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Yated Ne’eman

Earlier today a “Merits Brief” was filed in Sholom Mordechai Rubashkin’s 2255 proceeding. This brief is the culmination of almost three years of investigation during which Sholom’s lawyers obtained irrefutable evidence that (1) the prosecutors wrongfully interfered in the Agriprocessors bankruptcy intimidating potential buyers and thereby substantially decreasing the ultimate sale price and (2) at Sholom’s sentencing, the prosecutors knowingly put on 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 Sholom and sentencing him to 27 years in prison.

As the brief describes in detail, Sholom’s sentencing in connection with the federal prosecution for financial fraud depended on the amount of financial loss incurred by the victim bank which, in turn, depended on the purchase price offered and ultimately paid by prospective bidders in bankruptcy for the assets of Agriprocessors. The prosecutors threatened each prospective bidder with unjustified and unauthorized forfeiture against any prospective bidder who would use Sholom’s father, Aaron Rubashkin in a management, consulting or ownership capacity at Agriprocessors.

The effect of threatening this unauthorized forfeiture was to substantially reduce the purchase price and thereby create the loss incurred by the victim bank. Had the assets sold for $40 million (the size of an offer the bankruptcy trustee declined to accept because he thought it was too low), Sholom’s loss amount would have been $0. The resulting Sentencing Guidelines range would have been 30-37 months rather than the 27-year sentence Sholom is currently serving. Sholom has served more than 79 months as of this writing.

At sentencing Prosecutors presented false testimony from Paula Roby, an attorney representing the Agriprocessors bankruptcy trustee. She testified, under oath, that prosecutors did not prohibit Aaron Rubashkin from having a role in the business, or otherwise affect any prospective bidders or the bankruptcy sale price with the threat of criminal forfeiture. Ms. Roby said any suggestions to the contrary were based on unreliable rumors (“the grapevine can be a very unreliable thing”). The Judge accepted Roby’s testimony in her calculation of the loss attributable to Sholom.

The brief is chilling. This singular travesty of justice cries out more than ever for relief.

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