) - On February 22, 2007, ICE raided
63 locations in 17 states of a national janitorial service that provided cleaning crews for restaurants.
Almost all RCI janitorial employees were illegal immigrants who had no documentation whatever,
and they were paid in cash. The owners, Richard M. Rosenbaum, Edward Scott Cunningham, and
Christina A. Flocken were charged not only with immigration-law violations, but also with defrauding
the United States of more than $18 million in federal employment taxes. On March 4, 2008,
Rosenbaum was sentenced to 10 years imprisonment, Cunningham to 51 months, and Flocken to
30 months.
The cases described above are typical. No case following an ICE raid has even come
remotely close to the draconian threats and punishments imposed on Mr. Rubashkin.
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3. Were Post-Raid Publicized Arrests and Imprisonment of Rubashkin Warranted?
Following the nationally publicized Agri raid, the Iowa federal prosecutors conducted an
investigation of Agri. The sworn complaint on which the raid was based had acknowledged that Agri
had screened job applicants and had, in fact, twice rejected an ICE undercover agent who tried to
gain employment with false identity papers. Only when ICE provided him with authentic
documentation was he hired. Rubashkin denied that he had knowingly violated the immigration laws
and Agri retained Robert Kent to discuss the charges with the prosecutors. The prosecutors made
arrests and filed immigration-law charges against various company employees. Most of these steps
were accompanied by substantial local and national publicity. Counsel forAgri and Rubashkin was in
regular communication with the prosecutors to attempt a resolution of potential criminal charges
against Agri and Rubashkin.
Although he was served with a letter identifying him as a larger of the investigation,
Rubashkin himself remained in his Postville, Iowa, home during the almost six months following the
raid. He made one trip to Canada to visit a sick friend and returned promptly to Postville. There is
not a scintilla of evidence that he made any effort to flee.
It was clear that Rubashkin would surrender voluntarily if notified of any charges, but the
local prosecutors had him arrested without advance warning, to the accompaniment of great
publicity, on October 30, 2008. Page A14 of The New York Times of October 31, 2008, for
example, had a story headlined "Arrest Made in Iowa Plant Case" and a photograph - coverage that
would not have appeared had counsel been requested, as is customary in such cases, to bring in his
client to answer charges.
An indictment charging one violation of the immigration laws was returned. At Rubashkin's
bail hearing on the indictment, the prosecutors and the Magistrate Judge permitted him to be
released on a $1 million bond and with an ankle bracelet and electronic monitoring. Individual
employers charged in all other immigration-law prosecutions have been released either on personal
recognizance or on the submission of a nominal bond. No other employer accused of violating the
immigration laws has ever been restricted with an electronic bracelet or required to post a bond of
$1 million.
On the day following his release, the Iowa prosecutors had Rubashkin arrested again on an
allegation that he had committed bank fraud after his first arrest. Their claim was that, in the routine
certifications that Agri made to the St. Louis bank with which it had a $35 million line of credit, it had
falsely represented that it was in compliance with the law when, in fact, it was harboring illegal
immigrants, and that Agri had failed to deposit all checks it received from customers in the "sweep
account" that was security for the bank loan and had temporarily used (but had subsequently
reimbursed) money for a store and school in Postville that Agri was administering.
Although there was no proof that the bank was actually misled by this conduct or that its
loan, on which timely interest payments continued to be made even after the raid, was imperiled in
any way, the Iowa prosecutors asserted that this conduct by Rubashkin constituted "non-
compliance" with the terms of Rubashkin's release on bail and asked that he be denied bail and
imprisoned.
Among other arguments for denying bail to Rubashkin, the prosecutors asserted that
Rubashkin could flee to Israel because he is Jewish, although there was no evidence whatever that
he had sought to travel to Israel. This same specious contention would justify the imprisonment of
any Jewish person ever arrested on any charge. In his opinion denying bail, the Magistrate Judge
accepted the Iowa prosecutors' claim regarding flight to Israel.
Rubashkin spent the next 76 days in prison. No other individual accused of an immigration-
law violation and no other non-violent and non-threatening person charged with nothing more than
having compromised the security of a bank loan that was otherwise being kept current has ever
been denied bail prior to trial on such a charge unless he was apprehended while actually
attempting to flee.
4. Why Were Seven Superseding Indictments Filed With Inflated Allegations and a
Forfeiture Demand?
After a hearing held in January 2009, the District Judge found insufficient evidence to keep
Rubashkin in prison as a "flight risk' and ordered his release pending trial. In the meantime, the
Iowa prosecutors had begun ballooning the immigration and bank-fraud charges with a series of
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superseding indictments.
The following is a list of the dates and number of counts of the superseding indictments:
First Indictment November 13, 2008 3 Counts Second Superseding Indictment November 20, 2008
12 Counts Third Superseding Indictment December 11. 2008 13 Counts Fourth Superseding
Indictment January 15, 2009 97 Counts Fifth Superseding Indictment March 31, 2009 79 Counts
Sixth Superseding Indictment May 14, 2009 142 Counts Seventh Superseding Indictment July 16,
2009 163 Counts
The basic charges of immigration-law violations and bank fraud remained the same
throughout this entire series of indictments. In the Third Superseding Indictment the prosecutors
added the request that the entire Agri business be forfeited to the United States. That demand - for
the forfeiture of an entire business because some of its employees were illegal immigrants - was not
made in any other case involving violation of the immigration laws.
The Fourth Superseding Indictment added the allegation under 7 U.S.C. § 195 that
Rubashkin had failed to make prompt payments to cattle owners in violation of an Agriculture
Department regulation because his payments were, on occasion, several days late. This was the
first time in the history of federal law enforcement that such a criminal charge has ever been made.
The number of charges was increased by the Iowa prosecutors not because any new
offenses were discovered. Rather, the basic bank fraud allegation was multiplied because each of
the bank's advances of funds to Agri under the $35 million line of credit and each month's report to
the bank by Agri was charged as a separate offense. Money laundering was also alleged to have
been committed when Rubashkin deposited some funds received from customers to the accounts of
a local kosher grocery store and religious school that Agri was maintaining in Postville.
The effect of this deliberate fragmentation of charges was that Rubashkin was ultimately
tried before a jury not on one basic charge of submitting false reports to the bank regarding the
security for the bank's loan, but on 91 counts of bank fraud, money laundering, and failure to pay
cattle dealers. The jury found him guilty on 86 counts.
5. Why Did Prosecutors Bring in Immigration-Law Violations at the Bank-Fraud Trial
Recognizing that the jury would be prejudiced against Rubashkin in considering the bank-
fraud allegations if it heard evidence regarding immigration-law violations, the District Judge
severed the trial of the 72 immigration violations in the Seventh Superseding Indictment from the 91
bank-fraud charges. Nonetheless, contending that he committed bank fraud when he represented to
the bank that Agri was complying with the law, the Iowa prosecutors presented more than two days
of highly inflammatory testimony regarding the immigration allegations during the bank-fraud trial.
The District Judge denied repeated defense requests for a mistrial.
6. Why Was Rubashkin Denied Release on Bail Pending Sentencing?
During the almost ten months between his pretrial release (after 76 days in prison),
Rubashkin complied punctiliously with all the bail conditions. His probation officer even testified that
on one occasion, when his electronic ankle bracelet became dislodged, "he alerted her immediately
to allow for its expedient repair." The District Judge found "that Defendant took great pains to
comply with the terms of his pretrial release."
Nonetheless, when the jury retumed a guilty verdict, Rubashkin was immediately remanded
to prison. In a hearing on the Iowa prosecutors' request that he be denied release pending
sentencing, the defense offered to post as security approximately $8 million in the equity of 43
supporters of Mr. Rubashkin and to pay for a 24-hour armed guard that would prevent him from
leaving his home without prior authorization. The District Judge granted the Iowa prosecutors'
request, and Rubashkin has now been in the Linn County Jail for more than 130 days, in addition to
the 76 days he spent in prison between November 2008 and January 2009.
The law regarding release pending sentencing (the Bail Reform Act of 1984, 18 U.S.C. §
3143(a)) does not authorize the pre-sentencing imprisonment of a defendant who is not a danger to
the community if he is not a "flight risk" and his future presence can be assured by any conditions of
release. The District Judge stated no reason for imprisoning him other than her unsupported
concluding statement that he is a "flight risk." The Court of Appeals denied bail also without stating
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any reason. These unexplained denials of bail violate the provision of the Bail Reform Act that
requires "a written statement of reasons for the detention? 18 U.S.C. § 1342(i)(1).
7. Why Is an Excessively Severe Prison Term Being Urged?
The jury found in a special interrogatory that Rubashkin did not profit personally from false
invoices presented to the lending bank. Evidence of his very modest lifestyle and his extraordinary
charity was proffered at his trial but objected to by the Iowa prosecutors and excluded by the District
Judge. He is the father of 10 children, including an autistic teenage boy who depends on him.
Nonetheless, the Iowa prosecutors are advocating for a LIFE SENTENCE.
Although they dismissed the 72 immigration-law counts after the jury's verdict on the bank-
fraud allegations, the Iowa prosecutors have submitted to the probation office more than 30 pages
of unproved inflammatory allegations regarding the employment of illegal workers at Agri. These
assertions - which Rubashkin has never had any opportunity to challenge and disprove - are
designed to prejudice the District Judge against Rubashkin and increase his sentence.
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