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TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Cases
AFL v. Chertoff, 552 F.Supp.2d 999 (2007) .............24-25
Gall v. United States, 552 U.S. 38 (2007) ................. 1
Kimbrough v. United States, 552 U.S. 85 (2007) ............ 1
United States v. Abdul-Aziz, 486 F.3d 471 (8th Cir. 2007) 44
United States v. Armstead, 552 F.3d 769 (9th Cir. 2008)... 36
United States v. Bollin, 264 F.3d 391 (4th Cir. 2001)..... 39
United States v. Booker, 543 U.S. 220 (2005) .............. 1
United States v. Caplinger, 339 F.3d 226 (4th Cir. 2003).. 39
United States v. Dunnigan, 507 U.S. 87 (1993) ............ 44
United States v. Garrison, 133 F.3d 831 (11th Cir. 1998).. 39
United States v. Gieseker, No. 4:09-CR-460 (E.D.Mo).......49
United States v. Icaza, 492 F.3d 967 (8th Cir. 2007)...... 36
United States v. Lee, 558 F.3d 638 (7th Cir. 2009)........ 41
United States v. Olis, 429 F.3d 540 (5th Cir. 2005)....... 32
United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007) ... 32
United States v. Santos, 553 U.S. 507 (2008) ............. 41
United States v. Thorn, 317 F.3d 107 (2d Cir. 2003) ...... 40
United States v. Turkcan, No. 4:08CR-428 (E.D.Mo).........49
United States v. Yusuf, 536 F.3d 178 (3d Cir. 2008) ...... 41
Statutes
18 U.S.C. § 2113 .........................................48
18 U.S.C. § 3553(a) ............................... 1, 47, 50
21 U.S.C. § 841(b)(1)(!) .................................48
U.S.S.G. § 2S1.1, cmt. n.5(A) ............................ 42
U.S.S.G. §2B1.1, Application Note 3(D) ................... 37
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outpouring of support.
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Defendant also has submitted a videotape of interviews with various
individuals who have provided additional information about Sholom
Rubashkin's character and good works. The videotape has been filed with
the Court.
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York and Florida, but had no control over when and how much
New York and Florida repaid Postville. First, Sholom
lacked unilateral or direct authority to terminate any
employee on the basis that the employee was the subject of
a no-match letter. He did not have the unilateral
authority to close the plant, halt a production line or
stop the purchase of cattle. (Testimony of Sholom
Rubashkin/Chaim Abrahams). He did not control the hiring of
employees. (Testimony of Billmeyer).
Sholom Rubashkin's attempts to terminate employees who
appeared to be working under false social security numbers
were vigorously opposed by his brother Heshy, who was in
charge of operations, and the managers who reported to him,
strongly opposed the termination of employees who appeared
to be working under false social security numbers. Heshy,
who was not charged by the government, halted a second
round of layoffs by appealing to Aaron Rubashkin.
(Testimony of Abrahams, Sholom Rubashkin).
Until his death, Donald Hunt largely handled the
financial management of the company. Judy Meyer handled
customer accounts until her death in the summer of 2007.
She worked with Toby Bensasson who designed the practice of
inflating accounts receivables. Sholom had little
involvement in the inflation until Judy Meyer’s death.
After her death, Sholom became Toby’s liaison with Darlis
Hendry.
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2
FBBC ultimately held additional security as well, including half the
value of inventory, trademarks, the dry goods inventory, and the live
chicken inventory, among other things. FBBC secured the revolving loan
with “AR”, inventory, the trademarks and later Local Pride. FBBC held
a second position in the plant itself.
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The accounting department at Agriprocessors created an account in
the APGEN system numbered 1510, which was the loan and exchange account
in which investments made by outside sources were booked.
Bensasson/Meltzer testimony; Defense Exhibits “1510” APGEN data)
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F. Hunt Payroll
The Hunt payroll was established so that
Agriprocessors could perform necessary work during the
weekend Sabbath period and other Jewish holidays. (Kohn
testimony). Under religious doctrine, Agriprocessors was
prohibited from even asking non-Jews to work on the Sabbath
and other holidays. (Id) Jewish law permits “work” if the
work is performed by a legal entity owned by a non-Jew is
separate from the Jewish employer. (Id.) These
requirements are necessary for the meat produced to be
Kosher.
Don Hunt initially established the “Hunt” payroll to
hire employees to perform Sabbath work. Agriprocessors
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sold for pennies on the dollar and that FBBC would not make
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that they felt there was still between $27M and $29M at
into escrow while the details of the deal were arranged and
made clear that the Rubashkins would not have any ownership
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continued, and the bank would have lost a far lesser sum of
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There was one victim in this case, FBBC. All loans and
Icaza, 492 F.3d 967, 969-70 (8th Cir. 2007); United States
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U.S.S.G. §3B1.1.
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d. Abuse of Trust
Bollin, 264 F.3d 391, 415 (4th Cir. 2001); United States v.
Garrison, 133 F.3d 831, 841 (11th Cir. 1998). Mr. Rubashkin
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e. Double-Counting
United States v. Thorn, 317 F.3d 107, 122 (2d Cir. 2003).
f. Money Laundering
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Santos, 553 U.S. 507 (2008); United States v. Lee, 558 F.3d
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g. Sophisticated Laundering
accounts."
later, funds were repaid to the bank. KCG and TEP were
TEP.
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sophisticated laundering.
i. Obstruction of Justice
The presentence report recommends that Mr. Rubashkin
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to the PSR, Sholom took the copies of the I-9s long before
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4
In his objections to the PSR, defendant argued that the loss was less
than $7 million, but erroneously noted an upward adjustment of 20
levels. An upward adjustment of 18 levels applies to a loss of between
$2.5 and $7 million, and an upward adjustment of 20 levels applies to a
loss of between $7 and $20 million.
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V. Disparity in Sentencing
Section 3553(a)(6) directs courts to consider the
"need to avoid unwarranted sentence disparities between
defendants with similar records who have been found guilty
of similar conduct." The sentence achieved by the advisory
guidelines would result in the imposition of a sentence
that is tremendously disparate when compared with
defendants convicted of similar offenses. The advisory
guidelines prescribe a sentence that is disproportionate
both to sentences imposed on codefendants and to the
seriousness of the offense conduct.
As this Court is aware, codefendant Toby Bensasson was
recently sentenced to serve 41 months' imprisonment.
Bensasson held a supervisory role at Agriprocessors, and
had a degree in business. Codefendant Mitch Meltzer, who
has not yet been sentenced, was allowed to plead guilty to
a single count of violating 18 U.S.C. § 371, carrying a
maximum penalty of five years. Meltzer also was permitted
to pleading guilty to an offense carrying a maximum
sentence of five years.
While these defendants cooperated with the government,
and Sholom Rubashkin did not, the maximum sentences
allowable are extremely disparate. The government is
seeking a sentence that is more than five times the maximum
sentence to which Bensasson was exposed. Even considering
cooperation, such a sentence is disparate in the extreme.
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Rubashkin.
VII. CONCLUSION
Based on the foregoing argument, and upon evidence to
be presented at sentencing, defendant respectfully requests
this Court to sentence him to a term of no more than 72
months’ imprisonment.
Respectfully submitted,
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PROOF OF SERVICE
Charles J Williams
Email: cj.williams@usdoj.gov
Peter E Deegan , Jr
Email: peter.deegan@usdoj.gov
James Clarity
jclarity@rconnect.com
Mark Brown
attybrown@aol.com
Rapheal Scheetz
scheetzlaw@aol.com
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