The Jury Talks Back


No bail for Jews?

Filed under: Uncategorized — Scott Jacobs @ 12:37 pm

Via my inbox, I am tipped off to the following regarding a court case we might remember:

Matt Dummermuth, U.S. Attorney for the Northern District of Iowa, argued that [former Agriprocessors Chief Executive Officer Sholom] Rubashkin poses a flight risk, in part because of the Law of Return — Israeli legislation enacted in 1950 that gives Jews and those of Jewish ancestry, as well as their spouses, the right to migrate to and settle in Israel and gain citizenship. As far as anyone can remember, the Law of Return never has been cited as a reason to deny bail. Many Jews fear the ruling could set a precedent.

My problem is, I can see both sides here.

Certainly from a Civil Liberties standpoint, this is disgusting.  I’m German enough in ancestry to get German citizenship – does that mean I should be denied bail, because I might run off to Germany?

Though I generally try to avoid doing things that require any kind of bail hearing…  You know, like hiring scads of illegal immigrants in violation of State and Federal Law.

On the other hand, this is a guy that could easily afford to hop a plane and leave.  Her was a CEO, so it’s likely he’s got what the kids today call “serious bank”.  Also, the thing about Israel’s law is – as far as I understand it – you can walk into an Israeli embassy, and they basically hand you an Israeli passport.  This would make merely surrendering his US passport a pointless act.

“Sure, take my US passport…  <mutters> I’ll just go get a new one from the nearest Israeli embassy…”

Though I suppose it is unlikely that Israel would fail to extradite the guy.  After all, it isn’t like they are France or Mexico, refusing to send us back out depraved killers so we can rightly execute them.  This is a country that very much cares about it’s relationship with the US, and about the rule of law.

<Insert tasteless Jewish lawyer joke here>

Personally (and remember IANAL), I can’t see this decision not being overturned on appeal, but I have to say it’s a good try on the part of Mr. Dummermuth.

But what say you lot?  This sort of thing a good idea?  Bad idea?



  1. Bad idea. Unless he has a demonstrable propensity towards flight and (maybe or) if as a flight risk he would seek shelter to a country which would not return him. The first has not been demonstrated, and the country of concern (Israel) has not in the past (nor has any current policy of which I am aware) been unwilling to forcibly return fugitives.

    I’d rather not paint a wall which has not shown a need for the paint. Once done, you often end up with an unwanted color, and the desire to add trim and embelishments start to make the wall look silly.

    Comment by Chris — 12/29/2008 @ 12:53 pm

  2. I feel this is legislating from the Bench. Not only should this ruling be overturned, but the judge reprimanded for it.

    Yes, this guy is a “SleazeBig” (As Dom DeLuise one said in a film with Gene Hackman and Dan Aykroyd), but he has basic rights and one of them is to reasonable bail.

    Comment by PCD — 12/29/2008 @ 12:57 pm

  3. Just research the Law & Order episode archives to determine case law on this subject.

    Comment by aunursa — 12/29/2008 @ 1:09 pm

  4. From the linked article:

    “[Magistrate Judge] Scoles reportedly has told Rubashkin’s attorneys that they are attaching too much significance to the Law of Return aspect of his ruling. Scoles said evidence showed Rubashkin had a travel bag with cash and travel documents at the time of his arrest, and it is believed that two others associated with Agriprocessors already have fled to Israel.”

         If the report is correct, then what was Scoles’ purpose in citing the Law of Return aspect?
         As we all know, judges make tons of errors, often because they are persuaded by attorneys who believe they must make EVERY possible argument (here I’m assuming for the sake of argument that Dummermuth acted in good faith) and often because they (the judges) just screw up. That is why we have appellate courts (and even they sometimes screw up). If the report is correct, Scoles should reissue his ruling either with a better rationale (because ANYONE, with money, regardless of ethnicity, can escape to some country from where they cannot be extradited) or with the granting of bail. Let’s see if Scoles is such a mensch that he can do that.

    Comment by Ira — 12/29/2008 @ 2:23 pm

  5. If the report is correct, then what was Scoles’ purpose in citing the Law of Return aspect?

    An excuse, I would wager.

    Or maybe the judge was speculating as to where the guy was going to go, and saying why it would be easy for him to do so.

    Comment by Scott Jacobs — 12/29/2008 @ 2:26 pm

  6. We have an interesting bail case here. Esteban Nuñez, the son of former California Assembly Speaker Fabian Nunez will be let out on bail of $1,000,000 nothwithstanding that he is charged with MURDER. See,

    Getting back to the Rubashkin case, it took a while, but I found the actual ruling by Magistrate Judge Scoles which has caused the controversy. It can be found here:

    Rubashkin is apparently facing two different criminal cases. The first relates to charges of conspiracy to harbor one or more aliens, aiding and abetting the possession and use of fraudulent identification documents, and aiding and abetting aggravated identity theft, all apparently relating to Rubashkin’s alleged participation in the purported employment of illegal aliens by Rubashkin’s company, Agriprocessors. [Comment: Agriprocessor’s business is the making of kosher AND non-kosher beef and poultry products.]

    With respect to this case, after several months of investigation, including searches of Agriprocessors’ premises and interviews of employees, Rubashkin was charged and arrested on October 30, 2008. However, he was apparently allowed to, and did post bail under certain conditions, including the surrender of his passport. So, with respect to the first case, Rubashkin was arrested and released on October 30, 2008.

    The second criminal case relates to charges of bank fraud. From the description of the purported facts cited by Magistrate Judge Scoles, it appears that a strong case can be made that bank fraud has been committed, although it does not appear clear to me that, in the totality of the circumstances, the bank actually lost money. (The bank may have lost money, it just is not clear to me. Also, the fact that the bank might ultimately have been receiving the money due it, that does not mean that a crime was not committed.) In any event, it is with respect to the second case that the bail controversy has arisen.

    The second criminal case arises out of Agriprocessors’ credit agreement with First Bank Business Capital, Inc. On the same date that Rubashkin was arrested and released on bond with respect to the illegal alien employment charges, First Bank filed a breach of contract lawsuit against Agriprocessors.

    Magistrate Judge Scoles cited potential testimony of two Agriprocessors employees that they were instructed by Rubashkin to destroy certain evidence relating to financial transactions very shortly after First Bank’s lawsuit was filed.

    Based on evidence collected by the Government, pursuant to a warrant for the search of Agriprocessors’ premises, on November 4, 2008 and afterwards, the Government charged Rubashkin with bank fraud on November 14, 2008 and arrested him that same day. Magistrate Judge Scoles concluded (apparently with good reason) that the evidence in connection with the bank fraud case is substantial.

    At the time of this arrest, Rubashkin’s home was searched and the following were found (but apparently not seized):

    1. $20,000 in cash in a closet;

    2. In the same closet, a bag holding several thousand dollars in a travel pouch, passports of some of Rubashkin’s 10 kids, and Rubashkin’s birth certificate.

    With respect to these discoveries, Magistrate Judge Scoles acknowledged that he was impressed with the Government’s argument that “one would expect thousands of dollars in cash and other important papers to be kept in the lock boxes, rather than a travel bag.”

    [Comment: All of my cash is in my pocket and my and my kid’s passports and birth certificates are readily accessible in my home and for a long time after our last trip, our passports remained in a travel bag.]

    Magistrate Judge Scoles also seemed very impressed by a speculation about a person who apparently is a potential co-defendant in connection with the illegal alien employment charges: “It is believed that Hosam Amara, a Muslim with Israeli citizenship, fled to Israel, possibly through Canada.”

    [Comment: So, Jews and Arabs can get along!]

    Magistrate Judge Scoles connected, although somewhat inartfully and summarily, Amara’s purported flight through Canada to Israel with the potential for Rubashkin (an acknowledged Jew) to use the same escape plan, with Rubashkin’s gaining entry to Israel under the Law of Return as opposed to Amara’s using his Israeli citizenship. In this regard, Magistrate Judge Scoles also noted Rubashkin’s weeklong visit to Canada just before his initial arrest.

    [Comment: What I think is missing here from Magistrate Judge Scoles’ ruling is an analysis of just how easy or difficult it is for a non-Israeli Jew to actually get an Israeli passport outside of Israel and whether or not a charged felon would have rights under the Law of Return.]

    Magistrate Judge Scoles also noted that although Rubashkin had lived in Postville, Iowa for 15 years, and had helped build the Jewish community there, Agriprocessors was being sold and, therefore, the he (i.e., Magistrate Judge Scoles) concluded that Rubashkin’s future ties to Postville are unclear.

    All the foregoing facts weigh against granting bail to Rubashkin.

    Magistrate Judge Scoles did acknowledge that about 30 of Rubashkin’s Postville friends were willing to pledge the equity in their homes up to about $70,000 each, that two relatives were willing to pledge the equity in their homes up to about $750,000 each, and that a $225,000 cash bond would also be posted (for a total of up to about $3,725,000 of bond), and also that 275 letters from Postville and around the nation attested to the writers’ confidence that Rubashkin is not a flight risk. [Comment: It is not clear to me that the equity pledges are not backed by guarantees from Rubashkin’s family. On the other hand, other than Rubashkin having less than $30,000 on hand for his immediate family of 10 (not counting his two children who apparently are adults and live outside of Rubashkin’s home), there is no indication of what, if any, money is available for Rubashkin.]

    Magistrate Judge Scoles also noted, without comment, that Rubashkin is 49 years old and lived 15 years in Postville, 3 years in Minneapolis and apparently (although it is not clear) 31 years in Brooklyn. [So, apparently Rubashkin has only lived in America and has spent almost half of his adult life right there in Postville.]

    With the foregoing in mind, Magistrate Judge Scoles ruled the Government met its burden of proving by a preponderance of the evidence that Rubashkin is a “serious flight risk,” that is, “that there is no condition or combination of conditions which will reasonably assure Defendant’s appearance at the time of trial.”

    So, my conclusion with respect to all of the foregoing:

    I think that Magistrate Judge Scoles believes that the Government has a very good case for bank fraud against Rubashkin and that the apparent purported destruction of evidence by Rubashkin in connection with First Bank’s civil case (which may also affect the later-filed bank fraud case) indicates that Rubashkin may resort to other unfair means to avoid civil and criminal liability. At a minimum, Magistrate Judge Scoles apparently is deeply concerned that Rubashkin might at least try to flee through Canada to somewhere based on the Amara story, Rubashkin’s own visit to Canada and the just-mentioned purported destruction of evidence. Clearly, Magistrate Judge Scoles was also impressed with the travel bag.

    Do I think that Magistrate Judge Scoles ruling, based on my reading of it, is aimed at Jews? No. I think his ruling would apply to any defendant who might have an easy time gaining entry into any other country, based on ethnicity, ancestry, fraudulent documents, bribery, or otherwise.

    Do I think Magistrate Judge Scoles needed to mention the Law of Return? No. Particularly since there was evidence that Rubashkin was dealing in fraudulent documents with respect to the illegal immigrant employment case.

    Do I think that bail should have been denied based on the facts set forth in Magistrate Judge Scoles’ ruling? NO! I think the bond could have been set high enough such that it, along with the electronic monitoring, would be sufficient to assure that Rubashkin would appear at trial. (Of course, allowing anyone out on bail poses a risk of flight.)

    Comment by Ira — 12/29/2008 @ 7:10 pm

  7. Ok, I’m just gonna go sit in the corner now, and let Ira do the posting for me. :)

    Comment by Scott Jacobs — 12/30/2008 @ 5:08 am

  8. 6, Ira, I do believe the ruling was a slap at practicing Jews. No where else in the country is bail denied even to Mexicans based on the ease of entry to another country to escape the charges.

    PS. Postville is my “backyard”.

    Comment by PCD — 12/30/2008 @ 5:55 am

  9. Thanks, Scott. After you clued us in to this, I read elsewhere about it, and people were just selectively retelling just parts of the story.

    PCD (comment #8): Yeah, Scoles’ ruling had me wondering even after I read it over twice. We all know that Rubashkin and his Hasidic colleagues certainly appear to be “other,” what with their beards, headwear and distinctive dress. And, Scoles did give short shrift to the fact that Rubashkin has spent ALMOST HALF HIS ADULT LIFE in Postville. And, as both you and I pointed out, Mexicans and Mexican American’s don’t seem to be denied bail even with Mexico only a stroll away. And, mentioning the Law of Return was unnecessary and smacked of Jew-bating. So, is Scoles suspect or am I over-sensitive. I don’t know. However, as much as I would have granted bail, much of the alleged behavior of Rubashkin would cause concern for me.

    Comment by Ira — 12/30/2008 @ 10:23 pm

  10. Further to my comment that Scole’s “mentioning the Law of Return was unnecessary,” as I pointed out in my comment 6, Scoles did not back up his implication that the Law of Return would allow Rubashkin, without a passport and charged with a felony, to escape to Israel and avoid extradition any more than, as Scott pointed out, any other of the many potentially “dual” citizenship Americans could escape to another country. [Comment: I’ll try to make my sentences shorter next time.]

    Comment by Ira — 12/30/2008 @ 10:32 pm

  11. Ira,

    Rubashkin and the Orthodox Jews have made Postville their own. It used to be a Norwegian Lutheran town, but no longer.

    Has anyone checked out Scoles to see it he’s been anti-semitic in the past?

    Comment by PCD — 12/31/2008 @ 5:22 am

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