Sunday, Jul 21, 2024

Rubashkin Appeal Update: Bail Motion Denied; Appeal Still Under Consideration

Sholom Mordechai Rubashkin's motion for bail pending the outcome of his appeal has been denied by the 8th Circuit Court of Appeals. The Court handed down its decision in a brief sentence, before the defense could file its response to the government brief contesting the bail motion. The judges have not yet ruled on the appeal itself. Although the 8th Circuit very seldom grants bail pending an appeal, the news dashed the hopes of many who felt this case had unusual merit and would justify a departure from routine. Prosecutors had fought the motion for bail by insisting that the defendant's “flight risk” status had not changed, and by lifting from its earlier briefs a list of falsified obstruction-of- justice and witness-tampering charges. These cast Sholom Mordechai as a chronic lawbreaker who could not be trusted to honor the conditions of bail.

The fictitious allegations did not appear in the seven superseding indictments against Sholom Mordechai, nor was he ever charged in court with obstruction of justice or witness tampering. In addition, defense lawyers pinpointed the distortions of truth, the devious innuendos and the outright inventions in the allegations.


Nevertheless, these charges were incorporated into the government’s sentencing memorandum and thereby enshrined as facts in the record. Judge Reade used them to add on additional years to Sholom Mordechai’s sentence.


Subsequent government briefs challenging the “new-trial” motion and the appeal have consistently exploited the false charges in the attempt to paint Sholom Mordechai as an incorrigible criminal. This has proved extraordinarily effective in deflecting attention from the merits of his case.


“Although [the character defamation] has no relevance to the appeal and to the issues before this Court, the government’s brief deliberately besmirches the Appellant at every turn with refuted, unsubstantiated and incredible allegations,” the Rubashkin appeal brief of January 2011 had protested.


The character-lynching dominates the latest government brief as well. Here, too, vicious character defamation, lifted word for word from the March brief, was employed to cast the defendant as a remorseless criminal who could not be trusted.


Government Unable To Challenge Key Argument


Calling the Court’s decision “disappointing,” the defense still trusts that the 8th Circuit judges will weigh the appeal on the merits. The lawyers note that mudslinging aside, the government’s brief offered no challenge at all to the bail motion’s key argument, and was reduced to quibbling over semantics.


The bail motion argued that a defendant with no history of violence, and no danger of being a flight risk, should be released on bail when the appeal raises “a substantial question of law” likely to result in a new trial.


The “question of law” may be allegations of serious legal errors in how the trial was conducted, or claims of prosecutorial or judicial misconduct that invalidate the trial.


The defendant’s oral arguments satisfied these conditions, the motion for bail said, citing at least 12 private, unrecorded meetings between Judge Linda Reade and law enforcement officials, as well as erroneous rulings during the trial that prejudiced the jury against Sholom Mordechai.


Faced with irrefutable evidence of ex parte meetings in the ICE documents, the government could not contest them, and instead quibbled absurdly over the word “meetings.”


“Defendant is wrong,” the government brief protested, noting that in five places in the ICE documents where private communications between prosecutors and Judge Reade are cited by the defense, the actual word “meeting” is not specified.


How then could attorney Nathan Lewin have told the Appeals Court that there were at least 12 meetings, when the reference is to “briefings,” “discussions” and “communications”?


Classic Red Herring


This is a classic “red-herring”: creating a diversion from the true issue by throwing in an irrelevant, and, in this case, ludicrous objection. Where does the government want us to imagine these private, unrecorded ex parte communications happened if not at “meetings?”


Suppose they were by phone, teleconference, email, web cam or any other conceivable format or venue. Does it make the slightest difference?


Furthermore, briefings and interactions between the judge and the U.S. Attorney’s Office about the planned raid that were not transmitted at official meetings, actually invite even more suspicion.


If classified information that should not have been transmitted to the trial judge at all was delivered by the U.S. Attorney’s Office in private and secret talks in an informal setting, that is even more troubling.


The government objects to the word “meetings” as a catch-all term. Yet this actually casts them in a more benign light than they perhaps warrant.


A Closer Look At the Secret Meetings


The same government brief that attempts to cast doubt on the five places where “meeting” is not specified, is silent about the remaining 7 ex parte interactions explicitly recorded as meetings in the ICE documents. That silence is akin to admission.


The government’s implicit admission is very important because the ICE documents in a number of places contradict Judge Reade’s statements about her participation in planning the raid, and what she knew about the raid’s intended targets.


Reade denied having performed any functions that fall within the executive branch [i.e. law enforcement]. She denied being told where the raid would occur and who it would target. She insisted her involvement was limited to cooperation and logistics.


Statements in the ICE memoranda tell a different story. They project an image of a federal judge taking an organizational role in the immigration raid; attending weekly meetings; personally requesting a meeting with personnel from the many branches of law enforcement who would participate in the raid; and requesting updates and final game plans.


Judge Linda Reade is seen as working very closely with the U.S. Attorney’s Office which in turn had joined forces with ICE in carrying out the operation against Agriprocessors.


Most troubling, the documents suggest that Judge Reade was involved in the crafting the final plea deals that the arrestees were virtually coerced into signing.


Below are some of the statements recorded in the ICE memoranda that cast doubt on Judge Reade’s credibility:


March 17, 2008


“On March 17, 2008, RAC Cedar Rapids (special agent in charge of raid planning) met with the U.S. Attorney’s Office, U.S. Probation, the USMS, and with the U.S. Magistrate Judge and Chief District Court Judge Linda Reade.


“The parties discussed an overview of charging strategies, numbers of anticipated arrests and prosecutions, logistics … and other issues related to the [Agriprocessors] investigation and operation.”


March 20, 2008


“We have been advised of several developments that require us to get together. The Chief Judge has indicates she wants a final game plan in two weeks. (April 4)”


March 31, 2008


“There was a meeting today regarding the Agriprocessors operation. The First Assistant U.S. Attorney Richard Murphy indicated that he has a meeting this Friday (April 4) with the Chief Judge Linda Reade who has requested a briefing on how the operation will be conducted. Murphy has conducted an operation plan from ICE … so that he can incorporate it into his presentation.”


April 2, 2008


“What is the status of our operational plan? Where are we on the documents for the U.S. Attorney’s Office Rich Murphy for his presentation to the Judge?”


April 2, 2008


“The Executive Summary of the operation will satisfy Richard Murphy’s requirement to brief the judge.”


Smoking Gun


The documents above indicate that six weeks before the May 12 immigration raid, Judge Reade was demanding an overview of the entire law enforcement operation from the U.S. Attorney’s Office, which in turn, requested the same from ICE officials.


This report is referred to in the ICE documents as the Executive Summary, singled out in the appeal as highly incriminatory due to its explicit, detailed information about the planned raid on Agriprocessors.


If the Executive Report was shown to Judge Reade, as the documents indicate it was meant for, her claim that she had no knowledge of whom the raid was targeting and where it would occur is patently false.


Asked by Chief Judge Riley at the June 15 appeal hearing what the Executive Summary referred to in defense papers is about, U.S. Attorney Peter Deegan, who gave the government’s oral arguments, said he didn’t know.


Judge Riley: What is this Executive Summary? I haven’t read it.


Deegan: I don’t know. I haven’t either. Neither has Judge Reade.


Here are excerpts from the opening paragraphs of the Executive Summary:


“On October 1, 2007, the RAC Cedar Rapids opened a worksite investigation relating to Agriprocessors, Inc. located in Postville, Iowa. Agriprocessors is a kosher and non-kosher meat processing plant.


“In coordination with the U.S. Attorney’s Office, and the U.S. District Court in the Northern District of Iowa [presided over by Judge Reade], the RAC Cedar Rapids is planning a worksite enforcement operation at Agriprocessors, Inc. This operation is in furtherance of the criminal investigation and prosecution of the corporation for knowingly hiring and harboring undocumented workers.


“The operation will include the execution of criminal arrest warrants for at least one corporate official. In addition, the U.S. Attorney’s Office has indicated they will prosecute every individual amenable to criminal prosecution…”


How plausible is it that U.S. Attorney Deegan never read this “smoking gun” document, attached as an exhibit in Sholom Mordechai’s Rule 33 motion and in the defense appeal? And how likely is it that even if, as he told Chief Riley, he didn’t know what it is and never read it, he could be certain that Judge Reade had never read it?


Imagine a scenario in which Deegan tells Reade: “The defense brief says you must have known about Agriprocessors because it’s in the Executive Summary that the ICE people gave Rich Murphy, in response to your request for a final game plan. Did you ever read it?”


What would Judge Reade have answered? “No, and I have no intention of doing so. Who cares what it says?”


Or “Show it to me. I missed it in the defense papers.”


Or, “Of course I read it. But let them try to prove I read it back in 2008.”


Even with all that we do not know about the hidden interactions in the Rubashkin case, there is enoughthat we do know today that reeks of something rotten at the core. The only way the public will ever learn the truth is if the façade is ripped off the duplicity, falsehood and implausible claims in the government’s representations.


That will only happen if the Appeals Court decides to order “discovery” and evidentiary hearings, at which all those in possession of the facts will be required to testify under oath. Let us hope that this will indeed happen, opening the door to a fuller understanding of, and resolution to, the bitter Rubashkin saga.




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