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hamodia.com

Attorneys for Sholom Mordechai Rubashkin filed a motion on Tuesday, responding to the government’s attempts to deny a necessary certificate of appealability, as they continue to wage a battle for justice in a saga that has appalled the Jewish community and earned condemnation from legal experts throughout the country.

The latest filing to the U.S. Court of Appeals for the 8th Circuit came after the U.S. Attorney’s office asked the appeals court to turn down Rubashkin’s request to be allowed to appeal a lower court’s ruling rejecting a petition seeking a new sentencing and evidentiary hearing.

In that filing, known as a 2255 petition, Rubashkin’s attorneys cited reams of new evidence indicating that the prosecutors wrongfully interfered in the Agriprocessors bankruptcy proceedings, intimidating potential buyers and thereby dramatically 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 Mr. Rubashkin and sentencing him to 27 years in prison.

Unlike most other legal proceedings, in order to appeal a decision regarding a 2255 petition, a “certificate of appealability” is needed. In her ruling, Judge Linda Reade — the same judge who issued Mr. Rubashkin’s lengthy sentence in the first place — took the very unusual step of denying Mr. Rubashkin the certificate of appealability — without even giving Rubashkin and his lawyers the opportunity to review her decision and make a request to her for the certificate.

In its filing, the government began by quoting assertions by Judge Reade attacking Mr. Rubashkin’s attorneys as going too far in the way they described the prosecutor’s actions.

In their reply, Mr. Rubashkin’s attorneys state that “Rubashkin and his undersigned counsel respectfully submit it does not exceed the boundaries of zealous advocacy or constitute “mudslinging” to argue the government violated his constitutional rights,” and then proceeded to list six specific government acts of government wrongdoing.

Among the facts cited is that the government used the “threat of forfeiture in an apparently-unprecedented way to dictate who could own and operate the successor entity to Agriprocessors rather than allowing a bankruptcy judge to make those determinations in accordance with the provisions of the Bankruptcy Code;” and failed to disclose to Rubashkin’s counsel complaints from the bank which suffered the primary loss when Agriprocessors collapsed as well as the complaints from bankruptcy trustee about the devastating effect of the government’s forfeiture position on the bankruptcy sale price even though this was a disputed issue at sentencing and had an enormous impact on Rubashkin’s Sentencing Guidelines range.

The latest Rubashkin brief furthermore points out that the prosecutors elicited false sentencing testimony from a witness that the use of forfeiture “did not” affect potential bidders, despite having withheld the bank’s and trustee’s statements to the contrary to those very prosecutors and witness; and failed to disclose the existence or substance of meetings in which prosecutors told the bankruptcy trustee and his counsel that “No Rubashkins is very important to us—non-negotiable” and there could be “no involvement of Rubashkins from any standpoint (control, benefit)” in the successor entity to Agriprocessors.

The brief continues by stating that the government allowed Ms. Paula Roby, the bankruptcy trustee’s counsel, to testify falsely that a “prohibition [on Rubashkins] was never leveled” and “there was none [No Rubashkin condition] to my knowledge” despite prosecutors’ earlier statements to the contrary, made directly to that witness. And that the government failed to correct the District Court’s erroneous ruling, reached on the basis of the trustee’s counsel’s testimony, that “there was no such condition attached to the sale of Agriprocessors.”

“Simply put, it is perfectly appropriate — and, in fact, ethically required — to accuse the government of wrongdoing when the facts point in that direction,” Mr. Rubashkin’s attorneys state.

In the newest brief, the attorneys also highlight the fact that “the government declines to discuss the glaring inconsistency between the District Court’s June 2010 sentencing ruling and January 2017 post-conviction review ruling.”

In June 2010, Judge Reade summarized Rubashkin’s evidence about the existence of a No Rubashkin condition in the bankruptcy process but then concluded: “Paula Roby testified that there was no such condition attached to the sale of Agriprocessors. The court credits Roby’s testimony and discredits testimony from Defendant’s witnesses.”

In the January 2017 ruling, however, the same judge stated: “The court did not discredit or credit any specific testimony of any witness… Rather than focus on the extent of the government’s restriction on the Rubashkins’ involvement, the court focused on whether the forfeiture position could have impacted the sales price of Agriprocessors’ assets. The Court credited Paula Roby’s opinion about the impact that the government’s forfeiture position had on potential bidders.

The government never argued below for the interpretation the District Court offered in January 2017, and the government’s decision not to try to justify that new interpretation in this appeal is all but an admission that it is indefensible. Simply put, a district court may not deny §2255 relief by changing the basis for its original decision, Rubashkin’s lawyers stress.

They also pointed out that in 2017, Judge Reade claimed that Roby’s testimony “favored [Rubashkin], or, at least, can be described as fairly neutral.” Yet in 2010, she clearly stated that the court “credited Roby’s testimony and discredited testimony from Defendant’s witnesses. Accordingly, the court declines to consider this [No Rubashkin] theory in arriving at an actual loss calculation.”

The attorneys also underscore, among other things, the inconsistency between Judge Reade’s June 2010 sentencing ruling and January 2017 post-conviction review ruling. This further illustrates why the judge should have recused herself from this case in the first place, and why her refusal to do so is in itself grounds for vacating the sentence.

“The concern underlying structural error analysis is that a judge who becomes part of the ‘prosecution team’ will not thereafter be able to remain impartial, no matter how pure his or her intentions,” Mr. Rubashkin’s attorneys argue.

The District Court’s §2255 ruling demonstrates the point.

The Court characterized arguments made in good faith as “mudslinging,” changed or disregarded its prior interpretation of the crucial testimony from Roby, and otherwise endeavored to protect the 27-year sentence imposed on Rubashkin from collateral attack, even to the point of denying a certificate of appealability despite having needed, collectively, more than 200 pages to decide Rubashkin’s recusal motion and Petition.

Rubashkin should be given the opportunity in full briefing to address whether the district judge became sufficiently close to the government during the investigation of his case to require recusal.

Readers are asked to please daven for Sholom Mordechai Halevi ben Rivkah.

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