ANALYSIS: Government Response to Rubashkin Raises Eyebrows

Sholom Rubashkin reads through evidence during his trial on state child labor charges on Friday, May 14, 2010 at the Black Hawk County Courthouse in Waterloo, Iowa. Rubashkin faces 83 counts of child labor violations stemming from a May 2008 immigration raid at the Agriprocessors Inc. kosher meatpacking plant in Postville. (AP Photo/ Andrea Melendez, Pool)
Sholom Rubashkin reads through evidence during his trial. (AP Photo/ Andrea Melendez, Pool)

Seemingly oblivious to the mounting calls from across the legal spectrum for the government to address what is widely seen as prosecutorial misconduct in the saga of Sholom Rubashkin, the U.S. Attorney for the Northern District of Iowa filed a lengthy and sharply worded response on Thursday to the merits brief submitted in March by Rubashkin’s attorneys.

In their merits brief, the Rubashkin legal team, headed by Gary Apfel, an attorney in Los Angeles, and Stephen Locher, an attorney in Des Moines, Iowa, submitted what it described in court papers as overwhelming evidence that the prosecutors wrongfully interfered in the Agriprocessors bankruptcy proceedings, intimidating potential buyers and thereby substantially decreasing the ultimate sale price. In addition, they charged that, at Rubashkin’s sentencing, the prosecutors knowingly presented false testimony to conceal the impact their actions had on the loss incurred by the victim bank – thereby misleading the judge into laying the blame on Rubashkin and sentencing him to 27 years in prison.

In the 112-page filing, the government repeatedly insists that Rubashkin’s request for a new sentence should be denied, as should his requests for discovery or an evidentiary hearing.

A legal observer who has followed the Rubashkin case for many years but is not affiliated with his defense team told Hamodia, “I have seen my share of strongly worded legal briefs over the years, but this is unusual. They are clearly very much on the defensive.

“What is telling about the government’s response isn’t as much what they say, but what they don’t say,” says the legal observer, who read the entire brief and spoke on condition of anonymity because of the sensitivity of the case. “The government doesn’t even address, let alone refute, many of the new pieces of evidence. Nor do they really respond to the crux of the argument made by Rubashkin’s lawyers.”

One of the most powerful arguments made by Rubashkin is regarding the testimony of Ms. Paula Roby, an attorney who represented Joseph Sarachek, the Trustee appointed by the Bankruptcy court to oversee the sale of Agriprocessors, the company that Sholom Rubashkin helped run.

At the sentencing hearing, Ms. Roby testified that she was unaware of any prohibition on the involvement of Rubashkins in the new entity, that any rumors regarding a prohibition on Rubashkins were “very unreliable,” and that Trustee Sarachek “worked very, very hard to dispel any rumors that were in the community [regarding a ‘No Rubashkin’ rule].” She also claimed that the prosecutors’ use of forfeiture ultimately had no impact on the bankruptcy sale process, and claimed not to know the government’s position on certain matters relating to Rubashkin family involvement in the new entity.

In the sentencing memorandum, the Judge declared that “the court credits Roby’s testimony and discredits testimony from Defendant’s witnesses.”

In the merits brief, Rubashkin’s attorneys submitted handwritten notes taken by James Reiland, another attorney representing Bankruptcy Trustee Joseph Sarachek, at a December 5, 2008, meeting between representatives of Sarachek and the U.S. attorney’s office. In addition to Reiland and his partner Julian Solotorovsky (a former Federal Prosecutor himself) — both of whom gave affidavits confirming the accuracy of these notes — Ms. Roby (who was their co-counsel for the bankruptcy trustee) was present and actively participated in the meeting.

According to the notes, Assistant U.S. Attorney Richard Murphy said, in unmistakable terms, “No Rubashkins is very important to us — non-negotiable.”

Roby was literally the next person to speak after Murphy pronounced the “No Rubashkin” rule and asked whether there were “any other non-negotiables,” to which Murphy responded, again, that there could be “No involvement of Rubashkins from any standpoint.”

In their response, the government first insists that “Roby’s testimony was accurate,” claiming that she was “drawing an important distinction between Aaron Rubashkin serving as an advisor for a new company as opposed to obtaining ownership.”

This would seem to indicate that the government is still claiming that – contrary to overwhelming evidence, including the handwritten notes of the December 2008 meeting, and a powerful affidavit from Joseph Sarachek, the Bankruptcy Trustee supporting Rubashkin’s position, as well as a long list of other supporting affidavits from would be purchaser and others – that it didn’t have a no-Rubashkin edict “from any standpoint.”

In his affidavit, which is included in the merits brief, Saratchek makes it clear that not only was he not “working on dispelling” the rumors of a no-Rubashkin edict, he was actually informing would-be purchasers of the government demand.

“Several potential buyers who appeared to be well-capitalized and had the wherewithal to purchase the business, including, among others, Meyer Eichler and Abraham Shaulson, expressed interest in having an ongoing relationship with the Rubashkins if they purchased the company. However, at the govemment’s direction, I disclosed to Eichler, Shaulson, and others that members of the Rubashkin family could not be involved in buying or managing the Company,” he wrote.

He added that the “government’s assertion of forfeiture claims and restriction on the involvement of members of the Rubashkin family clearly had a chilling effect on the Agriprocessors’ bankruptcy sale process and resulted in the Company selling for a lower amount than it otherwise would have.”

In their reply, the government also seeks to blame Rubashkin’s previous attorneys for Roby’s replies.

“[Rubashkin’s] counsel’s repeated use of broad terms such as ‘involved with’ and ‘associate with’ led to answers that appropriately reflected the breadth of the questions. To the extent such questioning yielded imprecise answers, it was no fault of Roby’s….”

The government repeats this claim a little later in their reply, and then proceeds to hold Rubashkin responsible for correcting Roby.

”Given the hopeless imprecision of the questions asked, Roby’s answers can be deemed neither false nor pertinent to the questions at issue. Alternatively, even if [Rubashkin] were able to establish Roby’s testimony was inaccurate or even intentionally false, there is no evidence the government was aware any testimony was materially false such that it had a duty to provide some manner of correction….”

“This argument, to say the least, is downright bizarre,” says the legal observer. “The defense clearly tried to dispute Roby’s testimony, they just didn’t have all the proof back then that they now do. The government, on the other hand, certainly knew that that Roby was giving misleading testimony – as it was the U.S. Attorney’s office who were behind the ‘No Rubashkin’ edict in the first place.”

In their response, the government alleges that Mr. Rubashkin “shamelessly omits dispositive facts – and furtively relies upon documentary evidence without telling the Court the government disclosed the evidence … in advance of sentencing.”

“This is a typical example of the pot calling the kettle black,” says the legal observer. “The government is in fact closing its eyes, refusing to even acknowledge the reams of new evidence that the defense was able to obtain on its own – that should have been provided by the government – and then accusing the Rubashkin lawyers of omitting evidence. In reality, what they refer to as ‘dispositive facts’ don’t even directly relate to the arguments made in the merits brief.

The prosecutor also seeks to stymie the Rubashkin legal effort on an array of technical grounds, asserting that either Rubashkin has previously made these basic arguments (even if he didn’t previously have all the evidence to prove it) or that it was the fault of Rubashkin’s attorneys at the time of the sentencing that he was unable to get a hold of the evidence earlier.

“Basically, what they are trying to say is that even if Sholom Rubashkin shouldn’t have gotten a 27-year sentence in the first place, he should stay in jail anyway, because it was his fault that he couldn’t prove the prosecutorial misconduct at the time,” the legal observor said.

The government response came amid an outpouring of support for Rubashkin from across the legal spectrum. More than one hundred leading American legal experts signed a letter calling on the U.S. Attorney of the Northern District of Iowa to “act to address new troubling evidence of prosecutorial misconduct that has emerged in connection with the prosecution and sentencing of Sholom Rubashkin.”

Rubashkin now has 30 days to respond to the government’s brief. His attorneys have declined to comment on the case.