Family, friends and supporters of Sholom Rubashkin filled the gallery shortly before the hearing began in the Thomas Eagelton Courtroom in St. Louis. One could sense hearts beating in unison and almost hear the silent prayers in the emotionally charged courtroom.
Sholom Mordechai’s father, Reb Aharon Rubashkin, and four of the older Rubashkin children were joined by a number of other relatives; askonim from Monroe, N.Y. members of the media and representatives of the St. Louis Jewish community.
Whispered words of Tehillim in the gallery were no doubt echoed by tens of thousands of people across the country and throughout the world who have been watching the case. All recognize the high stakes the outcome carries for Sholom Mordechai and his family.
The case was argued before a three-judge panel of the Eighth Circuit Court of Appeals that hears federal appeals from the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Sitting on the panel were Chief Judge William Riley, a 57-year-old native of Nebraska and a Bush appointee; Diana Murphy, a 77-year-old native of Minnesota and Bill Clinton appointee; and Lavenski Smith, a 53-year-old Arkansas native and Bush appointee.
The Secret Meetings
Flanked by his daughter and law partner Alyza Lewin, and co-counsels Mark Weinhardt and Guy Cook, attorney Nathan Lewin began his oral presentation. He briefly called attention to an aggressive prosecution that climaxed in a staggeringly high prison sentence using a scheme of “fragmenting” the charges [essentially charging the defendant for the same crime over and over under different names].
Lewin then came to the heart of his presentation. He argued that the trial judge’s failure to recuse herself after multiple off-the-record meetings with prosecutors, and her failure to disclose these meetings to trial counsel, violate the Judicial Code at Section 455(a), and are grounds to vacate the trial.
He cited government documents that were surrendered after the trial which show that the judge had at least 12 separate meetings with the U.S. Attorney’s Office and with ICE officials, beginning 7 months prior to the raid on Agriprocessors.
Reade is quoted in the documents as twice pledging “to support the operation in any way possible,” as well as requesting “a final game plan” before the law enforcement action is launched. ICE documents refer to her as “a stakeholder” in the investigation and raid.
“Charging strategies” (determining what crimes the arrestees would be charged with) were discussed with the trial judge at some of these meetings. In addition, conferences with a multitude of law enforcement personnel and ICE officials in the months leading up to the raid were called at Reade’s specific request.
Lewin argued that at the very least the judge should have transcribed these private meetings that appear to cast the judge in a managerial role. He cited the opinions expressed in sworn affidavits by leading law experts that the information “blackout” surrounding the meetings deprived the defendant of the opportunity to file for the judge’s recusal, effectively robbing him of a fair trial.
Judicial Misconduct Hits Raw Nerve
Reaction from the judges who broke in with questions that consumed at least 15 minutes of the oral presentation, betrayed the extreme sensitivity of the subject matter.
Censoring a judge for breach of ethics, not to mention throwing out a trial because of it, is an extremely rare occurrence. This is especially so in the Eighth Circuit, considered “pro-government” in the context of the vast majority of cases in which it upholds government criminal convictions.
Yet the judges hearing the case exhibited fair-mindedness and a willingness to probe for the truth, even according Lewin several more minutes than his “quota” to lay out the salient facts of the case. They asked questions that enabled him to open the field of discussion and to elaborate on important points.
Chief Judge Riley wanted to know why, in view of the ex parte meetings, the defense failed to ask for the judge’s recusal before the actual trial.
“You may be right,” Judge Riley countered, “but you could make your case stronger if you could point us to any evidence of bias in Judge Reade’s rulings as a result of her pre-raid meetings.”
His question echoed the government’s argument against Sholom Mordechai’s “new-trial” motion filed in January of this year, in which Deegan, writing for the U.S. Attorney’s Office, claimed the motion had no merit because the defense failed to show prejudice on the part of the judge.
Lewin countered with a quote from a defining Eighth Circuit ruling on the subject that states, “What matters is not the reality of bias or prejudice but its appearance.” Since the law is designed to promote public confidence in the integrity of the judicial process, “the existence of actual bias is irrelevant,” the ruling makes clear.
How much confidence would the average person on the street have in a justice system that allowed a judge, who participated for months in the planning of an immigration raid on a company, to preside over the trial of that company’s senior manager? Lewin asked.
In a case tainted by the appearance of partiality, the applicable standard is that even without proof of bias, the trial must be vacated, he told the court.
Judge Psychologically Joined The Prosecution Team
He added that while the defendant could not prove that bias emanated from the pre-raid meetings, the draconian 27-year prison sentence–two years more than the prosecutors requested–rested on one-sided rulings that pervade the entire trial transcript.
Foremost among these was Reade’s fateful decision to honor the government’s wish to hold the financial trial before the immigration trial. After severing the two trials, Reade then allowed “lurid immigration-violation” testimony to dominate the financial trial for three days, poisoning the jury against the defendant, the appeal argues.
“This was death by a thousand cuts,” Guy Cook said about the toxic effect of the testimony on the jury.
When a judge has psychologically joined the prosecution team as happened here, Lewin told the court, she can–and did–use her enormous leeway in discretionary rulings to influence the trial’s outcome.
Why Did Other Defendants File For Reade’s Recusal?
Judge Smith asked whether trial counsel was aware of another Postville defendant, former Agriprocessors manager Martin DeLarosa, who had sought Judge Reade’s recusal long before Sholom Rubashkin stood trial. This defendant, too, had charged that Judge Reade was excessively involved in the Postville prosecutions related to the immigration raid.
The judge’s implication, echoing one of the government’s key arguments, was that after the DeLarosa motion, how could Rubashkin’s attorneys claim they did not know about Judge Reade’s alleged involvement in the raid at the time of his trial?
Lewin responded by explaining that the two cases were completely different.
DeLarosa had pleaded guilty under an agreement with prosecutors to harboring undocumented immigrants. According to the Des Moines Register, his attorney, Thomas McQueen, said that despite the plea agreement, his client was calling for Judge Linda Reade to step down from his case before sentencing.
McQueen filed a motion questioning Reade’s impartiality. He argued that Reade worked with the federal government in organizing fast-track judicial proceedings for hundreds of defendants, and then presided over the cases. Her involvement with prosecutorial functions should have disqualified her from presiding, he said.
Reade refused to recuse herself, insisting that her cooperation with the U.S. Attorney’s Office did not compromise her impartiality.
The time frame in which this took place was several months after the 2008 raid. DeLarosa put up a good fight for Judge Reade’s recusal, but all he had to go on were his distinct impressions of collusion between the judge and law enforcement officials driving the criminal proceedings.
It would be almost two more years before the FOIA documents recording Reade’s extensive and secret pre-raid interactions with prosecutors would come to light, too late to help DeLarosa.
Confusing Cooperation With Collusion?
At the time, Lewin told the court, no one had any clue about Judge Reade’s profound involvement in the planning of the raid. No one suspected she was regarded as a “stakeholder” in the operation; and was routinely given updates about the “final game plan,” charging strategies and other subjects that went far beyond “logistics.”
Besides DeLarosa, another Agriprocessors defendant, Ms. Karina Freund, filed for Judge Reade’s recusal through her attorney, Mark Brown. Reade denied this motion as well. In her response, Reade said she was “simply performing her official duties,” and that the defendant “repeatedly confuses cooperation with collusion.”
It is telling that the attorneys for these two defendants, no doubt aware that motions for recusal tend to antagonize a judge and might unfavorably dispose her to their clients, went ahead with their motions for recusal.
Based only on what they observed of the judge’s zealous involvement in organizing the criminal prosecutions and then presiding over the trials, the attorneys felt she had compromised her neutrality.
What does this say about the likely reaction of the “average person on the street” confonted with a judge who has, in addition to orchestrating the criminal proceedings, helped over many months in planning the enforcement action that led to the arrests?
How Important Are Written Records?
Lewin stressed that while appearances suggested the judge was aligned with the prosecution, only a transcript would reveal precisely what was said at the meetings and that judicial experts consulted on the matter said the failure to record the meetings was a serious breach of ethics.
Riley challenged that argument, saying that “judges often meet with prosecutors on matters relating to search and arrest warrants and no transcripts are kept on these meetings. “You’re asking us to write an opinion that would turn the system upside down. What distinguishes this case from others?”
The distinction, responded Lewin, is that in standard cases, even when no transcript exists, an affidavit showing “probable cause” is presented to a judge, is open to the public and is available for review. The complete “blackout” of information about what was said at the 12 meetings with Judge Reade is what distinguishes this case, Lewin said.
How Much Did Reade Know?
Judge Smith wanted to know what evidence existed that Judge Reade knew that the government raid would target Agriprocessors.
Lewin said that while the defense had no absolute proof, clear implications arise from statements in the ICE memoranda that Reade was informed of the raid’s target. One of the documents states that the U.S. Attorney’s office advised Judge Reade of the October 2007 “opening of a government worksite investigation of Agriprocessors, located in Postville, Iowa.”
Another document discusses an “Executive Summary” naming Agriprocessors as the target of the investigation that was to be shown to Assistant U.S. Attorney Richard Murphy and Judge Reade.
Later, when Assistant District Attorney Peter Deegan was presenting the government’s oral argument, Judge Smith asked him point blank whether Judge Reade knew that Agriprocessors would be targeted. “No, she did not,” said Deegan.
“How many meetings were there, in fact, between Judge Reade and the government prosecutors?” Judge Riley asked him. ‘I don’t know, I don’t know,” Deegan said, adding in the same breath, “I know there weren’t 12.”
It’s noteworthy that in contrast to Deegan’s denials, Judge Reade never challenged the factual assertions about the multiple meetings. In her order rejecting the defense’s new-trial motion, she denied only one of the “get-togethers”–that she had accompanied officials from the U.S. Attorney’s office to scout out the cattle fair grounds in Cedar Rapids as a possible makeshift courtroom.
On the rest she was silent, refusing to explain why so many meetings were necessary or what was discussed.
First Time In A Half Century
Lewin told the court that the Rubashkin case is the first time in fifty years of legal practice in which he has ever criticized a federal judge for the kind of ethical lapses for which the defense has condemned Judge Reade.
He said he is sensitive to the ramifications of putting a judge on the witness stand to defend her actions. The implications of improper conduct found in the government documents are so overwhelming, however, they call for an evidentiary hearing at which the facts surrounding the ex parte meetings can be made known.
At the very least, Lewin said, the appearance of partiality arising from the disclosure of these meetings mandate the remanding of the case to an impartial judge for review, and if necessary, re-sentencing.
The 27-year Sentence
It was only in the last five minutes of his argument that Lewin was able to address the extraordinarily harsh and unreasonable prison sentence. He first argued that the money laundering counts that prosecutors used to ramp up the sentence an additional ten years should rightfully have been dropped.
Lewin cited the landmark Supreme Court “Santos” decision that ruled that only unlawful profits obtained from criminal activity can be labeled money laundering.
There was no dispute, Lewin said, that payments to FBBC lender bank, despite being temporarily re-routed at times to keep the company viable, ultimately arrived at their proper destination. The jury ruled in a special interrogatory that the defendant did not benefit from any “proceeds” of the re-routing. Moreover, there were no claims that the bank suffered loss due to the brief delays.
Redefining Bank’s Loss As Fraud
Lewin also argued that the trial judge had made serious errors in the loss calculation that more than doubled the defendant’s sentence. As argued in the appeal brief, the trial judge, when calculating the sentence, erroneously used the figure $26 million–the entire loan balance that the bank was unable to recover when Agriprocessors went bankrupt.
By redefining the bank’s loss as “fraud,” and prosecuting the defendant for the full loan balance, the judge arrived at a sentence that is grossly disproportionate with the crime, and with the sentences imposed on defendants in similar situations.
The loss figure should have been no more than the amount corresponding to the inflated collateral (false invoices) which totaled about $10 million. The guideline range would then have been vastly lower.
Lewin argued that the judge’s refusal to take into consideration the defendant’s motive in the alleged offense as well as the many mitigating factors in the case, was unreasonable and a violation of the law.
“No matter the defendant’s motive, he committed the crime,” Judge Reade wrote in her sentencing order, effectively dismissing motive and other mitigating factors as of no consequence.
Lewin cited Sholom Mordechai’s legendary record of benevolence and community service, his desperate efforts to keep Agriprocessors from bankruptcy so that he could continue supplying kosher meat to Jewish communities; as well as his unusual family circumstances–being the father of ten children including an autistic son emotionally dependent on him. None of these factors were given any weight in the sentencing.
“In fact, Judge Reade in her Sentencing Order declared her intention, even if the appeals court would find her in error, to factor other “crimes” into her calculation,” Lewin told the court. “In the event she would be instructed to re-sentence the defendant, she resolved to calculate the same sentence, if not an even higher one.”
“If that’s the case, we are entitled at the very least to ask for a review of the case, or at least re-sentencing before an impartial judge who will approach the case with fairness,” Lewin concluded.
Bluffing His Way Through
Peter Deegan, Assistant United States Attorney from the Northern District of Iowa, then argued on behalf of the government. As if he hadn’t paid attention to or absorbed the earlier discussion that had left the government’s arguments discredited, Deegan blandly repeated them.
His presentation followed the style of his briefs–leaning heavily on obfuscation of the facts, as in misstating legal rulings and omitting the parts that contradicted his position.
“Defendant was given an opportunity to file for recusal and did not do so,” he began, trying to repackage the “motion-is-not-timely” argument that had moments before been left in tatters. “Under Rule 33, the motion for recusal has to be based on truly new information. And it has to show prejudice.”
The judges were not playing along. Chief Judge Riley broke in with, “The question is, did the defendant have sufficient information to move for recusal at the time? If he didn’t then but does now, according to my Fletcher opinion [cited earlier by Lewin], this is his second chance to do it.”
Deegan tried his argument that “defendant’s new information is not new; it was raised by the DeLarosa motion,” but that too had been discussed earlier. Judge Riley drew on Lewin’s argument in disputing Deegan. “We’re talking about a case where you might know some things at the time, but you don’t know the depth and extent of it,” Riley said.
“Defendant doesn’t dispute that he knew about at least one meeting between the judge and law enforcement long before his trial,” Deegan rolled on, “If he knew about that meeting, he should have assumed there might be more.”
Judge Riley interjected that “one meeting is certainly different from 12.”
Deegan then cited a Supreme Court ruling which he said “does not authorize the re-opening of closed legislation using a recusal motion.” Judge Smith countered by stating that defense counsel was relying on a different “mechanism” to file a late recusal motion. “Why is that improper?” he challenged Deegan.
Caught In His Own Web?
Lewin advised the court that in view of the substantial questions of law now raised about the case, he would submit a motion for bail pending the court’s decision on the appeal. The hearing concluded with Lewin’s heartfelt plea for Sholom Mordechai’s release pending the appeal’s outcome.