Rubashkin Launches Last Ditch Effort to Vacate Sentence

The so-called habeas corpus, or Rule 2255, petition, which blames the government’s botched sale of the former Agriprocessors Inc. for much of the bank’s losses, represents a final longshot legal maneuver to gain the freedom of Mr. Rubashkin, who turned 54 on Wednesday.

The case has galvanized Orthodox Jews across the world, who recall Mr. Rubashkin as dedicated to supplying kosher meat across the U.S. without regard to profit, and dozens of judicial heavyweights and former U.S.
attorneys general, who view his incarceration as an unfair application of the official sentencing guidelines.

The motion asks U.S. District Judge Linda Reade, who presided over Mr. Rubashkin’s original bank and related fraud trial in 2009, to vacate the verdict and sentence and retry it under a different judge. In the appeal, the attorneys underline the fact that they have new evidence, a necessity for Rule 2255 to be invoked.

Citing a backlog of other cases, Ms. Reade said Tuesday that she will “not [be] going to get to this for awhile.”

Paul Rosenberg, the Iowa attorney who filed the motion, told Hamodia in a telephone interview Wednesday that he expects the entire give-and-take to last for “a year or more” before Ms. Reade gives a final ruling.

Mr. Rosenberg added that if Ms. Reade rejects the motion, the Rubashkin team could appeal. However, as opposed to the appeal of the original verdict which the 8th circuit court of appeals was required to accept, there is no requirement to review a 2255 verdict.

The motion filed Monday focuses on the $27 million loss sustained by the First Bank of St. Louis from Agri’s alleged fraud. That loss was cited by Ms. Reade when she calculated Mr. Rubashkin’s lengthy sentence.

Mr. Rubashkin’s lawyers write in their filing that following the March 12, 2008, raid on the Postville, Iowa, plant and Agri’s ensuing bankruptcy, the court secretly forced on the government-appointed trustee a “No Rubashkin Edict,” meaning that no member of the Rubashkin family would be allowed into management in the post-sale of the company.

That resulted in the company’s sale for a drastically reduced rate, since new owners could not be brought up to date on Agri’s books without input from the previous owners.

Since the “No Rubashkin Edict” directly affected Mr. Rubashkin’s sentencing, the brief said, the government was required to turn over any documents they had on it. Their refusal to do so constitutes a violation of Mr. Rubashkin’s constitutional rights.

“Following trial,” the brief charges, “Mr. Rubashkin discovered … [that] the government repeatedly concealed from him, and presented affirmatively misleading testimony on the government’s direct, forceful interference in the bankruptcy sale of Agriprocessors, which caused a diminution in value of the sale and a corresponding increase in the length of Mr. Rubashkin’s sentence.”

Joseph Sarachek, the trustee, tried to sell the company to outside people but all deals fell through due to the covert court rules. It was eventually sold to its present owner for $8.5 million — a sum vastly less than the company’s true value, claims the brief. They cited an expert opinion that Agri could potentially have been sold for $26 million, reducing Mr. Rubashkin’s sentence by several years.

(In 2010, when rumors of the “No Rubashkin Edict” first surfaced, this writer asked Mr. Sarachek during a conversation if it was true. He abruptly said that he was driving with his daughter and had to get off the phone, and asked if I could call back. Despite several attempts, he never picked up the phone for me again.)

The motion also renews its attack on Ms. Reade’s involvement in planning the 2008 raid, which caused the plant, once the nation’s largest kosher slaughterhouse, to shut down for several weeks, resulting in its bankruptcy.  It also accuses prosecutors for not providing the defense with evidence from witnesses who said that Mr. Rubashkin’s transferring of money between different accounts was routine cash management and not a sign of fraud.

Prior to the filing, prosecutors informed Ms. Reade about a meeting Mr. Rubashkin’s attorneys had years ago with several of his jurors as part of their preparation for the appeal.

On Tuesday, Iowa Supreme Court Justice David Wiggins and two other prominent Iowa lawyers were in court and ready to testify on behalf of Rubashkin attorney Guy Cook, the president of the Iowa State Bar Association, who says that he acted in good faith and with the court’s presumptive permission in meeting the jurors. Three jurors and an alternate agreed to speak with Cook’s firm about the case, and no one complained then.

But Ms. Reade declined to hear their testimony, saying she had already concluded all such contacts violated her court rules. She said she was declining to hold any individual in contempt of court, and barred the juror information from being used during any appeal, application for presidential pardon or any other proceeding on Mr. Rubashkin’s behalf. She also ordered anyone in possession of transcripts of the interviews to turn them over to the U.S. Attorney’s Office in Cedar Rapids and her chambers by next week.

Kansas City attorney James Wyrsch took responsibility for authorizing the investigators to interview jurors. He withdrew from the case Monday, throwing a monkey wrench into the filing. As a result, Mr. Rosenberg included in his petition to be allowed to “further develop the arguments” due to the “interruption.”

Mr. Rosenberg said he has not seen all of the juror interviews but does not believe any of them would have been particularly useful for Mr. Rubashkin, who is incarcerated in a medium-security prison in Otisville, N.Y.

Mr. Rosenberg said that contrary to media reports, the motion he filed on Monday is not that rare.

“Obviously once a person had a jury trial and the court has sentenced a person it’s difficult to get that undone,” Mr. Rosenberg said. “But I don’t look at percentages; I just don’t. It doesn’t mean anything to me anyway. I intend to win ‘em all.”

This article appeared in print on page 1 of the October 3rd, 2013 edition of Hamodia.