By Debbie Maimon for Yated Ne’eman
Nothing exposes the government’s flawed, overzealous prosecution of Sholom Mordechai Rubashkin as much as the prosecution’s decision last week to drop all 72 immigration charges against him.
This move followed just a few days after Rubashkin’s conviction on bank fraud charges, in a trial marked by bizarre irregularities and one-sided rulings from the bench that all but pre-determined a guilty verdict.
The move to dismiss immigration charges took many by surprise. Prosecutor Peter Deegan‘s reasoning was that a conviction on immigration charges would be completely “eclipsed” by the severe sentence Rubashkin faces for bank fraud. He also cited the expense of a second prolonged trial and the inconvenience to the witnesses.
The decision was hailed by defense attorney Guy Cook, who said the charges should have been dismissed long ago, and that the dismissal vindicated his client. Yet many who followed the case closely suspect the prosecution’s move was self-serving.
They feel it was driven by an unwillingness to hold a trial that might end up focusing unwanted scrutiny on the government’s actions in connection with the raid, and the excessive prosecution of Sholom Mordechai Rubashkin.
How Prosecutors Won Their Case
How were charges deemed so serious that they were used to justify the devastating raid at AgriProcessors so simply dropped? Weren’t immigration violations part of the very backbone of the government’s case?
The charges of harboring aliens and aiding them in document fraud were in fact responsible for almost half of the 163-count indictment against Rubashkin. Not only that, but the now-dismissed charges, although they were supposed to be barred from the fraud trial, actually played a key role in the jury’s guilty verdict.
U.S. Prosecutor Peter Deegan acknowledged as much in his motion to dismiss: “The jury’s verdicts on several of the fraud counts were premised, at least in part, upon the defendant knowingly [misleading] the bank with regard to harboring undocumented aliens…” he wrote.
Jurors already heard much of the evidence of Rubashkin’s guilt in regard to immigration violations, and even “premised” their verdict on it. The “public interest would not be served” by repeating the process, Deegan said.
Wait. Let’s have that again.
Prosecution rides roughshod over Judge Reade’s ruling to exclude immigration testimony from the bank fraud trial; sneaks in many hours of such testimony; uses it to paint the defendant as an arrogant lawbreaker which persuades the jury to return a sweeping guilty verdict—only to drop all 72 immigration charges afterwards?
Simply put, the prosecution won a conviction that will send a man to jail for life based in large measure on charges that have now been totally dismissed!
If that isn’t scandalous enough, what of the prosecution’s manipulation of the jury by mixing immigration-violation testimony into the fraud trial —with an apparent green light from the bench despite Reade’s earlier ruling forbidding it?
The likelihood of confusing the jury by mixing the charges is precisely why Judge Reade ruled they should be separated. Yet, over the defense’s objections, she allowed the testimony, ignoring three defense motions calling for a mistrial.
This is the same judge who not only authorized the raid on AgriProcessors, but helped prepare the plea bargain scripts that illegal immigrants were forced to use, and worked actively with prosecutors in expediting their sentencing.
What is one to make of this breathtaking disregard of due process, the most basic and fundamental right of every citizen in this country? Read on. It only gets worse.
‘Dirtying Up’ The Defendant
Defense attorney Guy Cook protested the prosecution’s tactics of “dirtying up” the defendant with unrelated charges in order to criminalize him in the jury’s mind.
Prosecutors were required to prove that Rubashkin had “criminal intent” in his dealings with the bank, but lacked the evidence to support fraud and money-laundering charges. Their strategy was to prop up a weak case by selling the jury a sinister profile of a man who played fast and loose with immigration laws, by harboring aliens, conspiring to engage in Social Security fraud, and other immigration-related crimes.
These tactics worked, but only because Judge Reade made sure they were not undermined by defense witnesses who challenged their credibility. These witnesses included lawyers, CPA’s and ordinary citizens who came forward to prove that Rubashkin had hired lawyers to help resolve his immigration problems prior to the raid.
Their testimony exposed the falsity of the charges of bank fraud and money-laundering.
Yet the jurors never heard a word of their testimony. They were sent out of the courtroom while these witnesses took the stand.
Cook said this subversion of the jury process would be a key argument in Rubashkin’s appeal. “The government poisoned the financial trial with prejudicial evidence from the immigration charges, which for their own reasons they have now dismissed,” he said.
Putting ICE Raid On Trial
Critics of the government’s ICE raid on AgriProcessors, including immigration lawyers and activists for immigration reform, were deeply disappointed by the dropping of charges. They had hoped to use the trial as a platform to expose the mistreatment of the men and women who were seized and prosecuted. Sharp criticism of the unprecedented harshness that characterized the raid continues to hound ICE, and has led to the formation of a congressional subcommittee to investigate the matter.
Many say the trial’s dismissal, in addition to avoiding unnecessary expense and inconvenience, saves ICE authorities from being “put on trial,” themselves. Having their actions in connection with the raid subjected to scrutiny might open up a Pandora’s Box.
Critics want to know how and why the huge, coordinated effort that required intense planning and vast resources before it swooped down in May 2008, seizing about 400 workers, was first launched. Who gave the go-ahead to this enforcement action? Who wrote the “stage instructions” for shotgun-wielding agents in heavy riot gear to break down doors and corral the workers, whisking them away in chains to makeshift courts and detention centers in northern Iowa?
At this far-flung location, far from their homes and family members, the immigrants, most of whom spoke no English and were given minimal translation, were pressed to plead guilty and serve five to 12 months in prison, or face a maximum of 10 years and a $250,000 fine at trial.
Their plea agreements had been pre-scripted by government authorities, one of whom was Judge Linda Reade, and required the immigrants to admit to aggravated identify theft—a charge that carries serious prison time—and to cooperate with the government in helping to prosecute others.
Even after serving their five-month sentence, the ordeal continued for some 40 of the “convicts,” recalled against their will as material witnesses in the charges now being dropped.
Witnesses Begged To Be Deported
Now that they are no longer needed, they are begging to be deported. They have no livelihoods, homes or community to return to in this country. After more than a year in legal limbo and electronic shackles, with the families they supported enduring severe hardship, they have only one desire: to be allowed to leave the country and rejoin their families in Guatemala and Mexico.
Local community leaders Decorah and Postville, Iowa, said federal authorities dumped the potential witnesses in their towns without making arrangements for their housing, food or work. The men showed up in the November cold shoeless, wearing light prison-issued clothing and socks with thin soles, a community spokesmen told The Gazette, a local paper.
What An Immigration Trial Would Uncover
If the immigration charges against Rubashkin were allowed to go forward and these witnesses had a chance to testify, ICE officials would be forced to address a number of burning questions.
• “They’d have to answer why illegal immigration was singled out and criminalized at AgriProcessors in a way it has never been before,” writes Dr. Erik Camayd-Freixas, a professor of Hispanic studies at Miami University, who also served as a court appointed translator for arrested immigrants at AgriProcessors.
“A year later, it is clear that the feds crushed hundreds of workers and their families, at an unprecedented scale, to build an exemplary immigration case against Sholom Rubashkin,” he said. “Dropping those charges now as unnecessary makes the raid all the more scandalous.
“Under the old way of doing things, the illegal workers would have been simply and swiftly deported. Instead, more than 260 were charged as serious criminals for “aggravated identity theft” –for using false Social Security numbers, and most were sentenced to five months in prison.”
• At an immigration trial, officials would be forced to address the fact that a few months following the raid, the US Supreme Court slammed the charges of ID theft that were used to coerce guilty pleas from the immigrants. The court said identify theft applies only when the defendant knows the correct identify of the owner whose documents he steals.
In the case of the illegal workers, most had no clue about the significance or content of their false papers. Their convictions should therefore have been vacated and the people freed. Why weren’t they?
• Why was Agriprocessors targeted when it is widely known that the livestock industry uses illegal immigrants extensively? With 19 million illegals and a cloudy policy at best, why was Agri singled out? In an immigration trial, these questions could no longer be stonewalled.
Rubashkin’s lawyers have for months been requesting documents explaining how the raid was planned, organized and executed. They want to know how the operation was justified, how authorities arrived at the presumption that violation of the law was the norm at AgriProcessors. ICE officials have repeatedly shunted aside their requests.
After three follow-up letters asking ICE officials about the open-records request, defense lawyers sued for the information under the Freedom Of Information Act. “Despite several requests for production of the information sought, it is apparent ICE will not honor Sholom Rubashkin’s FOIA requests without legal pressure,” Guy Cook and Montgomery Brown wrote in the lawsuit.
• An immigration trial would have produced evidence that crippled the prosecution’s charges that Agriprocessors not only knowingly hired illegal aliens, but aided them in document fraud. The plant twice rejected the employment application of a federal “sting” informant because of fraudulent work documents.
He was hired the third time he applied after authorities equipped him with legitimate papers, and he was thus able to infiltrate the plant. With clear evidence that the plant had screening procedures in place and did not indiscriminately hire illegal aliens, “prosecutors knew their case was tenuous,” noted Washington attorney Nathan Lewin. Is this why they decided to cook up a bank fraud case against Rubashkin?
• Had an immigration trial gone forward, ICE officials would have to address the fact that prior to the raid, the plant had retained a prominent international law firm to negotiate with ICE officials so as to resolve his immigration problems and remove illegal employees. The law firm had represented a large beef-slaughtering operation that had employed hundreds of illegal aliens, and these lawyers had succeeded in avoiding a raid.
But in the case of AgriProcessors, the federal agents refused to call off the planned raid. Why? The brutal enforcement action and the attendant national publicity poisoned public opinion against Rubashkin, dooming both him and his company. Who in the chain of authority wanted this to happen? Who had so little regard for the sweeping collateral damage in terms of lives shattered, and the economic wreckage of an entire town?
What Became Of The Government’s Lurid Allegations?
Remember the first reports that hit the press right after the government raid last year? AgriProcessors was painted as a den of iniquity by an ICE affidavit that allegedly uncovered lurid criminal activity.
In addition to harboring aliens, and exploiting and mistreating their workers, the plant was accused of being a front for drug production, of harboring a Meth lab within its facility. Weapons and bombs were said to be present in the plant. One affidavit even quoted a worker who claimed he was tied up by a rabbi!
The lies and fabrications were so ludicrous, they would have been laughable had they not been gobbled up by a media and a public willing to believe the worst.
Whatever happened to these wild, slanderous allegations? “If ICE truly believed in the veracity of the document it publicized so openly, it would have dispatched a HAZMAT (Hazardous Materials) team to the site at the time of the raid,” noted Washington attorney Nathan Lewin at the time.
Lewin added that following the raid, state and federal officials began speaking out against AgriProcessors “without any independent inquiry or due diligence.” The allegations dominated the headlines for a while, swiftly turning the tide of public opinion as elected officials railed against AgriProcessors.
Public Officials Rush To Judgment
Iowa Governor Culver utilized his position to slam AgriProcessors for taking “the low road”. He publicly outlined the stringent measures he would take against the plant, yet turned down an invitation to visit the plant for himself and develop an informed position.
A group of uninformed Jewish congressmen sent a critical letter to Aaron Rubashkin, which echoed many of the libels circulated by PETA (an extremist animal-rights group) and the UFCW (labor union known for its strong-arm tactics). Then-Senator Barack Obama even threw in a few barbs against AgriProcessors while campaigning!
Who was behind all of these wild allegations and the pressure brought to bear on public officials? To many, they seemed to carry the fingerprints of the anti-Agri ‘cabal,’ consisting of the PETA people, Union officials, and left-wing Jewish groups.
The reaction was catastrophic. The liberal Jewish media churned out story after story of abuse and negligence by AgriProcessors. The JTA ran an almost daily update. Many liberal Jewish journalists showed up in Postville hoping go obtain incriminating information for their columns. They even went into the local church and took quotes from hostile spokesmen.
The decline of AgriProcessors had been set in motion.
Connecting The Dots
Nathan Lewin, who at one time represented AgriProcessors, traces the demonization of the meat-packing plant and particularly of Sholom Mordechai Rubashkin to events of five years ago when PETA sneaked one of their agents into the plant. The agent took a secret video of cows being slaughtered after which the animal-rights group released the video, claiming it showed the abuse of animals.
The USDA, which monitors the plant and has a team of more than 20 inspectors continaully on site, never closed the plant for even one hour and never corroborated the video. Rabbanim and poskim verified that shechitah procedures were being followed exactly according to Torah law.
Indpendent audits of the company conducting exhaustive reviews, reported no instances of inhumane slaughter, and gave AgriProcessors high marks for both its handling of livestock and its slaughtering procedures.
Anti-Shechitah Group Gains Momentum
Yet PETA was relentless. Their agenda to put an end to shechitah in the United States received a boost when their aggressive smear campaign against AgriProcessors won the alliance of the United Food and Commercial Workers Union (UFCW), a powerful labor union known for forcing businesses into submission, as well as the Forward newspaper.
Joining forces, these elements wielded formidable influence in both the public and political arena, and succeeded in demonizing AgriProcessors and its management.
The Union was determined to make Agri “pay” for refusing to unionize, and their tactics extended even to Jewish communities in Boro Park and Flatbush, who received automated phone calls slandering Agri’s products. The Forward began a series of articles, many of which were filled with misrepresentations, lies, and false statements against Rubashkin.
The net effect of the smear campaign was predictable, culminating in the almost universal vilification of an innocent man. Under its steady exposure, support eroded for Rubashkin and AgriProessors, even in the Orthodox Jewish community.
As a result, Rubashkin was convicted in the courtroom of public opinion long before he had his day in court this past month. Most dishearteningly, the prosecution’s campaign to portray him as the mastermind of a massive fraud scheme—based on empty allegations and insinuations—has made inroads in the Orthodox community.
Comments from intelligent people reveal a breathtaking lack of information about the case, and worse—a lack of sufficient interest and motivation to probe beneath the media hype for the truth. Hearing about “fake invoices” allegedly approved by Rubashkin has propelled people to snap judgments, casting an honest man as a swindler.
Bank Fraud Charge Doesn’t Stand Up
As attorney Nathan Lewin points out, even assuming the charge to be true, “the creation of fake invoices is not a criminal offense unless the invoices are used to defraud someone.” And prosecutors failed to prove that the bank—or anyone else—was defrauded.
“The bank was not defrauded because it really did not care what the invoices showed and could readily have discovered the truth,” Lewin explained in correspondence with Yated. “Thus, no crime was committed. At best it may have been a technical offense that did not warrant the massive charges brought against Sholom Rubashkin.”
Lewin said he believes “a neutral and fair federal prosecutor –not blinded by the prospect of enormous publicity for going after a high-profile target—would never have brought Rubashkin to federal court on bank fraud charges.”
Yet prosecutors in this case did so, and were successful in dressing up minor offenses as bank fraud, he said.
Punishment ‘Staggeringly Disproportionate’
“Sholom Rubashkin has been given a raw deal,” concurred the OU’s Rabbi Menachem Genack. “The excessive prosecution of this man is staggeringly disproportionate to his mistakes. Genack noted that Rubashkin “maintains his innocence of bank fraud charges, and indeed, anyone who had dealings with him can vouch for his integrity.”
He added said that in his own visits to the plant, he never saw the slightest “cutting of corners in either halacha or ethical conduct. USDA inspectors were in the plant at all times, and they never reported a violation of any kind,” he noted.
“Few media outlets described the extraordinarily good side to this man, his generosity and kind-heartedness toward everyone, Jew and non-Jew,” Genack said. “The Yated is an outstanding exception and deserves tremendous credit for rallying behind Sholom Mordechai.”
Genack believes that “whatever lapses may have occurred under duress when he was scrambling to save his company, do not warrant the kind of excessive prosecution and lifelong punishment that should be reserved for hard-core criminals.”
“This was a man who—unlike a notorious all-time swindler people like to compare him with—lived modestly, was kind and trustworthy, never fleeced a single customer. Even after the raid, under impossible pressures, he kept his payments to the bank coming punctually. To keep his commitments, he and his family mortgaged everything they owned. “If anyone is deserving of sympathy, support and leniency, it is Sholom Rubahskin.”
This article is published in this weekend’s Yated Ne’eman