors for their conduct and called on Techau to right the injustices they perpetrated.
“Words cannot begin to describe my shock as I read page after page [in the Merits Brief] that my beloved former office had behaved in such an improper, and I am sorry to say, even insidious manner,” Reynolds wrote.
He placed responsibility for First Bank’s loss squarely on the prosecutors, saying “it could not be clearer that the Office was directly responsible for the loss, in light of its ill-conceived, irresponsible and perhaps even unlawful policy to exclude any member of the Rubashkin family from having anything to do with the company.”
“As I understood from the mountain of evidence contained in the brief, the Office intentionally depressed the bankruptcy sale of Agriprocessors, Inc, by use of threats of forfeiture, which the Office had no lawful right to do because the assets of that company were not owned by any defendant….” Reynolds went on.
“Had this kind of unfair, underhanded and unnecessary misconduct occurred during my tenure, you can be absolutely certain that the perpetrators would have faced consequences, the very least of which would have been the loss of their job.”
The former U.S. Attorney wrote harshly of the damage the prosecutors’ misconduct unleashed. “This no-Rubashkins policy caused great harm,” he underscored. “Great harm to First Bank. Great harm to public trust. Great harm to Aaron Rubashkin. Great unjust harm to Sholom Rubashkin. And great harm, shame and disrepute to our office.”
Reynolds concluded his letter with a hammer blow.
“Mr. Techau,” he wrote, “I know that none of these things happened on your watch. I fully realize you are not responsible for them. However, you are responsible to right the wrong….If you do not, I respectfully submit that you are surely as culpable as those who committed these acts.”
What Happens Next?
The Merits Brief calls for Sholom Rubashkin to be granted a re-sentencing free from false and misleading testimony. If the government will not concede the “due process violation,” the brief says, an Evidentiary and Discovery hearing in “light of the overwhelming evidence in Petitioner’s favor” is surely called for.
That includes depositions of Assistant U.S. Attorneys Richard Murphy and Peter Deegan to determine the truth about the issues raised in the 2255 and the Merits Brief. It also includes all communications between the government and third parties including Paula Roby, Trustee Sarachek and all bidders regarding forfeiture and the “No Rubashkin” rule.
The government’s response to the legal arguments in the Merits Brief is expected shortly.
“Abuse Of Power” And The Rubashkin Case
The concluding paragraph of the NACDL amicus curiae in support of the Rubashkin appeal of which Reynolds was a party, cites a 1940 speech given by Justice Robert Jackson when he was U.S. Attorney General, on the subject of the great potential for abuse of power in the Office of the U.S. Attorney.
The NACDL brief said Jackson’s words are uncannily relevant to the Rubashkin prosecution.
“The most dangerous power of the prosecutor is that he will pick people that he thinks he should ‘get…” Instead of discovering the commission of a crime and then looking for the man who committed it, he will pick the man and then searching the law books… or putting investigators to work, to pin some offense on him,” Jackson noted in his speech.
“It is in this realm — in which the prosecutor singles out a person he dislikes or desires to embarrass…and then looks for an offense – that the greatest danger of abuse of prosecuting power lies. It is here that the real crime becomes that of being unpopular with the governing group, being attached to the wrong political views… or being personally obnoxious to, or in the way of, the prosecutor himself.”
“Jacksons’ words are worth repeating for they apply so well to the [Rubashkin] case,” the NACDL brief stated. “When the elaborate raid on illegal immigrants at Agriprocessors did not bear fruit” [i.e. the lurid crimes that should have justified a military-style raid turned out to be nonexistent], “the prosecutors, rather than look ridiculous, searched and found another crime… And the trial judge, who was part of the planning and pre-arrest activities, imposed a sentence of over a quarter-of-a century,” to show how bad the crimes were.
“All this served to justify the huge resources that the Government had employed, with its massive raid more befitting of a bust of a well-armed drug cartel.”
Letter To United States Attorney Kevin Techau April 19 2016- rubashkin1