Facing allegations of misconduct, Iowa federal prosecutors, in their Response Brief tried to fend off the appeal’s devastating arguments with blanket denials, obfuscation, and skewed readings of the law.
Much of the Rubashkin Reply Brief is devoted to dismantling this shabby concoction, almost to the point of having to explain the obvious, as in why Monday is not Tuesday.
The Reply Brief also rips aside the facade from what it calls the “unprecedented campaign” waged against the Rubashkin family from the beginning of the 2007 ICE investigation, “culminating in the ruin of the family business and a sentence of virtual life imprisonment for Sholom Rubashkin.”
SHOLOM RUBASHKIN AS PUBLIC MENACE
The brief pinpoints the continuing vendetta against the defendant, with the government using vicious character assault in their latest brief, “to turn this [Appeals] Court against Sholom Rubashkin by falsely casting him as a public menace.”
“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 brief protested.
The document noted the striking fact that “the witnesses who testified in Sholom Rubashkin’s criminal trial – whether called by the prosecution or the defense – uniformly testified that Sholom Rubashkin was a decent, caring, modest individual, not seeking glamour, fame or riches.”
Not a single witness echoed any of the government’s language painting him as greedy, conniving, arrogant and contemptuous of the law. (The trial transcript records the government’s star witness testimony that Sholom Mordechai’s problem was that “he was too good.”)
The assault against Sholom Mordechai nevertheless fills many pages in the recent government document, describing a lineup of “bad acts” that were first invented by prosecutors in the 2009 bank fraud trial.
SHABBY LEGAL WORK
The Reply Brief marvels at how these obstruction of justice charges and other allegations that have been discredited by the defense are dusted off and showcased once again in the latest government brief.
In leaning heavily on these smear tactics, the government only serves to point up the weakness of their arguments on the real issues, the brief points out.
Filed one day before Pesach by lead appellate attorney Nathan Lewin together with co-counsel Mark Weinhardt, Shay Dvoretzky, Yaakov Roth, Guy Cook and Monty Brown, the Reply Brief exposes the shabby scholarship and obfuscation that run through the government document.
The authors deftly collapse the fabrications prosecutors have pasted together in the absence of facts and legal precedents to support their contentions.
A glimpse of the key arguments and counter-arguments is offered below.
STRIPPING BARE THE LIE
Prosecutors denied that they and Judge Linda Reade had engaged in ex parte communications. They insisted that Reade had no knowledge of who the ICE investigation was targeting and therefore could not have been discussing Agriprocessors or Sholom Mordechai Rubashkin with federal prosecutors.
The Appellate brief stripped that claim bare. It quoted government documents in which the Iowa U.S. Attorney’s Office notified Judge Reade of its intention to prosecute Agriprocessors (as early as October 2007, seven months before the raid) and “communicated [to her] the number of criminal prosecutions that they intend to pursue.”
SUPPLYING THE MISSING CONTEXT
Prosecutors made light of disclosures in the FOIA documents of collusion between the judge and prosecutors. They denied that the discovery of private, unrecorded meetings that were hidden from the defense constituted “new evidence” that would entitle Sholom Mordechai to a new trial. They insisted that these meetings and discussions revolved solely around “logistics.”
The appellate reply brief demolished this claim by supplying the context to the disputed FOIA citations. In each case, the context illuminates Judge Reade’s role as a “stakeholder” in the government investigation. She called meetings with large numbers of law enforcement and ICE officials; demanded reports about the ongoing investigation; expressed her full support for the government’s “initiative;” and expected to be privy to the “final game plan.”
THE RECUSAL ARGUMENT
The government brief tries in vain to discredit the appeal’s lynchpin argument that Judge Reade’s failure to recuse herself invalidated the trial.
The brief contends, without citing any legal authority, that a recusal argument under Rule 33 is worthless unless it is accompanied by proof of prejudice on the judge’s part that harmed the defendant.
In opening up the subject of prejudicial rulings, the government left itself wide open to scathing rebuttal. The Rubashkin Reply Brief first proved that where a judge is legally required to recuse herself and fails to do so, that alone invalidates the trial. No proof of prejudice toward the defendant is needed.
But if the government insists on such proof, the brief noted, “actual prejudice in this case is obvious.”nThe brief went on to outline a series of prejudicial rulings at the trial that made it impossible for Sholom Mordechai to defend himself, reiterating key points in the initial Appeal Brief.
THE ILLUSION OF “BALANCE”
The government had argued that Judge Reade had issued rulings that favored the defendant, such as releasing him on bail (prior to the trial) and agreeing to sever the immigration charges from the fraud charges, rulings that proved the judge was balanced.
Yet these rulings only created the illusion of balance, the Rubashkin Reply brief pointed out. Their positive effects were negated by Judge Reade’s subsequent rulings.
Reade later imprisoned Sholom Mordechai, pretending to find him a “flight risk” after he had scrupulously complied with all conditions and terms of bail.
Likewise, after agreeing to sever the immigration charges from the financial charges, Reade nullified that ruling. She honored the prosecutors’ request to hold the financial trial first and then allowed them to smuggle into the trial inflammatory evidence of harboring illegals.
THE IMMIGRATION MINI-TRIAL; TOXIC SPILLOVER
Prosecutors in effect were permitted to conduct an immigration mini-trial within the fraud trial, tactics that could not fail to confuse and sway the jury.
The “spillover effect” in fact poisoned the jury against the defendant and criminalized him in their eyes, defense attorneys asserted in the appeal. This error was aggravated when the trial judge denied the defense an opportunity to rebut the immigration allegations.
Sholom Mordechai sought to prove that experts in immigration law had been retained by Agriprocessors to help him screen out illegal workers, and were even occupied in checking the authenticity of employees’ documentation when the raid occurred.
In one of Judge Reade’s most prejudicial rulings, this testimony was barred by Judge Reade under Rule 403 (which restricts inflammatory evidence designed to sway a jury). Neither Judge Reade nor the government brief that defends her offers any insight into how the testimony of the immigration lawyers would possibly “inflame” or “prejudice” the jury.
Applying Rule 403 to this situation is simply unjustifiable, the brief asserts.
On the other hand, this same Rule 403 has enormous relevance to the defense argument that Judge Reade’s decision to allow prosecutors to hijack the financial trial with several days of inflammatory immigration testimony robbed the defendant of a fair trial.
REWRITING THE TRIAL RECORD
In response, the government protests that “Appellant seeks relief under Rule 403 but failed to identify specific evidence” that falls under this category.
“Not only that,” the government adds, “the issue was never preserved for appeal.” (Defense lawyers never objected to this evidence during the trial and therefore can’t bring it up now).
Defense lawyers never objected? Which trial is the government brief referring to? The key author of the brief is listed as none other than assistant U.S. Attorney Peter Deegan, the lead prosecutor in Sholom Mordechai’s criminal trial, a man intimately familiar with the trial record.
Could it be that he really doesn’t remember the strenuous objections of the defense to the immigration mini-trial? Guy Gook jumping to his feet with cries of “Mistrial!”? The huddle with Judge Reade at which Reade resolved this point of contention in the prosecution’s favor?
Whatever credibility the government brief might have had up to this point dramatically disintegrates under the weight of Mr. Deegan’s misrepresentations of the facts.
The Appeal devotes four pages to spelling out the inflammatory evidence that was improperly admitted. And the trial transcript records defense attorney Guy Cook repeatedly objecting and calling for a mistrial over the admission of harboring illegals testimony.
What is one to make of the government’s false assertions – by no means the only ones in the Response Brief, but certainly some of the most blatant?
Amnesia, perhaps? A slip of the pen?
Or is it possible Mr. Deegan is so certain of having the Appeals Court in his pocket that he didn’t even bother reading the appeal and has no compunctions about misrepresenting the trial record for the edification of the judges?
Prosecutors asserted that each of the major errors cited by the appeal that warrant a new trial is “harmless;” that they are insufficient grounds to warrant re-sentencing. They applied this “harmless error” rationale even to the money laundering counts, which according to the jury’s finding, should have been dropped.
Instead, the judge used them to add ten years to Sholom Mordechai’s prison term.
Nowhere is the “harmless error” argument more dishonest and misleading than regarding the money-laundering counts and the allegations that Sholom Mordechai caused the lender bank a $26 million loss.
The Reply Brief stresses that Judge Reade erred by treating the entire unrecovered loan balance ($25 million plus) as “loss,” even though only less than a third of the loaned money was attributable to alleged fraud.
Reade also refused to take into account the defendant’s motive – to keep the business afloat and buy time for its recovery, as opposed to deliberately driving it into bankruptcy to free himself of debt and make off with the profits.
GROSSLY DISPROPORTIONATE SENTENCE
“Unable to justify Appellant’s sentence based on the facts, the government repeatedly exaggerates his criminal conduct…fantasizing millions of dollars of claimed losses that neither the district court nor the Probation Office included in their own flawed calculations,” the Brief asserts.
“Nothing about his case remotely warrants the harshness of the sentence. Given what is known about who Sholom Rubashkin is, what he did, and why he did it, a sentence of 27 years in prison is one that causes reasonable people to recoil. It must be reversed,” the brief concludes.
JUDICIARY COMMITTEE OVERSIGHT HEARING RAISES RUBASHKIN CASE
As if underscoring this statement, two Congresswomen expressed their own shock and concern over the virtual life sentence at this week’s Oversight Hearing of the Judiciary Committee.
Congresswomen Sheila Jackson Lee and Debbie Wasserman Shultz questioned AG Eric Holder not only about the excessively harsh prison sentence, but the disturbing smell of injustice hovering over the case, notably the collusion between Judge Reade and the prosecutors.
“I want to touch on a letter I sent you about Sholom Rubashkin,” Rep. Shultz told Holder. “It’s a case where the judge has been accused, accurately, of some ex-parte communication and incredibly excessive sentencing. If we can follow up with you and get a response from the Department I would appreciate it very much.”
“We’ll try to certainly look at the requests you’ve made and get information back to you,” AG Holder responded.
“I would appreciate that, particularly on the Rabbi not having bail,” Rep. Jackson Lee said.