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April 26, 2010

"More Former AGs Question Sentence Sought in Bank Fraud Case"

The title of this post is the headline of this new item over at The Blog of Legal Times, which is reporting on some of the latest news involving a high-profile upcoming sentencing. Here are some of the details:

More former Department of Justice officials are voicing concern over the potential life sentence facing Sholom Rubashkin, the kosher slaughterhouse manager in Iowa whose sentencing on federal bank fraud and money laundering charges is set for this week.

On April 21, former attorneys general Nicholas Katzenbach and Edwin Meese III submitted a letter to Chief Judge Linda Reade of the U.S. District Court for the Northern District of Iowa that expressed concern about the guideline sentence proposed in the Rubashkin case. Former Deputy Attorney General Larry Thompson, who is now general counsel at PepsiCo Inc., and eight former U.S. attorneys also signed the letter. Click here for a copy.

Nathan Lewin, a lawyer for Rubashkin, said today that several more former DOJ officials —including former attorneys general William Barr, Janet Reno and Richard Thornburgh — have signed the letter submitted to Reade.  Former Deputy Attorney General Jamie Gorelick and former Solicitor General Seth Waxman are also signatories, said Lewin of Washington's Lewin & Lewin.  Gorelick and Waxman are partners in the Washington office of Wilmer Cutler Pickering Hale and Dorr. Thornburgh is of counsel in the Washington office of K&L Gates, and Barr serves on the Time Warner board of directors.

Rubashkin was convicted in November on 86 financial crime and related counts for his role in a scheme to defraud a bank that provided a $35 million line of credit to the Rubashkin family-owned Agriprocessors Inc., a kosher slaughterhouse in Postville, Iowa.  At trial, Rubashkin, 51, admitted making mistakes regarding the loan; he denied any criminal wrongdoing. He has been jailed pending sentencing.

The lead prosecutor, Assistant U.S. Attorney Peter Deegan Jr., who called Rubashkin's fraud "extraordinary," noted in the government’s sentencing memo that Rubashkin faces a potential life sentence. Rubashkin’s lawyers argue that the guideline should not be followed. The attorneys say a six-year prison term, at most, is just punishment. A two-day sentencing hearing is set to begin April 28 in Reade’s courtroom.

The court has received more than a thousand letters and e-mails that support leniency for Rubashkin.

I have not recently blogged about the sentencing debate swirling around Sholom Rubashkin, in part because I was asked earlier this month to play a small role in aid to Mr. Rubashkin's defense team.  Specifically, and in the interest in full disclosure, I had a hand in helping to draft the above-referenced letter to Chief Judge Linda Reade that has now been signed by many former US Attorneys General and former senior Justice Department official.  The full letter with the names of the signors can be downloaded here: Download Former AGs letter about Rubashkin sentencing 

As evidenced by the post at The BLT and by this new ABC News story, it seems that this letter is further raising the profile of a sentencing that is already getting plenty of attention from lots of different folks.

April 26, 2010 at 07:10 PM | Permalink

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Comments

A "modest number of years" for stealing $25m+? These commentators never tell us the correct number for a sentence here. Curious.

How having ten children, one of whom's autistic, and doing "charitable work" makes up for stealing $25m, I'll never know.

Posted by: Mark | Apr 27, 2010 9:05:18 AM

Mark --

The whole idea of modern day sentencing is to portray the swindler as the victim. That beach house he bought was a real burden, I tell you. Same with the sailboat.

Posted by: Bill Otis | Apr 27, 2010 9:27:08 AM

I am a federal criminal defense attorney who has had several clients sentenced by Judge Reade. Unfortunately for Rubashkin, Judge Reade rarely varies from the Guidelines and almost never downwards. That is not to say, however, that the Government's position on all of the sentencing enhancements it is claiming is right. Having reviewed the sentencing memos and based on my general familiarity with the case and experience with Judge Reade, I think it likely that he will get 20-25 years.

Posted by: Iowa Attorney | Apr 27, 2010 10:33:27 AM

Iowa Attorney, I totally agree with you..In fact she agrees with the guidelines so much, I've seen her ask USAtty what his thoughts are and he would give a downward descend with his head, indicating he agrees.
She rarely, if ever varies down from the guidelines.....May as well have a robot rubber stamp the PSR right from the probation officers fingers... Kind of like a tag team, USAtty and Judge...

Posted by: Goodyr | Apr 27, 2010 11:17:22 AM

But many here have said that the guidelines are advisory! Some judges continue to blindly follow the guidelines!? Say it ain't so!

Posted by: KRG def attny | Apr 27, 2010 12:29:05 PM

With all due respect to the illustrious former DOJ officials who signed the letter, including those who are said to have added their names later (many of whom I either worked for or went to school with), how in the world can they know that Mr. Rubashkin's case is "unique" if they "have not undertaken any independent effort to ascertain the accuracy of the factual statements made by the parties." More to the point, I'd like to ask Mr. Lewin how I can get these worthies to write a letter about the "appropriate principles of sentencing" as applied to some of my pro bono crack clients.

Posted by: margy | Apr 27, 2010 2:09:12 PM

Mark--

It's the wealth discount. Implicit in the Guidelines is a six-point reduction for offender characteristics if the offender is wealthy, and an eight-point reduction if the offender is a celebrity. These same implicit reductions are also present in nearly all state sentencing guidelines.

This is why, for example, a girl who kills her boyfriend in a car wreck after being intoxicated underage is permitted to travel to Florida during the pendency of her case ("don't leave the jurisdiction"...ha!), and then posts intoxicated pictures of herself while there, receives six months. It also explains why Andrew Sullivan was not charged with marijuana possession--the prosecutor knew that the fame reduction would have made prosecution pointless, since the best he could do was probation anyways.

Posted by: Res ipsa | Apr 27, 2010 2:09:56 PM

Too bad the former DOJ luminaries don't pool their clout to call for drastic reductions in guideline sentences across the board.

Funny how nobody seems to notice or care how mindlessly harsh the punishments are until someone they care about is about to be crushed by them.

Posted by: John K | Apr 27, 2010 4:42:39 PM

KRG --

"But many here have said that the guidelines are advisory! Some judges continue to blindly follow the guidelines!? Say it ain't so!"

It ain't so. Let it not be said that I refuse to cooperate.

1. If you want to find out if the Guidelines are advisory, read the Supreme Court's opinion in Kimbrough. It was not written by anyone here.

2. To follow the guidelines often is not to follow them blindly. Simply because YOU think they're harsh doesn't require every disctrict judge to agree with you. Some judges typically follow them becasue they agree with them. Imagine that.

Beyond that, the guidelines were written to follow the ordinary, pre-existing sentencing practices of judges. That is why they occupy the heartland. That judges usually go along with the guidelines is therefore hardly a revelation; indeed, it's only a truism.

Posted by: Bill Otis | Apr 27, 2010 6:38:36 PM

Bill writes: "To follow the guidelines often is not to follow them blindly. Simply because YOU (KRG) think they're harsh doesn't require every district judge to agree with you."

Bill, pretty much the rest of the civilized world thinks they're overly harsh.

Four recent scholarly books struggle (unsuccessfully by my reckoning) to explain why America's justice system is as harsh as it is:

"Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe," James Q. Whitman

"Thinking About Crime; Sense and Sensibility in American Penal Culture," Michael Tonry

"Thinking About Crime," James Q Wilson

Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Studies in Crime and Public Policy)," Jonathan Simon.

Or consider this quote from Victoria Toensing, one of the wing-nut authoritarian conservatives who helped contrive American's draconian sentencing guidelines: "I was present at the creation of those guidelines. May God forgive me for ever supporting them."

Posted by: John K | Apr 28, 2010 1:00:32 AM

John K --

"... pretty much the rest of the civilized world thinks [the guidelines are] overly harsh."

1. The huge majority of the civilized world has never heard of the guidelines.

2. Among those who have, one must include Congress. In the more than 20 years since the guidelines became operational, how many times has Congress, under either party, demanded that even one guideline be lowered?

3. Instead, Congress has, in addition to the guidelines, created mandatory minimum sentencing, which is both harsher and less flexible than the guidelines.

4. The majority of THIS BOARD thinks the guidelines are too harsh, that's for sure. That's becasue the majority of this board is either in or aligned with the Excuse Factory. But it's a mistake to confuse that with the American public, which has different attitudes.

Posted by: Bill Otis | Apr 28, 2010 2:46:36 PM

It is a sad day when the would be Chrismas Day bomber is receiving more civil rights from the Attorney General than Rubashkin. If you examine the facts you will note that the recommendations for Rubashkin are equivalent as if he had committed murder. If you examine the facts, the so called defrauded bankd actually made 21 million dollars on the revolving line of credit for purchasing large number of cattle. The justice department needs to justify the cost for the use of hundreds of federal agents and black hawk helicopters for an ICE bust- expecially given the fact that the illegal worker charges were dropped. This is why many non lawyer citizens find the legal system pathetic.

Posted by: FBM | Apr 28, 2010 3:48:18 PM

sorry for the typos

Posted by: FBM | Apr 28, 2010 3:49:39 PM

Bill writes: "In the more than 20 years since the guidelines became operational, how many times has Congress, under either party, demanded that even one guideline be lowered?

Congress? Maybe not.

But I'll go you one better. In commuting Scooter Libby's sentence, President W said: "I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison."

Posted by: John K | Apr 28, 2010 9:38:10 PM

John K --

To conclude that a particular guidelines sentence is overly harsh in one case is scarcely to conclude that the guidelines as a whole are too harsh. Still less does it provide support for your claim that "... pretty much the rest of the civilized world thinks [the guidelines are] overly harsh."

When I was a federal prosecutor, I often thought a below-guidelines sentence (usually for cooperation) was warranted. I would then support a motion for such a sentence.

The difference between us is that I take the cases one at a time, and you have a one-size-fits-all, ideologically driven notion that sentences are too harsh, period.

Posted by: Bill Otis | Apr 28, 2010 10:44:00 PM

"Nathan Lewin, a lawyer for Rubashkin, said today that several more former DOJ officials —including former attorneys general William Barr, Janet Reno and Richard Thornburgh — have signed the letter submitted to Reade. Former Deputy Attorney General Jamie Gorelick and former Solicitor General Seth Waxman are also signatories, said Lewin of Washington's Lewin & Lewin. Gorelick and Waxman are partners in the Washington office of Wilmer Cutler Pickering Hale and Dorr. Thornburgh is of counsel in the Washington office of K&L Gates, and Barr serves on the Time Warner board of directors."

Judge should call these clowns before him and inquire why they wrote. If the answer is anything other than I am suffering from a debilitating brain disease, they should be jailed. Most were disgraces at the DOJ and they continue to be, only now more laughable than ever.

Posted by: Steven M Harris | Jun 24, 2010 7:52:35 AM

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