Rubashkin v. United States

• Decision Date: 20 January 2016
• Docket Number: No. 08-CR-1324-LRR,No. 13-CV-1028-LRR,13-CV-1028-LRR,08-CR-1324-LRR
• Parties: SHOLOM RUBASHKIN, Movant, v. UNITED STATES OF AMERICA.
• Court: U.S. District Court — Northern District of Iowa

SHOLOM RUBASHKIN, Movant, v. UNITED STATES OF AMERICA.

No. 13-CV-1028-LRR

No. 08-CR-1324-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

January 20, 2016

ORDER REGARDING MOTION TO RECUSE

TABLE OF CONTENTS

I.INTRODUCTION ....................................... 2

II.RELEVANT BACKGROUND ............................... 2

III.PARTIES' ARGUMENTS ................................ 17

A.The Movant ..................................... 17

B.The Government .................................. 22

IV.ANALYSIS .......................................... 26

A.Standards Governing Disqualification .................... 26

B.Procedural Obstacles ............................... 35

1.Continuation of criminal proceedings and scope of instant proceedings ................................ 35

2.Litigation bars ............................... 39

3.Timeliness .................................. 44

4.Waiver and forfeiture .......................... 50

C.Merits of Disqualification Claims Under28 U.S.C. § 455 ....... 52

1.The undersigned's actions prior to the commencement of the movant's criminal case ......................... 53

2.The undersigned's actions after the conclusion of the movant's jury trial .................................. 603.The undersigned's spouse ........................ 64

4.The grounds considered collectively ................. 71

V.CONCLUSION ....................................... 73

I.INTRODUCTION

Sholom Rubashkin's motion to recuse(civil docket no. 12) is the matter before the undersigned.Sholom Rubashkin("the movant") filed such motion on January 29, 2014.

II.RELEVANT BACKGROUND¹

[Immigration and Customs Enforcement ("ICE")], along with numerous other entities, including the United States Attorney's Office("USAO") for the Northern District of Iowa, began planning [an] enforcement action in October of 2007.In the fall of 2007,⁴ the USAO advised the undersigned that the office was considering a worksite enforcement action in the eastern part of the Northern District of Iowa and that law enforcement expected to arrest several hundred persons on immigration-related felony offenses.[The] USAO inquired as to the undersigned's schedule, which was promptly provided.⁵ The undersigned did not receive any details beyond that.At some later time, when it became clear that the government intended to go forward with the enforcement action, the undersigned contacted numerous district court judges in the Eighth Circuit and inquired whether they would be willing to come to Iowa and assist if the need arose.The undersigned also contacted the Chief Judge of the Eighth Circuit Court of Appeals to ask that specified out-of-district judges be designated to the Northern District of Iowa to assist.As the undersigned stated in a June 2008article, "[t]he court definitely couldn't accommodate that number [of defendants]without planning."The Third Branch Article([criminal] docket no. 950-2)at 74.

⁴ The [undersigned] does not recall mention of a potential enforcement action prior to December of 2007, but it appears from reliable documentation that [the] USAO made the undersigned aware of the potential worksite enforcement action as early as October of 2007.

⁵ It is important to note that the United States District Court for the Northern District of Iowa has two court locations that are approximately 350 miles apart (Sioux City in the western part of the district and Cedar Rapids in the [eastern part of the district]).The undersigned is the only district court judge chambered in the eastern side of the district who handles criminal felony matters.Magistrate Judges do not have the authority under federal statute to accept a plea or sentence in a felony criminal matter.See28 U.S.C. § 636.Thus, inquiries concerning the undersigned's availability from prosecutors and defense attorneys are routine and appropriate.

The undersigned was never informed—through a powerpoint presentation or otherwise—who the targets of the prosecutions would be or even where the worksite enforcement action was to take place.The undersigned's planning was limited to ensuring that a sufficient number of judges, court-appointed attorneys and interpreters would be available and that the court would be able to function efficiently at an off-site location.The undersigned did not tour the Cattle Congress grounds in Waterloo, Iowa.However, court personnel toured the grounds and worked on the grounds of the Cattle Congress making preparations prior to the day of the enforcement action.

Rule 33Order(criminal docket no. 958)at 4-6.

The movant managed Agriprocessors, Inc.("Agriprocessors"), a meat packing plant in Postville, Iowa.At one point, such plant employed over a thousand people.

The majority of Agriprocessors['] workers were undocumented immigrants.In May 2008, [ICE] conducted the nation's largest worksite immigration action at the Agriprocessors plant.ICE arrested almost four hundred of its employees for immigration violations and criminally charged most of them.Around that time, [the movant] received letters from the [USAO] in the Northern District of Iowa indicating that he was the target of a federal investigation for financial and immigration crimes.

Rubashkin, 655 F.3d at 854;see also Gov't Exhibits 5502-5503 (criminal docket nos. 912-282 & 912-283).

After the administrative arrest of nearly 400 people, court personnel, including the undersigned district court judge, Chief Magistrate Judge Paul Zoss and Magistrate Judge Jon S. Scoles arrived at the Cattle Congress grounds in Waterloo to begin the work of the court.Although the undersigned had obtained designations for several district judges to travel to the Northern District of Iowa to assist, initially the only district judge on the grounds was the undersigned.As it became clear that the number of arrestees would, in fact, be in the hundreds, District Court Judge Mark W. Bennett from the Northern District of Iowa and District Court Judge Ralph Erickson from the District of North Dakota traveled to Waterloo to assist.

As defense counsel concedes, no court could move off-site with its personnel, over thirty interpreters from outside the district, defense attorneys and technology without significant advance planning.Logically, the Chief Judge of the District and the only resident judge near Waterloo would have to be consulted.During and soon after the legal proceedings in Waterloo, numerous articles and letters were written concerning the process.For instance, an attorney who declined to represent defendants in Waterloo wrote a letter criticizing the court's involvement.An interpreter also wrote an article critical of the proceedings.A legal publication entitled "The Third Branch" featured an article discussing the court's preparations for the large number of defendants that came before it.Additionally, [in July of 2008], the United States House of Representatives Judiciary Subcommitteeconducted hearings related to the enforcement action and the subsequent court proceedings.[²]

These publications, among other documents, led a defendant in a related case to file a motion seeking the undersigned's recusal pursuant to 28 U.S.C. § 455(a), which states that a judge "shall disqualify [himself or herself] in any proceeding in which [his or her impartiality] might reasonably be questioned."SeeUnited States v. Martin De La Rosa-Loera, 08-CR-1313-LRR, docket no. 30[(N.D. Iowa2009)].DefendantMartin De La Rosa-Loera filed [a motion to recuse] on August 13, 2008, after his plea of guilty was accepted but prior to the [undersigned] conducting his sentencing hearing.De La Rosa-Loera attached twenty-four exhibits to his [motion to recuse], including: (1)articles from national and local newspapers; (2) press releases from interest groups, the government and Mr. Robert Phelps, the Clerk of Court for theNorthern District of Iowa; (3) letters from a public interest group to the undersigned and from a local attorney to a Congresswoman; (4) criminal docket sheets; and (5) an interpreter's "personal account" of his involvement in the Waterloo cases.De La Rosa-Loera argued that the undersigned should recuse herself based on the court's pre-enforcement action planning.On September 29, 2008, the [undersigned] denied [De La Rosa-Loera's motion to recuse].See[id., docket no. 60].In the [order denying the motion to recuse], the [undersigned] discussed [the undersigned's] pre-enforcement action planning, deemed it logistical in nature and stated that any and all preparation was conducted pursuant to [the undersigned's] role as Chief Judge of the Northern District of Iowa.Id. at 6.

Rule 33Order(criminal docket no. 958)at 6-7.

In October and November of 2008, the government commenced criminal proceedings against the movant by filing criminal complaints against him.Ultimately, the government presented evidence to the grand jury in November of 2008, and, after considering the evidence, the grand jury returned multiple indictments that charged the movant with immigration and financial crimes.At a December 9, 2008 status conference, the attorneys for the parties and the undersigned discussed the filing of a recusal motion and selected January 30, 2009 as the deadline for filing such a motion.Transcript of Telephonic Hearing (criminal docket no. 168)at 35.

[The movant's defense]counsel was aware of [the order denying De La Rosa-Loera's motion to recuse] and its contents but did not move for . . . recusal at [the movant's] trial or for any related discovery.Nor did [the movant] object to the deadline the [undersigned] had set for recusal motions.After that deadline had passed, [the movant] made a Freedom of Information Act request to ICE for records regarding its meetings with the USAO and the [undersigned].

Rubashkin, 655 F.3d at 855.

Bradshaw, Fowler, Proctor & Fairgrave, P.C., ("Bradshaw") is a law firm that employs over 40 attorneys, including the undersigned's...