Photo Credit: Rabbi Hanoch Teller

Since sentencing is governed, in part, by the magnitude of loss, the government’s intervention in obstructing the sale of Agriprocessors would play heavily in the number of years to which the defendant was sentenced. The guidelines require that the court use either the amount of the “intended loss” or the “actual loss” – whichever is greater.

Calculating the actual loss within the formula provided by the sentencing guidelines, the government planned to ask the judge to impose a sentence of life in prison. Alas, this was too much for 75 law professors, 57 members of Congress, including six senators, former high-ranking Department of Justice officials, incluing six attorneys general, among them Ed Meese, Dick Thornburgh, and Ramsey Clark, FBI directors William Sessions and Louis Freeh, more than a dozen former United States attorneys, and one former solicitor general.

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The distinguished protestors wrote, “We cannot fathom how truly sound and sensible sentencing rules could call for a life sentence – or anything close to it – for Mr. Rubashkin, a 51-year-old, first-time, nonviolent offender whose case involves many mitigating factors and whose personal history and extraordinary family circumstances suggest that a sentence of a modest number of years could and would be more than sufficient to serve any and all applicable sentencing purposes.”

The government blinked and reduced its request to 25 years, while the defense asked for no more than six years.

Larry Thompson, a former deputy U.S. attorney general who signed the April 2010 letter decrying the sentence sought by the prosecution, reviewed the government’s threat to seize assets if the Rubashkin family was in any way involved with the new owners of Agri, and called it “an amazing admission of the prosecutors’ wrongdoing.”

He also pointed to a section of the prosecutors’ brief which acknowledges that defense attorneys were not given a December 9, 2008, letter from an attorney representing First Bank ahead of Rubashkin’s sentencing hearing. In the letter, the bank’s lawyer told prosecutors that First Bank feared a forfeiture threat would “chill” the bidding process.

That letter substantiates that even the bank – the main victim of the financial crimes – was opposed to the use of forfeiture by prosecutors. “That was exactly what Mr. Rubashkin was trying to prove at the sentencing hearing,” Thompson said, “yet the government did not disclose the letter from the victim confirming Mr. Rubashkin’s position. I cannot overemphasize how damaging the government’s failure to produce that letter was to Mr. Rubashkin’s case…. What else are prosecutors trying to hide?”

U.S. District Judge Linda Reade, on the other hand, discredited claims by the defense witnesses that prosecutors’ interference hurt the sale price.

The defense claimed that new evidence bolstered what they had been claiming all along. It is proof that “[t]he government knowingly presented false and misleading testimony and withheld exculpatory evidence.” Newly discovered handwritten notes by James Reiland, one of the bankruptcy trustee’s lawyers, from a 2008 meeting with prosecutors record Assistant U.S. Attorney Richard Murphy saying, “No Rubashkins is very important to us – non-negotiable.”

Assistant U.S. Attorney Peter Deegan was quoted in The Des Moines Register as saying, “Any actual loss attributable to the criminal alien harboring at Agriprocessors was a direct and foreseeable loss resulting from [Rubashkin’s] criminal conduct.” The prosecutor also pushed back against arguments from Rubashkin’s defense attorneys that Agriprocessors could have sold for millions more if prosecutors had not threatened to seize the company.

On June 22, 2010, Judge Linda Reade sentenced this first time, nonviolent, generous member of his community to 27 years in federal prison – two more than the prosecution had requested, for a commercial, victimless offense.

According to a 52-page memorandum which she released the day before sentencing, the judge imposed a 324-month prison term followed by five years of supervised release, and ordered Rubashkin to pay $18.5 million to First Bank Business Capital, the plant’s largest lender; $8.3 million to MB Financial Bank, another lender; and $3,800 to Waverly Sales, Inc., which received late payments from the plant for cattle. As has already been noted, prosecuting and fining for paying a cattle dealer after the sale date by invoking the 90-year-old Packers and Stockyards Act has never been done before.

It was clear to all that the trial was not about someone embezzling money for personal gain, or at the expense of others. Rubashkin leveraged everything he owned to save the family business and its employees, even mortgaging his house.

(To be continued)

May we all be inscribed for a good and sweet New Year.

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