SUMMARY OF ARGUMENT
The foregoing history of this criminal prosecution demonstrates that, from beginning to end, the case against Sholom Rubashkin has been pursued by the federal prosecutors with unprecedented aggressiveness. To our knowledge, in no prior federal criminal prosecution based on immigration-law and bank-fraud allegations
(1) Has an accused charged with harboring illegal aliens been required to post a $1 million dollar bail and released only with an electronically monitored ankle bracelet;
(2) Has an accused been arrested on a charge that he committed bank fraud by signing a loan agreement that was allegedly false because of a violation of a “compliance-with-all-laws” provision;
(3) Has an accused been imprisoned for any time, much less 76 days, because he is Jewish and Israel has a “Law of Return;”
(4) Has an accused been subjected to seven superseding indictments;
(5) Has an accused been charged with a criminal violation of the Packers and Stockyards Act of 1921;
(6) Has a nonviolent first-time offender who misrepresented the value of collateral been sentenced to what is, effectively, life imprisonment; and
(7) Has an accused who made no attempt to flee while being investigated as a “target,” complied meticulously with all conditions of pretrial release, and offered conditions of release that would have made him a prisoner in his own home been denied release pending sentencing on the grounds that he is a flight risk.
With these appeals, Mr. Rubashkin is seeking from this Court the balance and proportion that a judge traditionally provides in adversary litigation. Whatever motives the prosecution may have had in pursuing him with such extraordinary zeal through arrests and indictments, the Appellant trusted that the open court process would result in a fair disposition of the accusations made against him and that in an open jury trial the prosecutors’ excesses would be fairly tempered by the presiding judge so that justice would prevail.
His experience in the Iowa state courts proved that this confidence was valid. State prosecutors filed 9,311 misdemeanor counts against him in State v. Rubashkin, District Court Allamakee County, Case No. SMCR009342, where he proceeded to trial before an impartial judge and a jury. He was acquitted on all the counts that remained after the state prosecutors voluntarily dismissed more than 99 percent of the charges.
In the federal trial that is the subject of these appeals the presiding judge made many questionable and prejudicial rulings. Appellant’s trial counsel objected to many rulings that appeared to tilt the federal trial against Mr. Rubashkin, culminating in the jury verdict and the startling prison sentence imposed by the judge.
There was no obvious reason for the judge’s apparent failure to act as the impartial arbiter contemplated by the federal criminal process – until many months after the federal trial. It was then discovered, from documents that the government had kept from the defense, that the trial judge had participated frequently, as early as six months before the raid, in meetings with prosecutors and law enforcement personnel who were planning the raid on Agriprocessors. One document even described the trial judge as a “stakeholder” in the raid. Neither she nor the prosecutors had disclosed the details of this collaboration and their off-the-record meetings to Mr. Rubashkin’s trial counsel.
This pre-raid association explains, we believe, why this case has lacked the balance and proportion that the federal judicial system expects federal district judges to provide in criminal trials. The offenses with which Mr. Rubashkin was charged – permitting illegal aliens to be employed at the meat-packing plant and overstating the value of the collateral for his bank loan in order to be able to take larger draws – did not call for the drastic measures and punishments that the prosecutors sought to administer to him. But it was simply human nature that a federal judge who so extensively participated in the planning of the raid – a judge whose commitment to the law enforcement goal was demonstrated by her repeated demand for a “final gameplan” on the raid – would be unable to exercise the restraining influence on the prosecutors with whom she had worked in the preparation and planning of the Agriprocessors raid in order to provide a fair trial to Sholom Rubashkin.
1. Appellant’s first ground for reversing the judgment of conviction addresses this fundamental flaw in the conduct of his trial. If this Court agrees that under 28 U.S.C. § 455(a) Judge Reade was disqualified from presiding at Mr. Rubashkin’s trial because of her meetings and off-the-record discussions with the prosecutors before the May 2008 raid – meetings that were not disclosed, as they should have been, to defense counsel – it need not reach any of the other major issues presented on these appeals.
The recusal mandated by Section 455(a) is required whether or not a judge is found to be subjectively biased in favor of, or against, one party in litigation. Cases of the Supreme Court and of this Court have held that the test is whether an “average person on the street” would “harbor doubts about the judge’s impartiality.” Judge Reade’s repeated meetings with prosecutors to discuss the impending raid raise such “doubts” because (1) they were ex parte meetings, (2) extrajudicial information may have been conveyed, (3) they created an appearance of “excessive coziness” between them, and (4) no disclosure of the meetings was made by the judge or the prosecutors.
Leading national authorities on judicial and legal ethics – the Chairman of the ABA Committee on revising the Code of Judicial Conduct and an N.Y.U. law professor – have declared that what was done in this case amounted to judicial and legal misconduct and was a violation of Section 455(a). And the judge’s own defense of her conduct in her order denying the motion for a new trial failed to respond to the facts stated in the ICE memoranda that refuted her assertion that she was only engaged in “logistical cooperation” in her discussions with the prosecutors.
Finally, if the evidence heretofore presented does not, in and of itself, warrant the grant of a new trial before a different judge, it at least requires that the motion be transferred for decision to another judge, that discovery be conducted, and that an evidentiary hearing be held.
2. Appellant’s second ground for reversal pertains to the permissibility of permitting lurid evidence of alleged harboring of illegal aliens to be introduced at Mr. Rubashkin’s bank-fraud trial. The trial judge correctly held that proof of immigration-law violations would “spill over” onto the charges of financial crimes and that the jury would be unable to segregate the charges if they were tried together. Nonetheless, almost three of ten trial days in which the prosecution’s evidence was presented were devoted to dramatic testimony regarding allegations violations of the immigration laws.
This error was aggravated when the trial judge denied the defense a full opportunity to rebut the immigration allegations by demonstrating that experts in immigration law had been retained and were even occupied in checking the authenticity of employees’ documentation when the raid occurred. In addition, the jury instruction regarding violation of the immigration laws made “spill over” even more likely by permitting the jury to conclude that Appellant had fraudulently denied violations of law when he only “recklessly disregarded” the presence of illegal aliens on Agriprocessors’ work force.
3. Appellant’s third ground for reversal of the conviction derives from the Supreme Court’s decision in United States v. Santos, 553 U.S. 507 (2008), which held that a transaction involving funds that are not “profits” of an illegal activity cannot, in circumstances like this case, violate the money laundering statute, 18 U.S.C. § 1956(a)(1). In an answer to special interrogatories, the jury said that the funds allegedly laundered “did not involve profits obtained from the commission of a specified unlawful activity.” This finding required the entry of a judgment of acquittal pursuant to the Supreme Court’s plurality opinion in the Santos case. And an application of the rationale of Justice Stevens’ concurrence in Santos requires acquittal on the facts of this case.
4. The outrageously severe sentence imposed on Mr. Rubashkin by Judge Reade must be reversed because the improper money laundering convictions added to Mr. Rubashkin’s offense level and because the trial judge failed to calculate “loss” correctly under the Sentencing Guidelines. Instead of determining precisely how large an extra draw Agriprocessors was able to take because of inflated invoices, the district judge accepted the proposition that the bank’s loss was the full unrecovered value of the loan. This result conflicts with decisions of this and other federal Courts of Appeals and with the rationale of the “loss” provision in the Sentencing Guidelines.
Judge Reade also erroneously ignored considerations that are prescribed by Section 3553(a). Appellant’s motive was not greed, he had a stellar history of good deeds and contributions to his community, and his presence at home is indispensable for the welfare of his 16-year-old autistic son. When viewed in the context of other federal sentences imposed on defendants who have committed similar offenses, it is clear that there is an enormous disparity between the sentence imposed on Sholom Rubashkin and sentences of other nonviolent white-collar offenders who did much greater harm to the public. Mr. Rubashkin’s sentence was thus both procedurally flawed and substantively unreasonable under Section 3553(a).
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