Sholom M. Rubashkin, son of Agriprocessors founder A. Aaron Rubashkin, was found guilty in November 2009 on 86 charges of financial fraud and money laundering. His counsel had requested that he be released on bail pending formal sentencing on those charges; however, a panel of three judges from the St. Louis-based Appellate Court denied the motion late last week. An exact sentencing date for Rubashkin has not yet been set, but is anticipated to take place this spring.

Counsel for Rubashkin can continue to appeal the decision.

On Monday, former plant operations manager Brent Beebe admitted in a plea arrangement with federal prosecutors that he brokered deals between Rubashkin and undocumented workers, effectively providing the workers with falsified documents for a cost. The transaction of more than $4,000, according to court records, took place one week before a massive May 2008 immigration raid at the Postville facility.

Beebe remains free on bond, pending sentencing.

Since the raid several members of management at the plant have been probed by federal authorities, and many have been convicted of wrongdoing. The plant itself was sold through bankruptcy and now operates under new leadership as AgriStar. Some former members of plant management, including Rubashkin’s brother, Heshy Rubashkin, continue to provide services to the new plant owners, although the exact extent of their involvement remains unclear.

Due to the trial process, several undocumented workers were detained in Postville as possible key witnesses. Wearing ankle GPS tracking devices, some hoped only for deportation while others began their own legal battles to establish residency in the U.S. Just days following Christmas, most of those detainees were brought to Cedar Rapids where their ankle tracking devices were removed by court officials.

The Rubashkin family and friends, who have rallied around Sholom throughout the process, have hired a New York-based communications firm to represent the interests of an established defense fund. The company has reached out to members of the press and has began a presence on social networking sites.

Amid the excitement of a new decade, the unresolved issues of 2009 and other years past are becoming more irksome and in need of solutions.

The Road to Recovery … or Not

The entire country watched in June 2008 as flood waters savaged downtown Cedar Rapids. The videos and pictures of the Cedar River overtaking downtown structures, destroying businesses and displacing residents were simultaneously heartbreaking and striking. Yet for every headline garnered by Cedar Rapids, another smaller Iowa town was left to cope with its own slow and tedious recovery without the benefit of national news crews.

Veterans Memorial Coliseum is shown drenched by flood waters on June 11, 2008. (file photo: Lynda Waddington/The Iowa Independent)

State officials have argued that all that could be done was done. They tout Iowa’s swift recovery, comparing the progress here to natural disaster recovery in other parts of the country. Yet even now families remain displaced, businesses are shuttered and Iowans, long known as America’s most politically intense residents, are becoming more and more disenchanted with government as a whole.

The few times that national cameras panned away from downtown Cedar Rapids, national viewers glimpsed thousands of working family homes drenched to their rooftops. Urban viewers were enchanted by footage of cows, herded onto a Vinton resident’s deck for protection from flood waters. Large portions of the residential area in the small town of Creston were damaged as a result of basement and ground-level flooding. No one can forget the images of a leveled Parkersburg following a May 2008 tornado. Many of the aftermath stories remain on public display at the state’s I-JOBS page, and much remains unfunded.

But once it is understood that the working class — farmers, nurses, shift workers, teachers and others — bore the brunt of Iowa’s disasters, it is much more easy to understand the state’s following economic downturn. Working class Iowans pay a disproportionate share of their income in state and local taxes, according to research by the Iowa Fiscal Partnership. This means that the very economic foundation of the state has been rattled by tornadoes, pounded by flood waters and then mostly left with empty platitudes of progress to bolster its continued support.

Those set aside in favor of corporate bailouts and unable to surf the tides of promised change remain disillusioned, confused and, at times, angry. Their way of life has not only been threatened, but, in many instances, decimated. Their long-held beliefs in the value of hard work, helping neighbors and self-reliance have been shaken and, for some, shattered. They no longer relate to a government that appears uncaring, and they no longer believe in political parties that provide soundbites that would be offensive if they weren’t so tired and humorous.

Iowa politics in 2010, despite being the vehicle by which reform and recovery could happen, have been regulated by those outside of Des Moines’ affluent circles to an oddity or, worse yet, a distasteful fairgrounds freak show. For when economic reality becomes too horrible, it is sometimes easier to grasp the nearest unfathomable boogyman than to confront the true monster on your doorstep.

It is in front of this backdrop of dismay and disconnect that Iowa politics will play in 2010, and it will factor into every facet of the state.

The Right to Love and Marry

Several participants in April's Tea Party protest at the state capitol advocated for legislators to allow a vote on same-sex marriage (file photo).

In April, same-sex marriage was legalized in Iowa. As some state politicians rallied against the Iowa Supreme Court decision and others praised it, most Iowans quietly pointed to increased farm supply costs and skyrocketing health care payments.

But groups have galvanized on both sides of the issue and are preparing to continue the battles begun last year at the statehouse.

Same-sex marriage, depending on which group’s advisories you read, is either proof of society’s inevitable enlightenment or the complete downfall of all held dear. And while there are distinct minorities of Iowans on both sides of the issue who are ready to do whatever it takes to ensure that such marriages are the keystone of all action within the 2010 state legislature, many more residents are afraid that the battle over certain couples’ right to marry will overshadow the business that must take place if the state as a whole is to stand on firmer economic ground come summer.

But once your home has been washed away by flood waters, or blown apart by tornadoes, it is difficult to surmount a fight against another struggling family, traditional or non-traditional. By that same token, difficulties paying for needed prescriptions and sleepless nights worried about mortgage payments aren’t often precursors to a rising up against any perceived discrimination. It is hard to fight for anyone else, hard to stand on even preached moral principals, when the very ground beneath one’s feet remains the consistency of sand.

As a result, those who stand to lose the most by having the legislature dominated by political grandstanding on same-sex marriage could be the people who stay home, shaking their heads at a spectacle created and honed in 2010 election madness. Those who stand to gain the most — specifically, those who are paying more attention to November ballots than first quarter earnings statements — will be those who rejoice and revel in the folly.

Renewed Faith in Antitrust

Producing the nation’s food supply has always been a precarious occupation. Natural disasters, weather fluctuations and simple bad luck have historically plagued Iowa’s crop and livestock producers. It is part of the territory, and farmers have come to understand the roller coaster ride that often determines if their seasons will be profitable.

The past few years, however, a new unknown has emerged that many producers view as more threatening than those they’ve previously faced: Market concentration. Within each of the nation’s agricultural industries a few, large corporations have emerged that dominate the sector and, some producers have argued, use collusive and exclusionary tactics to drive independent and smaller operations out of business. The large corporations, on the other hand, argue that their market dominance and sheer size allow them to develop innovative techniques for smaller producers as well as lobby all farm interests before Congress.

While U.S. Supreme Court rulings and national policy have played a significant role in the changing landscape of America’s and Iowa’s agricultural sector, most producers believe the largest culprit to the woes they’re facing is lax government oversight of existing antitrust laws. And, in a move unprecedented in American history, federal agencies appear to be, if not actually siding with producers, at least willing to listen.

Throughout 2010, the U.S. departments of Justice and Agriculture will hold a series of workshops for discussions on possible anti-competitiveness in several key sectors — seed, poultry, dairy and other livestock. The first, which will focus on the seed industry, will take place in Ankeny this March. The workshops mark a significant change from “hands off” life under the George W. Bush administration, when the the U.S. Department of Justice oversaw and approved mergers between Smithfield Foods and Premium Standard Farms (2007) to create the country’s largest hog processor, between Dean Foods Co. and Suiza Foods Corp. (2002) to create the largest milk processor and between JBS and Smithfield Beef (2008) to make one of the nation’s largest cattle feeders.

The U.S. Justice Department, which appears to be making good on then-U.S. Sen. Barack Obama’s pledge for more scrutiny of American agriculture, has brought in Christine Varney, a woman who built a trust-busting reputation within the Clinton administration, to lead its antitrust division. This Justice Department, unlike all of its predecessors, isn’t sitting back and waiting on an anti-trust complaint. It is willfully and meticulously investigating possibilities before formal complaints arrive.

Exactly what this means to Iowa, which maintains critical economic interest in agriculture, remains unclear. Although Iowa has fared better than other states in supporting and maintaining family farms, and has recently found the benefit of promoting smaller organic operations, the state also has strong ties to the large corporations that have now fallen under scrutiny.

Immigrating to Jobs, Congress

Census figures estimate that roughly 450,000 people over the age of 65 live in Iowa, comprising about 15 percent of the state’s total population. By the year 2030, the percentage is expected to blossom to 22.5 percent of the state’s population, or more than 650,000 Iowans over the age of 65.

It is widely known that due to Iowa’s out-migration of younger (and often brighter) residents, as well as its traditionally slow birth and immigration rate, the state is poised to lose a U.S. congressional district following the 2010 census.

What is less discussed, however, is the fact that Iowa’s rural counties are aging more rapidly than urban areas. As of the 2000 census, individuals age 65 and over comprised 20 percent or more of the population in 30 of the state’s 99 counties. Not only are all the impacted counties from 2000 rural, but the U.S. Census Bureau believes that trend will encompass 88 of the state’s counties by 2030, affecting the most rural first. At that time Iowa is expected to be the 12th oldest state in the union.

The direct and indirect impacts to the state, the tax base, local workforces and wider rural geographic health are far too complex for adequate recount in this short discussion of interest areas for 2010 and the next decade. Just in the realm of ongoing federal health reform, for instance, the implications of Iowa communities with 40 percent or more of their populations over the age of 65 — Littleport, Elk Horn, Berkley, Athelstan and Beaconsfield during the 2000 census — makes it clear that providing insurance alone won’t be nearly enough. As The Iowa Independent has documented throughout 2009 in a series of articles on rural health, those residing in rural areas are more likely to be living at or below poverty levels, with more chronic conditions, without sufficient nursing and physician access and lacking critical infrastructure needed for advances in tele- or distance-medicine that might alleviate existing inadequacies.

The 11 Iowa counties projected to maintain a percentage of older residents below 20 percent in 2030 also tell a story. The population centers in Polk, Linn, Johnson, Black Hawk, Pottawattamie, Story, Woodbury and Dallas counties are included among them. The other three — Marshall, Muscatine and Wapello — are all considered rural counties with one big difference from the rest of the state’s other rural areas. Each is home to significant immigrant populations.

At the time of the 2000 census, 12.5 percent of the populations in Marshall, Muscatine and Wapello self-identified as being either Hispanic or Latino. The latest estimates for each of the counties now lists that population demographic at above 15 percent. While this percentage compared to other states would not be considered significant, it stands out in Iowa, a state with an overall estimated percentage of persons of Hispanic and Latino origin at roughly 4 percent.

Iowans, who continue to express both outrage and compassion in the aftermath of a massive immigration raid at a Postville meatpacking plant, are only now starting to come to terms with their desire for maintaining the status quo in rural areas and the true need for a larger and younger workforce. Stephen Bloom, a journalism professor at the University of Iowa and author of a book on Postville, spoke candidly with The Iowa Independent seven months after the raid, noting that the move of slaughterhouses out of cities and into rural areas as well as mechanical advancements in the process has changed the face of rural America.

“The industry now requires a revolving door of employees because the wages are, if not minimum, then very low,” Bloom said. “The locals in these rural pockets don’t want to work for that kind of salary. The plants have this voracious appetite for hiring more and more people because a slaughterhouse worker who works for a year at the same plant is working for an extraordinary amount of time. The turnover in a year is nearly 100 percent.”

Workforce challenges in rural areas, however, are not only limited to meatpacking plants and other large factories. Iowa’s stalwart economic industry, the one most closely associated with rural life, is also beginning to feel the crunch.

At a congressional listening post in October, Clinton County dairy farmer Ben Blanchard discussed both his operation’s need for long-term younger workers and the nation’s need for comprehensive immigration reform.

“The way I feel, and I know that others may not feel the same way, but there needs to be legislation to allow [immigrants} to come over and not just on a work permit or whatever for six months,” Blanchard said, noting that short-term immigration solutions do not allow for farm knowledge and animal consistency.

Juan Carlos Guerrero-Espinoza, 36, was sentenced to and is serving 36 months in federal prison. Two years of that sentence was a mandatory ruling for aggravated identity theft, according to court documents, and was a term of the plea deal he signed that allowed him to avoid deportation and for his wife and children to return to the U.S.  following his prison term. He entered into the plea agreement in late August 2008.

Roughly nine months later, on May 4, the U.S. Supreme Court ruled that many of the convictions and sentences given to immigrant detainees from the Postville raid were in error. According to the ruling, federal prosecutors inappropriately used aggravated identity theft laws to prosecute undocumented workers because the prosecution did not prove that the workers knowingly used identities that belonged to other individuals.

“As a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all subsequently listed elements of the crime,” wrote Justice Stephen G. Breyer in the decision.

Other Agriprocessors supervisors, despite being originally charged with aggravated identity theft, had charges removed by the prosecution following the U.S. Supreme Court ruling. In light of this, attorneys for Guerrero-Espinoza is requesting the court vacate or correct his sentence to reflect what has happened in the other cases and the decision by the Justices. If the request is granted, he could be freed after serving 19 months.

Court documents filed in August 2008 indicated that Guerrero-Espinoza “conspired with others, and aided and abetted his employer, in hiring more than 10 individuals” whom he knew to be undocumented and unable to legally work in the U.S. He was convicted, in part, due to a conversation he had with employees under his supervision on May 7, 2008. At that time Guerrero-Espinoza allegedly told workers he knew to be illegal immigrants that they were going to be terminated and then immediately rehired by Agriprocessors. While this testimony goes directly to the aiding and abetting illegal aliens charge, it does not speak directly to whether Guerrero-Espinoza was aware that the documents used to re-hire the workers stemmed from stolen identities.

Upon the federal conviction of Sholom Rubashkin, former Agriprocessors day-to-day manager, on numerous fraud-related charges, prosecutors have agreed not to seek a second trial on the immigration-related offenses that he faced. Without that trial, it is unlikely that much of the immigration-related evidence gathered at the Agriprocessors site following the 2008 raid, or much of the key witness testimony, will ever be publicly revealed.

Those honored were First Assistant U.S. Attorney Richard Murphy, paralegal specialist Brenda Nietert, Drug Enforcement Administration investigator Sarah Boblenz and newly-named U.S. Attorney for the Northern District of Iowa Stephanie Rose, who was an assistant U.S. Attorney during the investigations and prosecutions.

“These award recipients have been honored for their service and commitment to our country, as well as to their local communities,” said Attorney General Eric Holder. “each of these dedicated servants has carried out the important mission of the Department of Justice. Their accomplishments have advanced the interests of justice on behalf of the American people.”

Rose, Nietert and Boblenz each received an award for superior performance by a litigating team for their investigation and prosecution of the largest Internet pharmacy case in the department’s history. The case involved two Internet pharmacies responsible for the illegal distribution of millions of dosage units of controlled substances throughout the country. Their efforts led to 29 convictions of doctors and others in connection with the schemes and resulted in the forfeiture of more than $6.9 million.

Murphy received his award for superior performance in a managerial or supervisory role for his work as criminal chief and first assistant U.S. attorney. While he served as criminal chief, he was an active member of the department’s Criminal Chiefs Working Group,  and served as chairman during his last two years. He absorbed additional duties and was instrumental in responding to the June 2008 floods that closed the main local office for five months. He also helped to lead coordination efforts with numerous federal agencies in preparation for the execution of a May 2008 immigration enforcement operation at Agriprocessors in Postville.

Grassley was one of 12 Republican senators, and the lead signatory, on a letter sent to Janet Napolitano, secretary of the U.S. Department of Homeland Security. The letter came in response to comments made by Napolitano regarding the possibility of comprehensive immigration reform and what she perceived as positive economic impacts of a path to legalization for undocumented immigrants.

“With all due respect,” the letter reads, “legalizing those who have no legal right to be in the United States will not be a ‘boon’ to American workers. Rather it would only exacerbate the unfair competition American workers currently face as they struggle to find jobs. … Therefore, we strongly encourage you to cease any discussion about enacting a legalization program…”

For Iowans, who watched the economic decimation of Postville and the surrounding area following the massive May 2008 immigration raid at a local meatpacking plant, such assertions of displaced and disenfranchised American workers may fall flat. In fact, in a last ditch attempt to keep the company afloat, the owners hired staffing firms that ultimately resorted to importing homeless individuals from other states to fill vacancies — a situation that disrupted quality of life in the region, and still did not prevent the company’s ultimate bankruptcy.

Even if the Postville experience is removed from the equation, written off due to the “company store” mentality that had permeated life in the area, Iowans are also beginning to understand that the state’s agricultural sector is having growing pains of its own. As populations in rural areas continue to age, local farmers are looking to immigrant workers to meet the demands of production. A study, conducted by the Texas-based Perryman Group, concluded that if every undocumented worker was removed from the U.S., agriculture would be one of the nation’s hardest hit industries. The study estimates that more than $171 billion would be lost nationally and that a total of 476,277 jobs would disappear from the overall economy as a result of the losses.

The letter also takes exception with what it calls “diluted enforcement initiatives,” highlighting delays in requiring federal contractors to use the E-Verify system and changes in the 287(g) program, which permitted local law enforcement to pursue immigration enforcement efforts. (There are no active 287(g) programs in Iowa, although some local agencies have obtained immigration training outside the federal program.)

Perhaps most upsetting to proponents of comprehensive reform is the fact that U.S. Sen. Orrin Hatch, a Utah Republican, is one of the signatories. Hatch had previously broken with his party by becoming the original sponsor of the DREAM Act and his signature, perhaps more than any other, along with his assertion that the senators were taking “Napolitano to task” signals the next partisan show-down on the horizon.

Some Iowa cattle producers that sold livestock to the now-defunct Agriprocessors meatpacking operation in Postville have received an unexpected and unwanted piece of holiday mail from the federal bankruptcy court.

Court officials, in an effort to ensure that none of the company’s accounts payable received preferential treatment, have informed Iowa producers that they have 10 days from the date of the letter to repay 80 percent what the company paid them in the time period before it declared bankruptcy. If the letter is ignored or no answer provided, the court will move to recoup 100 percent of the Agriprocessors payments.

Tom Shipley, director of issues management and policy implementation for the Iowa Cattlemen’s Association, said that his organization has been in contact with roughly eight producers who received the letter, and that the government demands have ranged from $50,000 to $600,000.

“We simply don’t know exactly how many producers or sale barns might have received this letter, but we do want all who did receive it to contact our offices,” Shipley said by telephone Monday.

Attorneys for the ICA have been in contact with the U.S. bankruptcy court and believe they have worked out an extension from the existing Dec. 3 due date to Dec. 15.

The bankruptcy code permits a trustee to recover payments made to a creditor within the 90 day period preceding the bankruptcy petition. The policy behind the rule is to remedy a situation where the debtor gives preferred treatment to creditors just before filing, and allows that particular creditor to receive more on its claim than would have otherwise been received through bankruptcy proceedings.

“We believe that it is not preferential treatment or preferred payment for producers and sale barns to provide livestock to a meatpacking company,” he said.

The letters were sent to individuals and companies that received direct payment from the Agriprocessors kosher meatpacking plant in the 90 days prior to the company declaring bankruptcy, or roughly mid-August through mid-November of 2008. Those producers that used the Packers and Stockyards Act to receive their payment after the bankruptcy filing do not seem to be impacted.

The cattlemen will likely rely on one of two exceptions to the preference rule: Contemporaneous exchange or ordinary course of business. A payment that is made at the same time a product is provided is an example of a “contemporaneous exchange.” Payments for “ordinary course of business” depend on payment practices within the industry and previous payment practices between the creditor and debtor.

Matt M. Dummermuth

Matt Dummermuth, who was recommended for the post by U.S. Sen. Chuck Grassley, began serving as U.S. Attorney on Jan. 30, 2007. He succeeded Chuck Larson, Sr., who retired in December 2006, and Judy Whetstine, who served immediately following Larson’s departure, but soon also announced her own retirement.

“It has been a rewarding challenge to seek justice each day in each case for every defendant, every victim, and every member of the public,” Dummermuth said. “I’m grateful for the opportunity I’ve had to pursue justice and uphold the rule of law. It has been a wonderful privilege to serve and protect the people of Iowa.”

During his tenure as U.S. Attorney, Dummermuth, who is a native of Elgin, served on two national groups that advise the U.S. Attorney General — the Terrorism and National Security Subcommittee and the Child Exploitation Working Group of the Attorney General’s Advisory Committee. These subcommittees mirrored two initiatives within the Northern District Office that Dummermuth considered to be top priorities. He led an anti-terrorism effort within his office and closely coordinated with the Federal Bureau of Investigation and other law enforcement agencies. The office also enhanced information flow with, and provided international and domestic terrorism training to, law enforcement at all levels.

Dummermuth is also credited with implementing a strong prosecution and prevention strategy for child exploitation crimes. The office has charged and convicted record numbers of defendants for child pornography production, distribution and possession as well as for enticement and travel-related child exploitation crimes. In addition to obtaining lengthy sentences in many of the cases, including 100 years for one such individual, Dummermuth spearheaded two Internet safety initiatives, and often traveled himself to present safety information to area middle school students.

Although his office will be known for these and the traditional drug trafficking, firearm and other violent offenses that are the standard within all U.S. Attorney Offices, he will always be best known for his role in the prosecution of more than 300 immigrant workers from the Agriprocessors meatpacking plant in Postville. Dummermuth led the worksite enforcement prosecution effort following the arrest of 389 plant workers. Under his direction the office prosecuted 305 of the workers for immigration and identity theft-related charges within days of their detention in a highly controversial process that quickly became known as “fast-tracking.”

Nearly a year following the May 2008 raid in Postville and subsequent guilty pleas, the U.S. Supreme Court unanimously ruled that undocumented immigrants could not be charged with aggravated identity theft without proof that they had knowingly used another person’s documents. Although the decision did not address the situation that followed Postville, it did effectively end what many feared was becoming an unfair government tactic.

In addition to the immigrant workers, eight other management, administrative and supervisory employees at Agriprocessors — including the chief financial officer, controller, and human resources manager — pleaded guilty to bank fraud, harboring, or document fraud charges. Just earlier this month, a jury in South Dakota found Sholom Rubashkin, day-to-day manager at the plant and son of the company founder, guilty on 86 of a possible 91 charges ranging from fraud to money laundering.

Although Dummermuth was recommended by Grassley and later nominated by Pres. George W. Bush, he never faced U.S. Senate confirmation. He and his wife, Rebecca, are expecting their third child. He said that he has no immediate professional plans for the future, and that he plans to spend additional time with his family and working on his parents’ farm before making any decisions.

Nick Klinefeldt & Stephanie Rose

Saturday, the full Senate voted on President Obama’s U.S. attorney nominees for Iowa, confirming Nick Klinefeldt for the Southern District and Stephanie Rose for the Northern District. That means that Iowa’s two U.S. Attorney offices will soon be under new management.

Although both incoming U.S. attorneys have taken some public criticism on the road to confirmation, Rose, who has worked for more than a decade in the Northern District as a federal prosecutor, was a common target of those who believed her role in the prosecution of several hundred immigrant workers at the Agriprocessors meatpacking plant in Postville tainted her recommendation to lead the office.

U.S. Sen. Tom Harkin, who recommended both individuals for their new jobs, said such criticism was misplaced, even while he applauded a judicial ruling stating the criminal prosecutions of the workers were inappropriate. Harkin’s confidence in Rose also recently received an added boost when U.S. Sen. Chuck Grassley noted how admirable it was to see a career prosecutor rise through the ranks of the Department of Justice and be recommended to take over the post.

Despite all of the concerns that have revolved around Rose’s role in the Postville prosecutions, she is most well known within the Justice Department for investigating and prosecuting Internet pharmaceutical companies. She will become the second woman in state history to serve as a U.S. Attorney, and the first Senate-confirmed woman to lead the Northern District office.

Both Klinefeldt, whose recommendation was of a more traditional political nature since he had previously served as a Harkin aide and attorney for the Obama campaign, and Rose will replace individuals selected by Grassley and placed before the U.S. Senate by then-President George W. Bush.

Matt Whitaker, who has served the Southern District of Iowa, was confirmed unanimously by the U.S. Senate in June 2004. Matt Dummermuth, who has served the Northern District, was appointed to the post by Bush, but despite being nominated for the post in December 2008, never stood for Senate confirmation.

U.S. District Court Chief Judge Linda R. Reade has ordered that the Iowa meatpacking manager found guilty on 86 counts of fraud and money laundering will remain behind bars.

Sholom M. Rubashkin, who served as the day-to-day manager at Agriprocessors in Postville and is the son of company founder A. Aaron Rubashkin, will remain in the custody of U.S. Marshals until he is sentenced on the earlier conviction. It is unknown if Rubashkin, who recently had 72 immigration-related offenses against him dismissed, will remain in a county facility or will be moved to a federal prison. An exact sentencing date has not yet been established, and, since the process requires extensive reports for judicial review, the date could be several weeks from now.

In the bail hearing on Wednesday, the Rubashkin defense team pointed to the man’s strong community and family ties in Postville as well as his record of good behavior while on release pending trial. Prosecutors, on the other hand, told the court that the fact that Rubashkin was facing a sentence of possibly several hundred years in prison that the situation had changed significantly.

In addition, the prosecution called Mike Fischels, a special agent who has long been assigned to the Agriprocessors case, to testify about an overseas telephone conversation he had with a company supervisor still wanted by the government.

Fischels testified that he spoke with co-defendant Hosam Amara on the telephone about Amara’s flight from the U.S. to Israel. Amara indicated to Fischels that [Rubashkin] told him to leave the U.S. and return to Israel in order to remove himself from the situation facing Agriprocessors.

The government also presented a copy of a check and bank documents that suggest Rubashkin provided financial assistance to Amara around the time that he fled the U.S.

The court finds that the government’s evidence for detention is compelling.
Defendant’s actions prior to and during the pendency of the instant action, when coupled with the powerful incentive to flee due to the jury’s return of the Verdicts, demonstrates that Defendant poses a flight risk. The court notes that, in the Detention Order, it previously found that Defendant posed a flight risk.

The court acknowledges the overwhelming support that Defendant’s community has provided during the trial and the instant proceeding. The court also recognizes that Defendant took great pains to comply with the terms of his pretrial release. The court agrees that Defendant has shown he is committed to his family and to his community. Nevertheless, the court finds that this evidence does not rise to the “clear and convincing” level necessary to show that he is “not likely to flee [. . .] if released under [§] 3142(b) or(c).” 18 U.S.C. § 3143(a). Accordingly, the court shall grant the Motion.

Rubashkin’s defense team has pledged to appeal the fraud and money laundering convictions. It is unknown at this time, however, if they will also appeal this detention order.

Sholom Rubashkin, who was recently found guilty of 86 charges related to money laundering and fraud in connection with the raid, was set to go back on trial Dec. 2 in Sioux Falls, S.D. on the immigration offenses.

The order for dismissal by Reade follows a request by federal prosecutors filed early Thursday morning.

According to the government’s calculation of the sentencing guidelines, due in large part to the amount of loss associated with defendant’s fraud and false statement convictions, any convictions with regard to Counts 1 through 72 would be entirely eclipsed by defendant’s recommended guideline sentence on the counts for which he has already been convicted. This is not to minimize the importance of those counts, but at least for the purposes of the advisory sentencing guideline range, any convictions on Counts 1 through 72 would have no impact upon defendant’s sentence. However, any evidence of immigration violations would be relevant conduct that the Court could consider at sentencing even without a second trial.

In the government’s estimation, now that defendant has been convicted on the most serious offenses charged in the pending indictment (in terms of potential penalties), and given that a jury has determined defendant committed crimes by making false statements about the harboring of undocumented aliens at Agriprocessors, Inc., and his knowledge of undocumented workers at Agriprocessors, Inc., dismissal without prejudice of Counts 1 through 72 and the forfeiture allegation is the most appropriate and efficient manner in which to proceed in this case. Dismissal will avoid an extended and expensive trial, conserve limited judicial and prosecutorial resources, and lessen the inconvenience to witnesses. The public interest has been substantially served because of the convictions and jury findings noted above. The government asks that such dismissal be without prejudice so criminal charges and the forfeiture allegation could be reinitiated based upon a change in circumstances or a reevaluation of present
circumstances.

According to documents filed with the court, Rubashkin’s legal team had no objection to dismissal of the charges.

Prosecutors also noted in their motion to dismiss that the current financial condition of Agriprocessors, Inc. as a company “and the fact that it is an empty shell” were justifiable reasons for not pursuing possible forfeiture charges.

Rubashkin, 50, and other senior members of the Agriprocessors management and executive team still face a state trail, currently scheduled to begin next spring, on alleged violation of child labor laws.

Currently, Rubashkin is being held by federal authorities, pending a decision in a bail hearing held Wednesday.