IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SHOLOM RUBASHKIN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. C13-1028-LRR
No. CR08-1324-LRR
PETITIONER’S MOTION FOR
LEAVE TO FILE OVERLENGTH
BRIEF

Petitioner Sholom Rubashkin, by the undersigned counsel, submits this Motion for Leave
to File Overlength Brief, and states as follows:
1.

Petitioner has contemporaneously filed a Motion to Recuse Chief United States

District Court Judge Linda R. Reade (the “Motion to Recuse”).

Petitioner’s proposed

Memorandum in Support of the Motion to Recuse exceeds the page limits set forth in Local Rule
7h.
2.

Petitioner submits that a brief in excess of the page limits is appropriate and

necessary in light of the complexity of the issues presented in the Motion to Recuse and
complexity of the case in general. Petitioner’s proposed Memorandum is attached as Exhibit A.
WHEREFORE, Petitioner respectfully requests that the Court enter an Order granting
leave to file an overlength Memorandum of Law in Support of Plaintiff’s Motion to Recuse
Chief United States District Court Judge Linda R. Reade, and for such other relief as the Court
deems fair and equitable.

-1Case 2:13-cv-01028-LRR Document 13 Filed 01/29/14 Page 1 of 3

 BELIN McCORMICK, P.C.
/s/ Stephen H. Locher
By:
Stephen H. Locher
Matthew C. McDermott
666 Walnut Street, Suite 2000
Des Moines, IA 50309-3989
Telephone: (515) 283-4610; 283-4643
Facsimile: (515) 558-0610; 558-0643
Email: shlocher@belinmccormick.com
mmcdermott@belinmccormick.com
Paul Rosenberg
PAUL ROSENBERG, P.C.
1821 Ruan Center
666 Grand Avenue
Des Moines, IA 50309
Telephone: (515) 245-3828
Facsimile: (515) 247-2207
Email: prosenlaw@aol.com
ATTORNEYS FOR PLAINTIFF
SHOLOM RUBASHKIN

-2Case 2:13-cv-01028-LRR Document 13 Filed 01/29/14 Page 2 of 3

 PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon the parties to this action by serving a copy upon each
of the attorneys listed below on January 29, 2014 by

□

U.S. Mail

□

FAX

□

Hand Delivered

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Electronic Mail

□

FedEx/ Overnight Carrier

X

CM / ECF

Sean R. Berry
Peter E. Deegan, Jr.
U.S. Attorney’s Office
111 Seventh Avenue SE, Box 1
Cedar Rapids, IA 52401
Peter.deegan@usdoj.gov
ATTORNEYS FOR DEFENDANT
Signature:

/s/ Stephen H. Locher

BELIN\R0591\0001\01748910

-3Case 2:13-cv-01028-LRR Document 13 Filed 01/29/14 Page 3 of 3

 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SHOLOM RUBASHKIN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. C13-1028-LRR
No. CR08-1324-LRR
MEMORANDUM OF LAW IN
SUPPORT OF MOVANT
SHOLOM RUBASHKIN’S
MOTION TO RECUSE CHIEF
UNITED STATES DISTRICT
COURT JUDGE LINDA R. READE

TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................3
I.

EX PARTE COMMUNICATIONS PRIOR TO TRIAL AND
SENTENCING. ..................................................................................................................6

II.

THE CLOSE CONNECTION BETWEEN THE BRADSHAW
FOWLER LAW FIRM, THE PROSECUTION OF SHOLOM
RUBASHKIN, AND THE MATTERS RAISED IN RUBASHKIN’S §
2255 PROCEEDING. ......................................................................................................12

III.

RECUSAL IS REQUIRED BECAUSE THE PRESIDING JUDGE
HAS PERSONAL KNOWLEDGE OF DISPUTED EVIDENTIARY
FACTS, IS LIKELY TO BE A MATERIAL WITNESS AT TRIAL,
LIKELY WILL HAVE TO EVALUATE TESTIMONY AND
EVENTS INVOLVING HER HUSBAND’S LAW FIRM, AND
BECAUSE OF A GENERAL APPEARANCE OF IMPROPRIETY. .......................16
A.

The Presiding Judge Has Personal Knowledge of Disputed,
Material Facts Surrounding Her Ex Parte Communications with the
USAO-NDIA, and Thus Recusal Is Mandated Under 28 U.S.C.
§455(b)(1). .............................................................................................................16

B.

Recusal Is Required Under 28 U.S.C. § 455(b)(5) Because the
Presiding Judge Is Likely to Be a Material Witness. .............................................20

C.

Recusal Is Necessary Because of the Bradshaw Fowler Law Firm‘s
Involvement in Representing Rubashkin-Related Entities in
Matters Directly Linked to this Case. ....................................................................23

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 IV.

D.

Recusal Also Is Appropriate Under § 455(a) In Light of the
Appearance of Impropriety. ...................................................................................26

E.

The Government‘s Recent Assertion of a Conflict of Interest on the
Part of One of Mr. Rubashkin‘s Attorneys Provides Yet Another
Reason for Recusal. ...............................................................................................32

THE CONCERNS EXPRESSED BY MANY OF THE NATION’S
LEADING EXPERTS IN JUDICIAL ETHICS, FORMER
FEDERAL PROSECUTORS, FORMAL FEDERAL JUDGES, AND
SEVERAL DOZEN CURRENT MEMBERS OF CONGRESS
FURTHER DEMONSTRATE THAT A DISINTERESTED
OBSERVER WOULD FIND RECUSAL APPROPRIATE........................................35
A.

Members of Congress, Former DOJ Officials, and Others
Expressed Disapproval of Chief Judge Reade‘s Actions........................................35

B.

Ethics Experts Conclude That the Presiding Judge Was Obligated
to Recuse Herself from Presiding at Mr. Rubashkin‘s Trial ..................................38
1.

Mark Harrison ...........................................................................................38

2.

Stephen Gillers ...........................................................................................39

3.

Geoffrey Hazard.........................................................................................39

4.

Richard E. Flamm ......................................................................................40

CONCLUSION ..............................................................................................................................41

-2Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 2 of 42

 INTRODUCTION
Sholom Rubashkin moves to recuse Chief United States District Court Judge Linda R.
Reade (the ―Presiding Judge‖) from presiding over his timely filed Title 28, section 2255
petition, which seeks to vacate his conviction and 27-year sentence for bank fraud and money
laundering. Recusal is necessary because the case is littered with factual and legal issues so
closely connected to the actions, statements, and relationships of the Presiding Judge that an
observer might reasonably question her ability to remain impartial. Rulings will have to be
made, for example, regarding the propriety of ex parte communications between the Presiding
Judge and the prosecution prior to charges being filed in Mr. Rubashkin‘s criminal case; the
propriety of additional ex parte communications between the Presiding Judge and the
prosecution immediately prior to Mr. Rubashkin‘s sentencing; the involvement of the Bradshaw
Fowler law firm (of which the Presiding Judge‘s husband is a senior partner) in past and future
events in the case; and a conflict issue centered on the knowledge (or lack thereof) of one of Mr.
Rubashkin‘s attorneys regarding allegedly confidential ex parte communications between the
Presiding Judge and the government. No judge, no matter how well intentioned, could be
expected to evaluate her own actions and statements, address matters in which her husband‘s law
firm was – and still is – providing assistance to Mr. Rubashkin, and rule on other issues of which
she has personal knowledge from extrajudicial sources without legitimate questions being raised
about impartiality.
First, the government‘s Answer to the petition makes clear that the adjudication of the
case will require the Court to make numerous factual and legal determinations relating to the
Presiding Judge‘s ex parte communications with the United States Attorney‘s Office for the
Northern District of Iowa (―USAO-NDIA‖). The ex parte communications at issue include not

-3Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 3 of 42

 just those addressed in the Eighth Circuit Court of Appeals decision affirming Mr. Rubashkin‘s
conviction on direct review, but also certain ex parte communications that occurred shortly
before Mr. Rubashkin‘s sentencing hearing and yet, to this day, have not been produced to Mr.
Rubashkin‘s counsel by the USAO-NDIA. Among other things, the Court will have to decide:


whether to permit Mr. Rubashkin to take discovery regarding the ex parte
communications;



what actually occurred during the ex parte communications;



whether the substance and context of the ex parte communications indicates an
appearance of bias or partiality rising to the level of a due process violation; and



whether the Presiding Judge‘s recollection of events should outweigh arguably
inconsistent information in law enforcement memoranda and documents.

Second, the web surrounding the ex parte communications with the USAO-NDIA has
grown even more tangled this month, as the government is now alleging the existence of a
conflict on the part of one of Mr. Rubashkin‘s attorneys arising out of the attorney‘s former
service as an Assistant United States Attorney for the Southern District of Iowa. The alleged
conflict relates to the referral to the Southern District of Iowa of an investigation into possible
threats against the Presiding Judge—the same investigation which led to the still-undisclosed ex
parte communications between the Presiding Judge and the USAO-NDIA immediately prior to
Mr. Rubashkin‘s sentencing. Counsel had no role in that investigation and is confident no
conflict exists; however, the mere fact that the government intends to raise the issue with the
Court means that the Presiding Judge, if not recused, will have to address a conflict issue relating

-4Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 4 of 42

 to an attorney‘s knowledge (or lack thereof) of her own allegedly confidential ex parte
communications.1
Third, attorneys at the Bradshaw Fowler law firm, of which the Presiding Judge‘s
husband is a senior partner, represented five companies closely affiliated with Sholom
Rubashkin during the pendency of his criminal case and regularly met with Mr. Rubashkin to
discuss strategy and other matters. These attorneys likely possess material information regarding
a crucial issue in this case; namely, the improper interference of the government with the
Agriprocessors business during bankruptcy proceedings. Indeed, fee petitions submitted by the
Bradshaw Fowler firm to the bankruptcy court in 2009 and 2010 show that attorneys from the
firm provided assistance to Mr. Rubashkin‘s criminal defense attorneys during his criminal case.
A Bradshaw Fowler attorney also has provided, and is expected to continue providing, assistance
to Mr. Rubashkin‘s counsel in this case. One or more Bradshaw Fowler attorneys may even be
asked to testify in this matter regarding their interactions with attorneys for the Agriprocessors
Trustee. An appearance of partiality arises when the Presiding Judge is asked to decide issues so
closely linked to her husband‘s firm.
The denial of Mr. Rubashkin‘s Rule 33 motion for a new trial by the Eighth Circuit Court
of Appeals, which involved the issue of certain ex parte communications, does not impact, much
less foreclose, this recusal motion. United States v. Rubashkin, 655 F.3d 849, 857-58 (8th Cir.

1

To be clear, the government is not alleging that counsel should be disqualified as a result of the
alleged conflict. Rather, the government asserts the existence of a waivable conflict. Although
the alleged conflict is only between counsel and client, and although Iowa Rules of Professional
Conduct are generally self-governing, the government has requested an assurance from counsel
that Mr. Rubashkin has been advised regarding the alleged conflict and that he has provided
informed consent to proceed with the representation. The government further states that it
intends to disclose the conflict and assurance to the Court.

-5Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 5 of 42

 2011). On direct appeal, the Eighth Circuit‘s consideration of the ex parte contacts was limited
to three specific issues: (1) whether Mr. Rubashkin‘s recusal request was timely or should have
been made before trial; (2) whether the Presiding Judge‘s failure to recuse herself sua sponte
constituted ―plain error;‖ and (3) whether Mr. Rubashkin had shown actual bias on the part of the
Presiding Judge. Id. at 585-59.
The Eighth Circuit did not address the issues that are central to this motion: (1) whether
the Presiding Judge‘s personal knowledge of disputed facts – i.e., her role as fact-provider rather
than fact-finder – provides grounds for recusal under §455(b)(1); (2) whether Mr. Rubashkin
should be permitted to take discovery of the ex parte communications, including the stillundisclosed ex parte communications from immediately prior to sentencing; (3) whether the
connection between the Presiding Judge‘s husband‘s law firm and this case requires recusal; and
(4) whether the totality of circumstances – including the Presiding Judge‘s personal knowledge
of critical events, ex parte communications with the government both before trial and before
sentencing, the arguable inconsistency between her personal recollection and law enforcement
memoranda, the Bradshaw Fowler connection, and substantial criticism by former DOJ officials
and federal judges, ethics experts, law professors and government officials – would coalesce to
cause an average observer in possession of all the facts to question the Presiding Judge‘s ability
to remain impartial.
STATEMENT OF THE RELEVANT FACTS AND
PROCEDURAL HISTORY
I.

EX PARTE COMMUNICATIONS PRIOR TO TRIAL AND SENTENCING.
The indictment of Sholom Rubashkin had its genesis in a massive federal raid of

Agriprocessors, a kosher meatpacking plant in Postville, Iowa where Mr. Rubashkin worked as a
vice-president. (App. 2.) The raid, carried out by approximately 600 Immigration and Customs

-6Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 6 of 42

 Enforcement Agency (ICE) agents, resulted in the arrest of 389 plant workers. (App. 3, 8.) The
USAO-NDIA prosecuted 297 of these individuals, all of whom pled guilty over a four day period
to immigration violations. Julia Preston, Illegal Immigrants Sent to Prison in Federal Push,
N.Y. TIMES, May 24, 2008 (App. 13-17.). The Presiding Judge met with federal prosecutors and
law enforcement agents numerous times for a period of seven months prior to the raid to discuss
various matters relating to the raid and the prosecutions that arose from it. (App. 18-48.)
Less than six months after the raid, Sholom Rubashkin was arrested on multiple charges
of harboring illegal immigrants for profit at Agriprocessors. (App. 50-51.) Ultimately, the
USAO-NDIA indicted him on these and numerous other immigration and financial crimes.
(App. 51-53.). A government lawyer told the House Judiciary Committee that the USAO-NDIA
had given the Presiding Judge a routine ―heads up‖ about an impending law enforcement
operation. (App. 60.) Based on some of these facts and other media reports, trial counsel in a
related case filed a motion to recuse the Presiding Judge. (App. 61-62.) In denying that motion,
the Presiding Judge issued a written order stating that she ―limited her actions in the
[Agriprocessors] cases to her role as Chief Judge of the Northern District of Iowa, that is,
performed duties in her official capacity.‖ (App. 68.) Based on these facts, Mr. Rubashkin‘s
trial counsel did not file a recusal motion, reasoning that it would be futile to do so. (App.77, 8283.) Trial counsel, did, however, file a Freedom of Information Act (FOIA) request prior to trial
requesting any and all documents related to the Agriprocessors raid. (App. 78.) They received
no documents responsive to the FOIA request before the case went to trial before the Presiding
Judge, nor did the USAO-NDIA voluntarily produce any documents.

-7Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 7 of 42

 The jury found Mr. Rubashkin guilty on 86 fraud-related counts.2 (App. 86-94). On
June 22, 2010, following two days of sentencing hearings, the Presiding Judge handed down a
sentence of 27 years in prison – two years above what the USAO-NDIA had sought. (App. 4.) It
was effectively a life sentence for the fifty-one-year-old Mr. Rubashkin, a husband and father of
ten children, one severely disabled. (App. 5-6.).
Shortly before the first day of Mr. Rubashkin‘s sentencing hearing, the USAO-NDIA sent
an email to Mr. Rubashkin‘s trial counsel with the subject line ―disclosures.‖ The email stated,
in pertinent part:
During the pendency of this matter, Chief Judge Linda R. Reade has received
several communications that may be characterized as threatening. Some of these
communications are or appear to be connected to this case. The investigations
regarding the communications connected to this case are being conducted by the
Federal Bureau of Investigation. The United States Attorney‘s Office for the
Northern District of Iowa is recused from these investigations because they
involve a Northern District Judge. Our office has been informed that the progress
of the FBI‘s investigations is such that disclosure of the communications to you
will not adversely affect the investigations. Enclosed please find copies of the
communications being investigated.
Chief Judge Reade has recently expressed concern to the United States Marshal‘s
Service and our office‘s management about the progress of these investigations.
Management has informed Chief Judge Reade we are recused on the matters and
has directed her to the appropriate FBI Office (Cedar Rapids) and United States
Attorney‘s Office (Southern District of Iowa).

2

The Presiding Judge severed the immigration counts from the financial crimes counts and
ordered that the financial crimes be tried first, over Mr. Rubashkin‘s objection. United States v.
Rubashkin, 655 F.3d at 854. Following Mr. Rubashkin‘s conviction, the government dismissed
the immigration case against him. (App. 54.) But the severance and eventual dismissal did not
mean that the immigration charges – derived directly from evidence obtained from the May 12,
2008 raid – went unmentioned in the financial-crimes trial. To the contrary, the evidence played
a significant role. For nearly three days, the jury heard testimony from seven witnesses who
testified that Mr. Rubashkin knew that many of his workers were illegal, set up a side payroll to
avoid attracting attention, and gave some of his workers money to purchase fake documents that
would allow them to work in the United States. (App. 9-10.)

-8Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 8 of 42

 (App. 95-96.) The USAO-NDIA did not state the form of the ex parte communications between
its ―management‖ and the Presiding Judge (email, phone call, in-person conversation, etc.) and
has never provided the actual communications themselves.
After Mr. Rubashkin was sentenced, the government released numerous heavily-redacted
documents responsive to trial counsel‘s FOIA request and lawsuit relating to the pre-raid
activities. These documents, consisting largely of memoranda and emails authored by ICE
officials, evidence numerous ex parte meetings between the Presiding Judge and the USAONDIA beginning in early October 2007, and continuing throughout the seven months leading up
to the Agriprocessors raid on May 12, 2008. (App. 11-12, 18-48.) None of the meetings was
recorded or transcribed. (App. 28.)
Although heavily-redacted, the ICE memoranda evidence that the Presiding Judge,
federal prosecutors and ICE agents met ex parte more than ten times; one document states that
the meetings were ―scheduled weekly.‖ (App. 42.) One of the prosecutors with whom the
Presiding Judge met ex parte was AUSA Richard Murphy, part of the prosecution team that tried
the case against Mr. Rubashkin and sought a 25-year sentence against him, a request the
Presiding Judge exceeded by two years.
Documents obtained through the FOIA request refer to the Presiding Judge as a
―stakeholder‖ in the operation and state that she was ―willing to support the immigration
operation in any way possible.‖ (App. 38, 41). The memoranda show that the Agriprocessors
raid targeted ―at least one corporate official,‖ as well as low-level employees. (App. 31.)
In a March 12, 2008 PowerPoint presentation describing the planned raid – which may
have been shown during the March 17, 2008 meeting attended by the Presiding Judge – ICE
identified Mr. Rubashkin as the ―Vice-President of the company,‖ and noted its belief ―that one or

-9Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 9 of 42

 more company officials may have knowledge of criminal conduct on the part of the company and
may even be culpable themselves.‖ (See App. 98, 104.)
Whether or not the Presiding Judge actually saw the PowerPoint during the March 17,
2008 meeting, she did discuss with the USAO-NDIA ―an overview of charging strategies,
numbers of arrests and prosecutions, logistics, the movement of detainees and other issues
related to the CVJ investigation and operation‖ on that date. (App. 25.) Three days later, at yet
another ex parte meeting, the Presiding Judge asked the USAO and ICE for a ―final game plan‖
for the raid. (App. 27.) A March 31, 2008 email refers to a planned meeting between the
Presiding Judge and AUSA Murphy on April 4, at which AUSA Murphy planned to give a
―presentation‖ to the Presiding Judge and asked ICE for ―an operation plan‖ to incorporate into
that presentation. (App. 29.) No unredacted document describes what occurred at that meeting.
Nonetheless, the state of the record allows for the inference that the ―presentation‖ AUSA
Murphy gave to the Presiding Judge included a documented titled ―Exec[utive] Summary,‖
which describes the planned raid in detail, explicitly states that the target of the raid is
―Agriprocessors, Inc.,‖ and indicates that ―at least one corporate official‖ will be arrested. (App.
30.) Sholom Rubashkin was the only ―corporate official‖ ever charged in connection with the
raid. An unnamed ICE official forwarded the Executive Summary to another ICE official named
Marcy Forman one month before the raid, after Forman sent an email to ICE asking, ―What is
the status of our Op [raid] plan?

Where are we on the doc for the USAO fro [sic] his

presentation to the judge?‖ (App. 30.) In the email accompanying the forwarded Executive
Summary dated April 2, 2008, the unnamed ICE official wrote to Forman, ―The Exec summary
of the [raid] will satisfy [AUSA] Richard Murphy‘s requirement to brief the judge.‖ (App. 30.)

- 10 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 10 of 42

 The Presiding Judge has asserted that Mr. Rubashkin‘s identity and involvement in the
case was never disclosed to her during these ex parte meetings. (Rule 33 Order at p. 5) Even if
true, his identity and involvement reasonably would have become obvious once Mr. Rubashkin
was arrested and first appeared before her. At that point, the Presiding Judge must have known
that Mr. Rubashkin was the ―corporate official‖ that the government had told her in ex parte
communications had been targeted for prosecution. Although the Presiding Judge knew she had
ex parte information about Mr. Rubashkin‘s case that both raised the appearance of bias as well as
the danger of actual bias, the Presiding Judge did not recuse herself, nor did she inform trial
counsel, both of whom have stated under oath that they would have sought to remove her from the
case had they been made aware of this information. (App. 77, 84.)
Following the disclosure of the ICE memoranda, Mr. Rubashkin filed a Rule 33 motion,
arguing that the Presiding Judge should have recused herself from presiding over his trial. The
Presiding Judge denied the motion. (Rule 33 Order at p. ) The Eighth Circuit Court of Appeals
affirmed on narrow grounds, holding that, because trial counsel had failed to raise the recusal
motion at the time of trial, reversal would be mandated only if Mr. Rubashkin could establish
that the Presiding Judge‘s recusal ―probably would have resulted in acquittal.‖ Rubashkin, 655
F.3d at 857-59. Mr. Rubashkin filed a petition for certiorari with the Supreme Court on April 2,
2012. (App. 1.) Following the Supreme Court‘s denial of the writ for certiorari, Mr. Rubashkin
timely filed his section 2255 petition. Because the Rules governing the filing of a section 2255
petition state that it must be filed in the district court where the prisoner was sentenced, Mr.
Rubashkin‘s petition is currently pending before the Presiding Judge.
In its Answer to the § 2255 petition, the government denied withholding information
regarding ex parte communications with the Presiding Judge. The government further asserted

- 11 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 11 of 42

 that ―[h]ad movant‘s trial counsel moved to recuse the judge based upon alleged ex parte
contacts with the government, such a motion would have been properly denied and such denial
would have been sustained on appeal.‖ (App. 111-112)
II.

THE CLOSE CONNECTION BETWEEN THE BRADSHAW FOWLER LAW
FIRM, THE PROSECUTION OF SHOLOM RUBASHKIN, AND THE
MATTERS RAISED IN RUBASHKIN’S § 2255 PROCEEDING.
The Presiding Judge‘s husband is a senior partner with the Bradshaw Fowler law firm in

Des Moines, Iowa. See United States v. Miell, 2008 WL 974843 at *1, No. 07-CR-101-LRR,
(April 8, 2008).

In March 2009, during the pendency of Mr. Rubashkin‘s criminal case,

Bradshaw Fowler was retained as bankruptcy counsel by four companies owned in substantial
part by Sholom Rubashkin: Nevel Properties Corporation, Amereeka Properties, LLC, SFG
Corporation, and Best Value, Inc. See In re Nevel Properties Corporation, Case No. 09-00415
(Bankr. N.D. Iowa.); In re Amereeka Properties, LLC No. 09-00416 (Bankr. N.D. Iowa); In re
SFG Corporation, Case No. 09-00417 (Bankr. N.D. Iowa); and In re Best Value, Inc., Case No.
09-00591 (Bankr. N.D. Iowa). The Bradshaw Fowler firm filed Chapter 11 bankruptcy
proceedings on behalf of all four corporations in March 2009. (Id.)3 Sholom Rubashkin was a
principal and part-owner of each of those companies, and the fee petitions submitted by the
Bradshaw Fowler firm in those cases reflect dozens of conversations and meetings with Mr.
Rubashkin. (App. 114-248.) The Bradshaw Fowler firm identified Mr. Rubashkin as ―one of the
Debtor‘s primary liaisons with its counsel [Bradshaw Fowler]‖ and stated that Mr. Rubashkin
played an active role in the cases ―on almost a daily basis.‖ (App. 251.)

3

The Bradshaw Fowler firm also represented a fifth Rubashkin-affiliated company, Cottonballs,
that did not end up in bankruptcy but that figures prominently in Mr. Rubashkin‘s § 2255
Petition. See § 2255 Memorandum at pp. 12-14; 36.

- 12 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 12 of 42

 The fee petitions submitted by the Bradshaw Fowler firm in the bankruptcy cases also
reveal dozens of conversations and emails between Bradshaw Fowler attorneys and Mr.
Rubashkin‘s criminal defense attorneys. (App. 119, 136-137, 142, 155-156, 160, 174, 177, 184,
190, 191, 192, 204, 215, 231-233, 239-240.) These conversations and emails are often described
as having involved ―strategy‖ and occurred most heavily in the months leading up to Mr.
Rubashkin‘s sentencing. (App. 137, 156, 160, 177, 190, 204, 240.) The day after the Presiding
Judge sentenced Mr. Rubashkin to 27 years‘ imprisonment and ordered the payment of criminal
restitution, a Bradshaw Fowler attorney spoke with one of Mr. Rubashkin‘s criminal defense
attorneys regarding ―bankruptcy implications‖ of the sentence. (App. 155.)
Although the Presiding Judge‘s husband is not mentioned in any of the Bradshaw Fowler
fee petitions as having taken part in representing the Rubashkin-affiliated companies, ten other
attorneys from the Bradshaw Fowler firm did bill time on the matters, as well as two law clerks
and four legal assistants. (App. 121, 128, 132, 147, 159, 166, 176, 186, 193, 200, 202, 208, 219,
223-224, 234, 243, 246, 248.)4 The Bradshaw Fowler firm has roughly 45 attorneys; meaning
that nearly 25% of its attorneys billed time on the Rubashkin-affiliated matters. (App. 295.) The
Bankruptcy Court approved the payment of more than $250,000 to the Bradshaw Fowler firm in
connection with its work on the Nevel and Best Value bankruptcies. (App. 535, 562.) This
amount includes fees incurred during ―strategy‖ conversations with Mr. Rubashkin‘s criminal
defense attorneys and other apparent assistance provided to those criminal defense attorneys.
(App. 137, 156, 160, 177, 190, 204, 240.)

4

The lead Bradshaw Fowler attorney on the matter was Jeffrey Goetz.

- 13 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 13 of 42

 The Presiding Judge‘s rulings in Mr. Rubashkin‘s criminal case directly affected
Bradshaw Fowler‘s representation of the Rubashkin entities, including, for example, when the
Presiding Judge‘s decision to have Mr. Rubashkin detained following trial prevented him from
appearing at a bankruptcy court hearing at which Bradshaw Fowler sought his attendance. (App.
296-299.) The dockets from the bankruptcy cases also reveal other examples of substantial
entanglement between Best Value, Agriprocessors, the Bradshaw Fowler law firm, and Mr.
Rubashkin‘s criminal case:


Agriprocessors, Inc. owed more than $466,000 to Best Value at the time Best Value
filed for bankruptcy. (App. 312.) Any restitution order in Mr. Rubashkin‘s criminal
case (to which Agriprocessors was even a party until eventually being dismissed)
would have affected Bradshaw Fowler‘s ability to recover that debt on behalf of Best
Value.



Cottonballs, Inc., paid part of the retainer to the Bradshaw Fowler firm for its
representation of Best Value and was also a client of the firm. (App. 531.) A
disputed issue at sentencing was whether the refusal to allow Agriprocessors to use
Cottonballs for raising chickens caused part of the loss ultimately suffered by First
Bank. (App. 321-322.)



According to a filing by the Bradshaw Fowler firm, there were ―rumors‖ that the
Agriprocessors‘ trustee might assert an ownership interest by Agriprocessors in the
assets of Best Value, and thus try to assert control over the Best Value bankruptcy.
(App. 312.) Any assertion of control by Agriprocessors over Best Value‘s assets
likely would have reduced Mr. Rubashkin‘s loss amount but also may have
complicated Bradshaw Fowler‘s efforts to liquidate the Best Value estate.



In the Best Value bankruptcy, the United States Trustee filed a motion to convert the
case from Chapter 11 (reorganization) to Chapter 7 (liquidation). (App. 314-317.)
The Agriprocessors Trustee joined the motion. (App. 538.) If granted, this motion
would have effectively terminated Bradshaw Fowler‘s leading role as counsel in the
matter, as a neutral Chapter 7 trustee would have been appointed to manage the
liquidation. However, on the day the Presiding Judge issued an opinion imposing a
27-year sentence on Mr. Rubashkin, the United States Trustee withdrew the motion to
convert. (App. 539.) The Agriprocessors Trustee joined the withdrawal the
following day. (App. 540-541.)



According to a Bradshaw Fowler fee petition, a Bradshaw Fowler attorney had
several conversations with AUSA Rich Murphy regarding, apparently, whether the

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 conditions of pretrial release for Mr. Rubashkin could be relaxed to allow him to
discuss bankruptcy matters with potential government trial witness Collin Cook.
(App. 155.)


In July 2010, Bradshaw Fowler filed a motion to withdraw from the Nevel
bankruptcy matter on account of a conflict between the firm and its client. (App.
542-543.) Nevel‘s new counsel subsequently opposed Bradshaw Fowler‘s final fee
petition in the matter. (App. 544-554.)

Cottonballs and Best Value play a prominent part in the allegations made by
Mr. Rubashkin in his § 2255 motion. Mr. Rubashkin alleges that the USAO-NDIA told the
Agriprocessors Trustee that Agriprocessors could not use Best Value to deliver products unless
no other trucks were available. (§ 2255 Brief at p. 13.) Similarly, the § 2255 motion alleges that
the government improperly prohibited Agriprocessors from using Cottonballs to raise chickens.
(§ 2255 Brief at pp. 12, 36.) In short, Mr. Rubashkin alleges that ―[t]he government‘s . . .
operational intrusions into the Trustee‘s autonomy compromised the Trustee‘s ability to
maximize value for the creditors of Agriprocessors in the bankruptcy.‖ (§ 2255 Brief at p. 36.)
Bradshaw Fowler attorneys presumably have firsthand information regarding these
operational intrusions, particularly as they relate to Best Value and Cottonballs. The Bradshaw
Fowler fee petitions reflect numerous conversations with Dan Childers and Paula Roby, who
served as counsel for the Agriprocessors Trustee. (App. 115-116, 124, 144, 153, 182-183, 196,
197-198, 207, 212-216, 226-227, 229, 232, 237-238, 242.) Ground 1 of the § 2255 petition
revolves heavily around Ms. Roby‘s sentencing hearing testimony that the USAO-NDIA did not
influence the decision of the Agriprocessor‘s Trustee not to do business with Cottonballs. (§
2255 Memorandum at pp. 12-13.) Ms. Roby stated, in particular, that she, Mr. Childers, and a
third attorney, Bob Reich, made this decision on their own, without influence from the USAONDIA. See Sent. Tr. 497:8-21.

- 15 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 15 of 42

 ARGUMENT
III.

RECUSAL IS REQUIRED BECAUSE THE PRESIDING JUDGE HAS
PERSONAL KNOWLEDGE OF DISPUTED EVIDENTIARY FACTS, IS
LIKELY TO BE A MATERIAL WITNESS AT TRIAL, LIKELY WILL HAVE
TO EVALUATE TESTIMONY AND EVENTS INVOLVING HER HUSBAND’S
LAW FIRM, AND BECAUSE OF A GENERAL APPEARANCE OF
IMPROPRIETY.
A.

The Presiding Judge Has Personal Knowledge of Disputed, Material Facts
Surrounding Her Ex Parte Communications with the USAO-NDIA, and Thus
Recusal Is Mandated Under 28 U.S.C. §455(b)(1).

The government‘s Answer to the § 2255 petition places the substance of ex parte
communications between the USAO-NDIA and the Presiding Judge squarely at issue. The
government alleges that Mr. Rubashkin‘s trial counsel already had all pertinent information
regarding the ex parte communications prior to trial, and in any event the nature of the
communications did not warrant recusal. (App. 111-112.) Establishing the truth or falsity of
these allegations will require, in the first instance, a determination of what the communications
were. This is a purely factual issue of which the Presiding Judge has personal knowledge—
indeed, she is the key participant.
In orders denying defendant de la Rosa-Loera‘s recusal motion and Mr. Rubashkin‘s
Rule 33 motion, the Presiding Judge made numerous factual assertions about her involvement
with the prosecution in Mr. Rubashkin‘s case. Some of these assertions are in arguable conflict
with other information in the record. None were sworn. For example, the ICE documents
indicate that the Presiding Judge received numerous briefings over a six month period,
including a briefing on charging strategies. These documents arguably conflict with statements
by the Presiding Judge that she received only limited logistical information. Compare, e.g.,
Rule 33 Order at 4-6, 19 with the ICE documents (App. 8-48.)

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 Similarly, an email identifies the Presiding Judge as a ―stakeholder‖ in the ICE
operation. The word ―stakeholder‖ has a common meaning that indicates more than mere
logistical cooperation. See Merriam-Webster Dictionary (―stakeholder. n. . . . 2. One that has a
stake in an enterprise.‖). Based on orders and opinions written to date, the Presiding Judge
presumably disagrees with the characterization of herself as a ―stakeholder‖ in the operation.
See, e.g., Rule 33 Order at 19. The fact remains, however, that the word ―stakeholder‖ was
used, and thus a factual determination should be made concerning the appropriate
interpretation of the email. See, e.g., Hurles v. Ryan, 706 F.3d 1021, 1039 (9th Cir. 2013)
(―Even worse, [the trial judge] found facts based on her untested memory of the events, putting
material issues of fact in dispute.‖)
Resolving these apparent conflicts in the evidence will be crucial to determining
whether, as the government alleges, Mr. Rubashkin‘s trial counsel already had full awareness
of the pre-trial ex parte communications and, if so, whether those communications were
insufficient to warrant recusal. But no judge, no matter how well intentioned, should be put in
the position of weighing his or her own recollection of disputed facts against the recollection
of others.

See Hurles, 706 F.3d at 1039 (remanding post-conviction relief matter for

evidentiary hearing where ―the facts [the trial judge] ‗found‘ involved her own conduct, and
she based those ‗findings‘ on her untested memory and understanding of the events‖). Indeed,
in the Rule 33 Order, the Presiding Judge acknowledged that although she did not recall
learning of a potential ICE enforcement action until December 2007, there was ―reliable
documentation‖ indicating her awareness as early as October 2007. Id. at 4, fn. 4.
In effect, the Presiding Judge has been transformed from a judge into a material witness.
Her assertions regarding pre-raid ex parte communications may prove accurate, but up to this

- 17 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 17 of 42

 point none have been subject to verification, clarification, or cross examination. See In re
Murchison, 349 U.S. 133, 138 (1955) (due process violation existed where judge ―called on his
own personal knowledge and impression of what had occurred in the grand jury room and his
judgment was based in part on this impression, the accuracy of which could not be tested by
adequate cross-examination‖).

Because the assertions go to the heart of Mr. Rubashkin‘s

constitutional claim regarding the violation of his due process rights, they cannot be accepted at
face value. The Presiding Judge‘s unsworn statements, like the unsworn statements of any other
witness, must be evaluated by a neutral judge and fully developed and evaluated in open court to
determine whether the federal government obtained Mr. Rubashkin‘s conviction in violation of
his constitutional rights. Id.
Moreover, the pre-raid ex parte communications are not the only ex parte
communications at issue in this case. On April 23, 2010, one week before the first day of Mr.
Rubashkin‘s sentencing hearing, government counsel sent an email to Mr. Rubashkin‘s trial
counsel disclosing the existence of investigations into possible threats against the Presiding
Judge that ―are or appear to be connected to [Mr. Rubashkin‘s] case.‖ See App. 95-96. The
email stated that ―[t]he United States Attorney‘s Office for the Northern District of Iowa is
recused from these investigations because they involve a Northern District Judge.‖

Id.

Nonetheless, according to government counsel‘s email, the Presiding Judge ―expressed concern
to the United States Marshal‘s Service and our office’s management about the progress of these
investigations.‖ Id. (emphasis added).
There is, of course, nothing wrong with the Presiding Judge communicating with law
enforcement officers and prosecutors who are assigned to investigate possible threats against her.
The problem is that the USAO-NDIA was not assigned to investigate the threats, but rather was

- 18 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 18 of 42

 recused. Thus, the Presiding Judge engaged in ex parte communications with the USAO-NDIA
regarding possible threats that ―are or appear to be connected to [Mr. Rubashkin‘s] case‖ just one
week before Mr. Rubashkin‘s sentencing despite the USAO-NDIA having no role in the
investigation of those threats. This has the appearance of impropriety. See Haller v. Robbins,
409 F.2d 857, 858 (1st Cir. 1969) (reversing dismissal of habeas petition and remanding for
evidentiary hearing regarding whether judge‘s ex parte communication with prosecutor at
sentencing constituted a due process violation). Moreover, because the ex parte communications
were not connected to the Presiding Judge‘s performance of official duties, there can be no
question that they are extrajudicial. See United States v. Greenspan, 26 F.3d 1001, 1006 (10th
Cir. 1994) (information obtained by judge from law enforcement agencies regarding threat ―is
properly characterized as an ‗extrajudicial source‘‖).
The nature and substance of the pre-sentencing ex parte communications are highly
relevant to Mr. Rubashkin‘s § 2255 motion. Even if, as the government alleges, the pre-raid ex
parte communications were insufficient to warrant recusal of the Presiding Judge, the existence
of later ex parte communications may have had the ―cumulative effect‖ of requiring recusal. See
United States v. Amico, 486 F.3d 764, 775-76 (2d Cir. 2007) (recusal required on the basis of the
―cumulative effect‖ of events); see also Kyles v. Whitley, 514 U.S. 419, 436 (1995) (materiality
of suppressed evidence is ―considered collectively, not item by item‖).

Indeed, it is not

unprecedented for recusal to be required at sentencing even if it was not required at trial. See
United States v. Jordan, 49 F.3d 152, 159-60 (5th Cir. 1990) (affirming conviction but vacating
sentence, and ordering the assignment of a new judge to the re-sentencing). But trial counsel
never had the opportunity to explore the matter because the USAO-NDIA never disclosed the

- 19 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 19 of 42

 full extent of the pre-raid communications in the first place. Nor has the government ever
disclosed the pre-sentencing ex parte communications themselves.
The pre-sentencing ex parte communications also may shed light into the nature and
meaning of the pre-trial ex parte communications. Cf. United States v. Wonderly, 70 F.3d 1020,
1023-24 (8th Cir. 1995) (holding in context of Fed. R. Evid. 404(b) that subsequent acts are
admissible to determine a person‘s intent at an earlier time). Mr. Rubashkin has alleged that the
pre-trial communications were sufficiently extensive and detailed to raise questions about an
appearance of bias or partiality—in essence, they raise the appearance that the Presiding Judge
was ―on the same team‖ as the government. The government and the Presiding Judge deny this.
However, the fact that the Presiding Judge later chose to contact the USAO-NDIA on an ex parte
basis to discuss a matter related to Mr. Rubashkin‘s case despite the USAO-NDIA‘s recusal from
that matter reinforces the notion that the two had a collaborative relationship. See United States
v. Barnwell, 477 F.3d 844, 851 (6th Cir. 2007) (holding that defendant‘s due process rights were
violated by ex parte communications between the judge and prosecution during which they
―worked together in a spirit of cooperation‖).
Under these circumstances, factual investigation is necessary into issues with the
Presiding Judge at the center and regarding which the Presiding Judge has personal knowledge
obtained in an extrajudicial capacity. See United States v. Greenspan, 26 F.3d 1001, 1006 (10th
Cir. 1994) (judge‘s awareness of threat ―is properly characterized as an ‗extrajudicial source‘‖).
Recusal is therefore required under § 455(b)(1).
B.

Recusal Is Required Under 28 U.S.C. § 455(b)(5) Because the Presiding Judge
Is Likely to Be a Material Witness.

Rubashkin filed his federal petition under 28 U.S.C. § 2255. ―The Rules governing
section 2255 petitions make it abundantly clear that the judge may direct that the record be

- 20 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 20 of 42

 expanded to include letters, documents, exhibits, answers under oath to interrogatories, requests
for admission, and affidavits.‖ United States v. Goodman, 590 F.2d 705, 713 (8th Cir. 1979).
The court has the discretion to order discovery ―in the form of interrogatories, requests for
admission, documents and depositions.‖

Id.

The court may then determine whether an

evidentiary hearing is required ―to determine the merits‖ of the case. Green v. United States, 262
F.3d 715, 716 (8th Cir. 2001). The district court‘s decision to deny a section 2255 petition
without an evidentiary hearing is reviewed de novo. The appellate court will affirm that decision
only if ―the motions and the files and the records of the case conclusively show that the [movant]
is entitled to no relief.‖ Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992)
(alteration in the original).
Based upon allegations in this recusal motion and the § 2255 petition, a judge who was
not involved in, and had no firsthand knowledge of, the underlying facts would need to elicit
additional information to determine whether the failure by the USAO-NDIA to provide the
defense with full facts and details of pre-trial and pre-sentencing ex parte communications
violated Mr. Rubashkin‘s due process rights. That determination cannot be made without a
clear understanding of what those communications entailed. An uninvolved judge would
therefore seek to expand the record through, inter alia, depositions and an evidentiary hearing,
which may require the Presiding Judge‘s sworn testimony and will, under any circumstance,
require factual findings regarding communications to which the Presiding Judge was a party.
If the Presiding Judge continues to preside over this § 2255 action, she alone will determine
whether the expansion of the record is necessary to assess the propriety of her own conduct –
that is, she will decide whether to investigate herself.

Courts have recognized that it is

impossible for any judge in that position to make such a determination free from the impulse to

- 21 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 21 of 42

 reflexively defend the integrity of his or her conduct.5 Amico, 486 F.3d at 776 (finding district
court‘s failure to recuse to be reversible error because a disinterested observer would believe
that the judge‘s handling of issues relating to his personal communications with a key witness
―was intended to protect his own reputation‖ and that the judge ―had knowledge concerning
potential evidence in the case and was permitting his concerns surrounding such knowledge to
affect the way he conducted the proceedings‖).
The likelihood that the Presiding Judge will be a witness mandates her disqualification
under §455(b)(5), which provides that a judge ―shall‖ disqualify herself where she ―[i]s to the
judge‘s knowledge likely to be a material witness in the proceeding.‖ See also Flamm Decl.,
¶51 (App. 580-581) (a reasonable person would know that by relying on her own unsworn
testimony, the Presiding Judge placed herself in the position of becoming a potential witness);
United States v. Scrushy, 721 F.3d 1288, 1299 (11th Cir. 2013) (noting that section 455(b)
requires recusal where the judge ―acquired personal knowledge of disputed evidentiary facts
and was likely to be a material witness in the proceeding,‖ but finding recusal was not required
because the judge resolved the disputed facts in the defendant‘s favor‖); United States v.
Rivera, 634 F. Supp. 204, 210 (S.D.N.Y. 1986) (―There is no doubt that if this Court were to
be a witness at a hearing, recusal would be necessary‖); State v. Bennett, 520 So.2d 1095, 1098
5

There is no judicial privilege protecting a judge from being subpoenaed as a witness. United
States v. Roebuck, 271 F.Supp.2d 712, 721 (D.C.V.I. 2003). ―[J]udicial immunity was not
designed to insulate the judiciary from all aspects of public accountability.‖ Dennis v. Sparks,
449 U.S. 24, 31 (1980), citing O’Shea v. Littleton, 414 U.S. 488 (1974). There is no ―rule
generally exempting a judge from the normal obligation to respond as a witness when has
information material to a criminal or civil proceeding.‖ Id., citing United States v. Nixon, 418
U.S. 683, 705-07 (1974). See Tyler v. Swenson, 427 F.2d 412, 414 (8th Cir. 1970) (―A
member of the judiciary has no peculiar competence in factual recollection of unrecorded
events …. A party should be permitted to test a judge‘s recollection as a witness presenting
factual material testimony, as he would any other witness upon cross-examination‖).

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 (Ct. App. La. 1987) (―It would not be feasible for Judge Broyles to sit in the witness chair and
the judge‘s chair at the same time.‖); Collins v. State, 141 Ga. App. 121, 121 (Ct. App. Ga.
1977) (reversing for trial judge‘s failure to recuse where trial judge himself provided the
crucial testimony to convict defendant); State ex. Rel. Smith v. Wilcoxen, 312 P.2d 187, 188
(Ct. App. Okla. 1957) (recusal required where trial judge ―will be a material witness‖).
C.

Recusal Is Necessary Because of the Bradshaw Fowler Law Firm‘s Involvement
in Representing Rubashkin-Related Entities in Matters Directly Linked to this
Case.

The Presiding Judge‘s husband is a senior partner with the Bradshaw Fowler law firm.
See United States v. Miell, 2008 WL 974843 at *1, No. 07-CR-101-LRR, (April 8, 2008). The
Bradshaw Fowler law firm represented four different Rubashkin-related entities in bankruptcy
proceedings during the pendency of Mr. Rubashkin‘s criminal case. The fee petitions submitted
by the Bradshaw Fowler firm in those cases reflect dozens of conversations and meetings with
Mr. Rubashkin. See App. 114-248. The Bradshaw Fowler firm identified Mr. Rubashkin as
―one of the Debtor‘s primary liaisons with [Bradshaw Fowler]‖ and stated that Mr. Rubashkin
played an active role in the bankruptcy cases ―on almost a daily basis.‖ See App. 251.
The bankruptcy proceedings overlapped heavily with Mr. Rubashkin‘s criminal case,
particularly with respect to sentencing. The Bradshaw Fowler fee petitions reflect numerous
conversations with Mr. Rubashkin‘s criminal defense attorneys regarding ―strategy,‖ as well as a
conversation regarding the ―bankruptcy implications‖ of the Presiding Judge‘s sentencing order.
See App. 137, 155, 156, 160, 177, 190, 204, 240. The fee petitions reflect that Bradshaw Fowler
attorneys received fees for their assistance in connection with Mr. Rubashkin‘s criminal case.
See App. 114-248. The Rubashkin entities were major clients of the Bradshaw Fowler firm, as
ten different Bradshaw Fowler attorneys billed time to the bankruptcy matters, as well as two law

- 23 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 23 of 42

 clerks and four legal assistants.6 See App. 121, 128, 132, 147, 159, 166, 176, 186, 193, 200, 202,
208, 219, 223-224, 234, 243, 246, 248. This constitutes nearly 25% of the attorneys in the firm.
See App. 295.
Counsel for Mr. Rubashkin in this case has had a lengthy privileged conversation with a
Bradshaw Fowler attorney (Mr. Goetz) regarding this § 2255 proceeding and anticipates that the
attorney will continue to provide assistance regarding legal and factual matters.
The involvement of the Bradshaw Fowler firm stems from its representation of
companies owned by Mr. Rubashkin and his family members, including Best Value and
Cottonballs.

In this § 2255 proceeding, Mr. Rubashkin has alleged that the government

improperly interfered with the relationship between Agriprocessors and both Best Value and
Cottonballs, thus driving down the value of Agriprocessors in bankruptcy and driving up his loss
amount at sentencing. See § 2255 Petition at pp. 12-14, 36. Bradshaw Fowler attorneys likely
have firsthand information regarding these disputed factual issues, as fee petitions submitted by
Bradshaw Fowler during bankruptcy proceedings reveal dozens of phone calls and
communications between the firm‘s attorneys and Dan Childers or Paula Roby, the attorneys for
the Agriprocessors Trustee. See App. 115-116, 124, 144, 153, 182-183, 196, 197-198, 207, 212216, 226-227, 229, 232, 237-238, 242.

The Bradshaw Fowler communications with Mr.

Childers and Ms. Roby surely involved, at least in part, the restrictions placed by the government
on the ability of Agriprocessors to conduct business with Best Value and Cottonballs.
At a minimum, an appearance of impropriety arises when a judge will have to address
events occurring during her husband‘s law partners‘ representation of significant clients in
6

The Presiding Judge‘s husband was not among the attorneys who billed time to the bankruptcy
matters.

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 matters closely related to the case. See United States v. Miell, No. 07-CR-101-LRR, 2008 WL
974843 (N.D. Iowa April 8, 2008) (granting recusal motion in light of close connection between
criminal case and matter involving spouse‘s law firm, even though law firm did not appear in the
criminal case); cf. Hadler v. Union Bank & Trust Co. of Greensburg, 765 F. Supp. 976, 978-79
(S.D. Ind. 1991) (presiding judge recused himself under § 455(a) in light of personal relationship
with material witness); United States v. Ferguson, 550 F. Supp. 1256, 1260 (S.D. N.Y. 1982)
(granting motion for recusal under § 455(a) where judge‘s former law clerk was material
witness). The status of the Presiding Judge‘s husband as a partner in the Bradshaw Fowler firm
reinforces the need for recusal. See Potashnick v. Port City Const. Co., 609 F.2d 1101, 1113 (5th
Cir. 1980) (―[A] partner‘s interest in the outcome of any matter handled by his law firm is
substantially greater than that of an associate or an employee.‖). So, too, does the fact that
nearly 25% of the firm‘s attorneys participated in representing Rubashkin-related entities. See
SCA Services, Inc. v. Morgan, 557 F.2d 110, 116-17 (7th Cir. 1977) (likelihood that judge‘s
brother‘s law firm ―will earn substantial legal fees in this matter‖ warranted recusal even though
brother did not personally appear). Finally, the expected continued involvement of at least one
Bradshaw Fowler attorney in assisting Mr. Rubashkin‘s counsel warrants recusal, particularly
when that attorney or others at his firm likely has firsthand knowledge regarding disputed issues
and may even be asked to testify as a witness.
The fact that this conflict arguably works in favor of Mr. Rubashkin – i.e., the Bradshaw
Fowler firm effectively represented him and his companies – does not weaken the appearance of
partiality. A party in Mr. Rubashkin‘s position ―might legitimately be concerned that the judge
will ‗bend over backwards‘ to avoid any appearance of partiality, thereby inadvertently favoring
the opposing party.‖ Pashaian v. Eccelston Properties, Ltd., 88 F.3d 77, 83 (2d Cir. 1996).

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 Moreover, the history between the Rubashkin entities and the Bradshaw Fowler firm is mixed—
although the Bradshaw Fowler firm saw the Best Value bankruptcy through to the end, the firm
was replaced as counsel in the Nevel bankruptcy and replacement counsel challenged Bradshaw
Fowler‘s fees.
D.

Recusal Also Is Appropriate Under § 455(a) In Light of the Appearance of
Impropriety.

Recusal also is appropriate because the totality of circumstances – including numerous ex
parte communications with the USAO-NDIA prior to the Agriprocessors raid; additional ex
parte communications with the USAO-NDIA immediately prior to Mr. Rubashkin‘s sentencing;
resolution of disputed facts based on her personal recollection; and prominent involvement of the
Bradshaw Fowler law firm – creates an unavoidable risk of partiality.
A judge must recuse himself or herself ―in any proceeding in which [her] impartiality
might reasonably be questioned.‖ 28 U.S.C. § 455(a). Section 455(a) is a ―catchall‖ provision,
implementing the principle that ―what matters is not the reality of bias or prejudice but its
appearance.‖ Liteky v. United States, 510 U.S. 540, 548 (1994). Even a judge subjectively
convinced of his or her impartiality may be disqualified to preserve the appearance or propriety.
―Thus, in a situation where a reasonable person might question the judge‘s ability to be impartial,
she must recuse herself even if she subjectively knows that she has no bias.‖ Flamm Decl., ¶ 14
(App. 568), citing, e.g., United States v. Honken, 381 F. Supp.2d 936, 970 (N.D. Iowa 2005);
Muhammad v. Rubia, No. C08 3209MMC(PR), 2009 WL 281947 at *2 (N.D. Cal. 2009) (―[I
hold] no bias or prejudice against the plaintiff herein. Nevertheless, as a reasonable person
might conclude that the facts alleged by plaintiff create an appearance of bias or prejudice, the
Court, in an abundance of caution, will grant the motion‖).

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 The Eighth Circuit has given the language of § 455(a) a practical interpretation. ―The
question is ‗whether the judge‘s impartiality might reasonably be questioned by the average
person on the street who knows all the relevant facts of a case.‘‖ United States v. Dehghani, 550
F.3d 716, 721 (8th Cir. 2008) (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en
banc)); see also United States v. Beale, 574 F.3d 512, 519 (8th Cir. 2009). In making this
determination, the court is to take into consideration all circumstances, both public and private.
See United States v. Walton, No. 07-CR-14-LRR, 2007 WL 1662332 at *1-2 (N.D. Iowa June 5,
2007).
In implementing the ―average person on the street‖ test, the Eighth Circuit does not
require the average person to be convinced of the judge‘s partiality in order to warrant recusal.
Rather, recusal is required if a reasonable person ―would harbor doubts about the judge‘s
impartiality.‖ See Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 905 (8th Cir. 2009) (internal
punctuation omitted).
Courts have recognized several circumstances in which this standard is satisfied and
recusal is required:
First, recusal is warranted when there have been ex parte contacts between the judge and
one party to the case. See Flamm Decl., ¶ 32 (App. 573-574),. ―[N]ot only is it a gross breach of
the appearance of justice when the defendant‘s principal adversary is given private access to the
ear of the court, it is a dangerous procedure.‖ Haller v. Robbins, 409 F.2d 857, 859 (1st Cir.
1969); United States v. Hildebrand, 928 F. Supp. 841, 854 (N.D. Iowa, 1996). That breach is
all the more egregious when that adversary is a prosecutor, with the weight and credibility of
government office behind him. United States v. Earley, 746 F.2d 412, 416 (8th Cir. 1984).

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 Second, when a judge appears to be invested in the case based on extrajudicial interests
or associations, there is an appearance of partiality. See United States v. Arnpriester, 37 F.3d
466, 467 (9th Cir. 1994); cf. United States v. Bauer, 19 F.3d 409, 414 (8th Cir. 1994). Likewise,
recusal may be necessary if the public perceives the judge to be excessively close with one side
in the case. See also Edgar, 93 F.3d at 260; Moran, 296 F.3d at 649. And, where the judge
appears to have given ―advice‖ or ―assistance‖ to the prosecution – especially ex parte – courts
have long demanded recusal. See, e.g., Schmidt v. United States, 115 F.2d 394, 397-98 (6th Cir.
1940); Bauer, 19 F.3d at 414.
Third, an appearance of partiality is reinforced when, as here, a judge fails to disclose
evidence that may warrant recusal. ―[A] judge is expected to candidly disclose any and all
information which the parties might consider relevant to the question of disqualification, even if
she believes there is no basis for recusal.‖ Flamm Decl., ¶ 36 (App. 575), citing In re M.C., 8
A.3d 1215, 1226, 1231 (D.C. 2010). Thus, in this instance, a reasonable person would have
expected full disclosure, at the outset of the proceedings, of the details of the Court‘s ex parte
communications with law enforcement authorities.

See Flamm Decl., ¶ 39 (App. 576).

Accordingly, ―the failure of the judge and prosecution to notify defense counsel, at their first
court appearance, that the Court had communicated with the [U.S. Attorney‘s Office] about the
raid … inevitably gave rise to the very appearance of partiality that § 455(a) was designed to
avoid.‖ Flamm Decl., ¶ 40 (App. 576-77). See Liljeberg, 486 U.S. at 866 (emphasizing the
importance of prompt disclosure). The appearance of partiality becomes even worse when a
judge later engages in further ex parte communications about matters that ―are or appear to be
related to [the] case,‖ again without disclosing those communications to defense counsel. See
Flamm Decl., ¶ 58 (App. 583).

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 The Eighth Circuit has explicitly condemned the failure to disclose the facts that are
potentially relevant to recusal. In Moran, the judge had a social relationship with one of the
parties to the case, which was itself cause for concern. But the en banc court found ―particularly
worrisome the district court‘s failure to disclose this conflict himself.‖ 296 F.3d at 649. In light
of that association and non-disclosure, the court vacated the district court decision and remanded
―with the suggestion that it revisit and more thoroughly consider and respond to Moran‘s recusal
request.‖ Id. See ABA Model Code of Judicial Conduct, Rule 2.11, cmt. [5] (2007).
Fourth, for a judge to learn facts about the case from extrajudicial sources severely
undermines the integrity of the adversarial process. That is why courts have insisted on recusal
when judges have communicated, off the record, with witnesses or appointed experts. E.g.,
United States v. Beierman, 584 F. Supp.2d 1167, 1178 (N.D. Iowa 2008) (internal citations
omitted); Edgar v. K.L., 93 F.3d 256, 259-62 (7th Cir. 1996). Eighth Circuit case law strongly
condemns such interactions. E.g., Gentile v. Mo. Dep’t of Corrs. & Human Res., 986 F.2d 214,
217 (8th Cir. 1993); Ryan v. Clarke, 387 F.3d 785, 793 (8th Cir. 2004); see also Craven, 239
F.3d at 103 (―When a judge receives information that does not enter the record, the reliability of
that information may not be tested through the adversary process‖).
These themes coalesce in this case:
First, it is undisputed that the Presiding Judge communicated ex parte with law
enforcement authorities who were investigating and would ultimately raid the plant that,
according to the memoranda, was under the direction of Mr. Rubashkin. These communications
focused on the raid that led to Mr. Rubashkin‘s prosecution and touched upon the merits of the
eventual criminal cases, including ―charging strategies‖ to be pursued by the prosecution. The

- 29 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 29 of 42

 Presiding Judge then engaged in further ex parte communications with the USAO-NDIA shortly
before Mr. Rubashkin‘s sentencing on a matter related to his case.
Second, the repeated ex parte meetings between the judge and the prosecutors create at
least the appearance that they had become excessively close and were working in tandem. See
Edgar, 93 F.3d at 260; Bauer, 19 F.3d at 414. The description of the Presiding Judge as a
―stakeholder‖ in the operation and reference to her commitment to ―support the operation in any
way possible‖ would certainly give a ―reasonable person … a justified doubt as to [her]
impartiality.‖ Cooley, 1 F.3d at 995; Sentis Group, 559 F.3d at 905. Moreover, the Presiding
Judge‘s decision to contact the USAO-NDIA on an ex parte basis shortly before Mr.
Rubashkin‘s sentencing to express concerns about the progress of a threat investigation that, by
the government‘s own admission, was related or appeared to be related to Mr. Rubashkin‘s case
and regarding which the USAO-NDIA was recused reinforces the appearance that she considered
herself to be aligned with the USAO-NDIA.
Third, a reasonable observer‘s perception of possible bias may be reinforced by the
Presiding Judge‘s arguable failure to disclose (a) some of the facts surrounding her role in preraid planning, and (b) all of the facts surrounding the pre-sentencing ex parte communications
with the USAO-NDIA.

See, e.g., Order at 5-6, United States v. De La Rosa-Loera, No.

08-CR-1313 (N.D. Iowa Aug. 13, 2008) (App. 67-68) (describing her role as normal logistical
cooperation). As in Liljeberg, the failure – especially when responding to a recusal request – to
acknowledge the undisclosed facts is additional evidence that would lead an objective observer
to question the appearance of impartiality. See Liljeberg, 486 U.S. at 865-67.
Fourth, at these meetings, updates on the status of the investigation made the Presiding
Judge privy to ―information that [did] not enter the record‖ and therefore ―may not be tested

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 through the adversary process.‖ Craven, 239 F.3d at 103; Beiermann, 584 F. Supp 2d at 1178.
That these meetings were off-the-record, not transcribed, means they were ―extrajudicial.‖
Edgar, 93 F.3d at 259; See Bauer, 19 F.3d at 414. In Jones v. Luebbers, 359 F.3d 1005 (8th
Cir. 2004), the Eighth Circuit noted that where allegations of bias arise from ―closed
proceedings that evade outside review, the appearance of partiality is great, application of the
rule is simple, and due process may require recusal.‖ Id. at 1013.
The pre-sentencing ex parte communications between Presiding Judge and the USAONDIA illustrate the problem. As noted above, those ex parte communications arose from an
investigation of possible threats against the Presiding Judge that ―are or appear to be related to
[Mr. Rubashkin‘s] case.‖ See App. 95-96. The USAO-NDIA was recused from the threat
investigation, yet the Presiding Judge chose to reach out to the USAO-NDIA anyway shortly
before Mr. Rubashkin‘s sentencing hearing to express concern regarding the progress of the
investigation. The decision to reach out to the USAO-NDIA, despite its recusal from the
investigation, creates the appearance that the Presiding Judge believed herself to be ―on the same
team‖ as the USAO-NDIA with respect to matters that ―are or appear to be related to [Mr.
Rubashkin‘s] case.‖ See United States v. Barnwell, 477 F.3d 844, 851 (6th Cir. 2007) (holding
that defendant‘s due process rights were violated by ex parte communications between the judge
and prosecution during which they ―worked together in a spirit of cooperation‖); Greenspan, 26
F.3d at 1007 (concluding that ―it is obvious to us that a reasonable person could question the
judge‘s impartiality‖ where the judge learned of a threat shortly before sentencing and was so
clearly affected by it that he expressed a desire to ―get [the defendant] into the penitentiary
system as quickly as possible‖).

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 Indeed, there are only two apparent reasons why the Presiding Judge would reach out to
the USAO-NDIA to express concerns about the threat investigation despite that office‘s recusal:
(1) she wanted to enlist the support of USAO-NDIA in trying to convince law enforcement
agents to move the investigation along; or (2) she wanted to express frustration to a listener she
perceived to be sympathetic. Either one raises serious appearance questions about whether the
Presiding Judge was too close with the USAO-NDIA, and therefore whether she should have
presided over Mr. Rubashkin‘s sentencing even if, as the government alleges, she properly
presided over his trial. Mr. Rubashkin is entitled to flesh this issue out before a judge who was
not involved in the underlying events.
E.

The Government‘s Recent Assertion of a Conflict of Interest on the Part of One
of Mr. Rubashkin‘s Attorneys Provides Yet Another Reason for Recusal.

The need for recusal grew even more acute this month in light of the USAO-NDIA
informing one of Mr. Rubashkin‘s attorneys that it believes a conflict of interest exists as a result
of his prior service as an Assistant United States Attorney for the Southern District of Iowa
during the time of the threat investigation in April 2010. The alleged conflict relates to counsel‘s
knowledge (or lack thereof) of confidential information relating to the threat investigation and is
fleshed out in detail in the Declaration of Stephen H. Locher (App. 590-593), which, in an
abundance of caution, is filed under seal. The USAO-NDIA asserts that the conflict is between
counsel and Mr. Rubashkin and is waivable. See Attachment A to Declaration (letter from
government counsel asserting the existence of a conflict under Iowa Rule Prof. Conduct
32.1.7(a)(2) at App. 594-597). Nonetheless, for unclear reasons, the USAO-NDIA has insisted
that counsel provide an ―assurance‖ to the government that Mr. Rubashkin has provided
―informed consent‖ to the conflict. See id. The USAO-NDIA stated that it planned to disclose

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 to the Court the existence of the alleged conflict and counsel‘s ―assurance‖ of having received
informed consent. See id.
Unlike a criminal case, where the Sixth Amendment may require the government to take
steps to ensure that a defendant is adequately represented, ―[t]here is . . . no right to counsel in
either state or federal post-conviction relief proceedings.‖ Pollard v. Delo, 28 F.3d 887, 888 (8th
Cir. 1994). ―Where there is no constitutional right to counsel there can be no right to effective
assistance of counsel.‖ Id. ―Since there is no right to effective assistance of counsel . . .
ineffective assistance of counsel cannot serve as a cause for petitioner‘s default.‖ Id. Thus, there
is no reason for the government to interject itself between a § 2255 petitioner and his counsel or
raise the matter to the Court‘s attention, even if the government perceives a conflict of interest to
exist.
The USAO-NDIA‘s demands have created yet another reason for recusal. A conflict
only exists if counsel: (1) possesses information, (2) that would be helpful to Mr. Rubashkin, but
(3) which counsel cannot share with Mr. Rubashkin in light of counsel‘s ongoing duty of secrecy
to the government. See Iowa Rule of Prof. Conduct 32.1.7(a)(2) (―A concurrent conflict of
interest exists if . . . (2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer‘s responsibilities to another client, a former client, or a
third person or by a personal interest of the lawyer.‖). If any one of these three pieces is missing,
no conflict exists. For example, if counsel possesses secret information that is not helpful to Mr.
Rubashkin, there would be no ―significant risk‖ of counsel‘s representation of Mr. Rubashkin
being ―materially limited‖ by his responsibilities to the government because he would have no
reason to disclose the information.

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 The USAO-NDIA has asserted that a conflict does, in fact, exist. Accordingly, the
USAO-NDIA must know there is something helpful to Mr. Rubashkin‘s § 2255 case that
occurred during the threat investigation. Moreover, the government‘s stated intention of filing a
notice with the Court implies that the government intends for the Court to do something about
the alleged conflict—either to condone the continued presence of the attorney in the case, or to
disqualify him. But the Presiding Judge‘s personal knowledge of undisclosed facts will be at the
center of that decision. Indeed, the Presiding Judge presumably knows the information that gave
rise to the USAO-NDIA‘s allegation of a conflict in the first place.
For reasons stated in the attached Declaration (App. 590-597), which, in an abundance of
caution, is filed under seal, counsel believes no conflict exists and no ―informed consent‖ is
necessary. Counsel further believes that even if a waivable conflict did exist, the USAO-NDIA
would have no right to demand ―assurances‖ that informed consent had been provided, nor
would disclosure to the Court be necessary or appropriate. See Iowa Rules of Professional
Conduct at Preamble, note 10 (―The legal profession is largely self-governing.‖); id. at note 20
(―[T]he purpose of the rules can be subverted when they are invoked by parties as procedural
weapons. The fact that a rule is a just basis for a lawyer‘s self-assessment, or for sanctioning a
lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a
collateral proceeding or transaction has standing to seek enforcement of the rule.‖). Nonetheless,
because the government insisted that it would notify the Court of the alleged conflict, counsel is
compelled to raise the issue to the Court‘s attention himself. But now that the government has
forced this disclosure, the Presiding Judge is placed in the position of determining whether
something should be done about an alleged conflict relating to confidential information regarding

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 her own extra-judicial actions or statements. No judge should be forced into this situation, and
recusal is appropriate.
IV.

THE CONCERNS EXPRESSED BY MANY OF THE NATION’S LEADING
EXPERTS IN JUDICIAL ETHICS, FORMER FEDERAL PROSECUTORS,
FORMAL FEDERAL JUDGES, AND SEVERAL DOZEN CURRENT
MEMBERS OF CONGRESS FURTHER DEMONSTRATE THAT A
DISINTERESTED OBSERVER WOULD FIND RECUSAL APPROPRIATE.
A.

Members of Congress, Former DOJ Officials, and Others Expressed Disapproval
of Chief Judge Reade‘s Actions.

The Presiding Judge‘s opinion denying Mr. Rubashkin‘s Rule 33 motion was met with
disapproval from leaders of the law enforcement community, academia, and Congress –
including 76 law professors and former Attorneys General, Assistant Attorneys General, U.S.
Attorneys, and former state and federal judges who wrote to the Department of Justice requesting
an investigation of the ―troubling evidence‖ relating to the ex parte communications. (App. 323).
The condemnation extended across the political spectrum to include three former Deputy
Attorneys General from the Reagan, Clinton and George W. Bush administrations, and seventeen
United States Attorneys from the Ford, Carter, Reagan, George H. W. Bush, Clinton, and George
W. Bush administrations – including James H. Reynolds, formerly the United States Attorney for
the Northern District of Iowa. Clearly, the average man on the street, when informed of the
disapproval from so many eminent members of the judicial system, would, at a minimum
―harbor doubts‖ as to the ability of the Presiding Judge to provide Mr. Rubashkin with a fair
hearing. Cf. Amico, 486 F.3d at 776 (fact that government joined in recusal motion helped to
demonstrate that a reasonable person would harbor doubts about impartiality).
A letter from Hon. Shirley M. Hufstedtler to Attorney General Holder and Solicitor
General Verrilli exemplifies this criticism. Judge Hufstedtler is a former judge of the United

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 States Court of Appeals for the Ninth Circuit and a former Secretary of Education. Judge
Hufstedtler wrote:
In all of my more than fifty years of service on all levels of state and federal
government, both as an appellate litigator and appellate Judge, the case of Sholom
Rubashkin … stands out as one of the most unjust I have come across…. I feel
strongly that the Department of Justice must stop defending the improper actions
of Judge Reade in this case. These ex parte communications were wrong and
DOJ needs to unequivocally state so. The Department must do so for the sake of
Mr. Rubashkin and justice and because if they let it go by this time, it is very
likely to recur in other cases as well.
(App. 340-341).
Additionally, six Senators (5 Republicans and 1 Democrat) and Fifty-one Congressman
(29 Democrats and 22 Republicans) sent letters to United States Attorney General Eric Holder,
and three subcommittees of the House of Representatives held hearings to probe allegations of
misconduct. The letters were written by legislators of widely disparate political ideologies,
ranging from Senator Carl Levin (D-MI) and Rep. Jerrold Nadler (D-NY and Judiciary
Committee Member) to well-known conservative Senators Rand Paul (R-KY) and Jim DeMint
(R-SC) (now president of The Heritage Foundation). The letters uniformly condemned the ex
parte communications that lie at the heart of this motion. (The letters are reproduced at App.
342-434.)
Similarly, after the Eighth Circuit affirmed Rubashkin‘s conviction on direct appeal, his
attorneys filed a petition for certiorari with the United States Supreme Court. Former U.S.
Solicitor General Seth Waxman‘s amicus brief, filed on behalf of 86 former Attorneys General,
Senior Department of Justice officials, United States Attorneys, and Federal Judges, is also
illustrative of the criticism of the Presiding Judge‘s role in the case. Concerning the appearance of
impropriety, he wrote:

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 [T]he district judge‘s numerous ex parte contacts and personal involvement with
the prosecution prior to the raid, together with the judge‘s failure to disclose the
extent of that collaboration, seriously undermined that appearance of impartiality.
The FOIA documents suggest that the district judge was intimately involved with
the planning of Agriprocessors raid. … While the full story remains unknown,
those facts that have emerged paint a deeply troubling picture that seriously
compromised the appearance of impartiality.
Brief for 86 Former Attorneys General et al. as Amici Curiae in Support of Petitioner, at 12-13,
Rubashkin v. United States, 133 S. Ct. 106 (2012) (No. 11-1203) (App. 450-451.).
Finally, many other amicus briefs were filed in conjunction with Mr. Rubashkin‘s
petition for a writ of certiorari, all critical of the Presiding Judge‘s role.7 One of these briefs,
filed by the Association of Professional Responsibility Lawyers, dealt directly with the Presiding
Judge‘s personal knowledge of disputed facts:
Judge Reade‘s justification for the admitted ex parte contacts, and her consequent
refusal to recuse herself, was plausible only if the FOIA materials were found to
be both consistent with and probative of her recollection and understanding of
these events. But these were contested matters of fact.
****
It is unthinkable for a judge to ―find‖ the facts (or ―confirm‖ facts of which she
already has personal knowledge,) especially when her own conduct and bona
fides are implicated by them. Yet … that is exactly what Judge Reade did….

7

The following additional amicus briefs were filed in connection with Mr. Rubashkin‘s petition
for a writ of certiorari in Rubashkin v. United States, ___ U.S. ___, 133 S. Ct. 106, 2012 WL
1119792 (2012) (No. 11-1203): Brief of the Washington legal Foundation et al. as Amici Curiae
in Support of Appellant, Urging Vacatur; Amicus Curie Brief on Behalf of the American Civil
Liberties Union of Iowa in Support Appellant [sic] Rubashkin‘s Request for Reversal and
Remand; Amicus Brief of National Association of Criminal Defense Lawyers (―NACDL‖) in
Support of Appellant; Brief of the Association of Professional Responsibility Lawyers (APRL) as
Amicus Curiae in Support of Petitioner; Brief of Washington Legal Foundation and Criminal Law
Scholars as Amici Curiae in Support of Petitioner; Brief of the National Association of Criminal
Defense Lawyers and the Aleph Institute, as Amici Curiae in Support of Petitioner; Brief of
Criminal-Justice and Legal-Ethics Professors as Amici Curiae in Support of Petitioner; Brief for
Justice Fellowship and Criminal Law and Sentencing Professors and Lawyers as Amici Curiae in
Support of Petitioner.

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 Brief at 6-7 (italics in original) (App. 483-484)8; see also Hurles v. Ryan, 706 F.3d 1021, 1038
(9th Cir. 2013).
B.

Ethics Experts Conclude That the Presiding Judge Was Obligated to Recuse
Herself from Presiding at Mr. Rubashkin‘s Trial

In addition to the groundswell described above, Mr. Rubashkin offered affidavits from
two of the leading experts on legal ethics in the United States and an amicus brief included a
declaration of yet a third leading expert.
1.

Mark Harrison

One affiant was Mark Harrison, past Chair of the ABA Commission to Revise the Model
Code of Judicial Conduct.9 Based on his review of the ICE documents and other relevant
information, Mr. Harrison concluded that:
Chief Judge Reade violated the provisions of the Code of Conduct (and the
comparable provisions of the 2007 Model Code) … and 28 U.S.C. § 455(a) by:
… failing to disclose the nature, substance and extent of the ex parte
communications to all parties at the earliest practicable time …; and …
participating in numerous ex parte meetings with the prosecution and other law
enforcement personnel and then failing to recuse herself from presiding over [Mr.
Rubashkin‘s] trial.
(Affidavit of Mark Harrison, ¶10; App. 512-513.)

Mr. Harrison also determined that the

Presiding Judge should have required the preparation of a complete record of the ex parte
meetings in which she participated – especially, if she wanted to preserve any possibility of
presiding at the trial. Id., ¶ 10b.10

8

The Association‘s brief was also critical of the procedure employed by the Presiding Judge to
decide the Motion for a New Trial – deciding the motion based on her own recollection and
characterization of events – which it referred to as ―the worst possible course.‖
9

The revised code was unanimously adopted by the ABA House of Delegates in February 2007.

10

Mr. Harrison‘s affidavit also details other improprieties in Judge Reade‘s conduct. (See App.
503-514).

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 2.

Stephen Gillers

The other affiant was Steven Gillers, a professor at the New York University School of
Law and one of the leading national experts in legal ethics. Professor Gillers concluded ―the U.S.
lawyers should not have participated in the ex parte meetings with the Chief Judge to the extent
that they did and, having done so, should have revealed their existence and the content of the
communications (which they should have transcribed) to Mr. Rubashkin‘s lawyers as soon as they
were identified after indictment.‖ (Affidavit of Steven Gillers, ¶ 24; App. Exh. 524.)11
3.

Geoffrey Hazard

The Brief of Criminal-Justice and Legal-Ethics Professors as Amici Curiae in support of
Mr. Rubashkin‘s certiorari petition included the declaration of another leading legal ethics
expert, Geoffrey C. Hazard, who was principal draftsman of the Code of Judicial conduct,
―which in all material respects is now codified in 28 U.S.C. § 455.‖ (Affidavit of Geoffrey C.
Hazard, ¶ 2, App. 526)12 Referring to the opinions described above, Professor Hazard states, ―I
entirely agree with the opinions of Mark Harrison concerning the conduct of Judge Reade, as
summarized in paragraph 10 of [Mr. Harrison‘s] affidavit, and I entirely agree with the opinions
of Professor Stephen Gillers concerning the conduct of the Government lawyers, as summarized
in paragraph 24 of his Affidavit.‖ Id., ¶5. Professor Hazard‘s criticisms include the scope of the
ex parte communications, the Presiding Judge‘s failure to make a record of them and her failure
to fully disclose them. Id. ¶ 6. Professor Hazard concludes that available evidence ―is certainly

11

Professor Gillers‘ affidavit also details additional, improper aspects of Judge Reade‘s handling
of the matter. (App. 515-525).
12

The Hazard Affidavit is Appendix B to the Supreme Court Brief of Criminal-Justice and
Legal-Ethics Professors as Amici Curiae in Support of Petitioner, and is reproduced in the
Appendix to this motion as App. 526-528.

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 sufficient to … create in reasonable minds a perception that the judge‘s ability to carry out
judicial responsibilities with integrity [and] impartiality is impaired.‖ Id., concluding paragraph.
4.

Richard E. Flamm

In addition to the authorities cited above, Mr. Rubashkin supplements this motion with a
declaration of Richard E. Flamm, the author of Judicial Disqualification: Recusal and
Disqualification of Judges (Banks and Jordan Law Pub. Co., 2nd ed. 2007) (―Judicial
Disqualification‖), a leading treatise on the subject, which has been relied on by a host of state
and federal courts, including the Eighth Circuit. See Declaration of Richard E. Flamm (―Flamm
Decl.‖), ¶ 5 (App. 564.), cited in, e.g., Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 665 (8th
Cir. 2003). Mr. Flamm is one of the leading authorities on the subject of legal and judicial
ethics. (Flamm Decl., ¶3.) (App. 564)
In United States v. Fazio, 487 F.3d 646, 653 (8th Cir. 2007), the Eighth Circuit held that
―the key ingredient in a §455(a) recusal case is avoidance of the appearance of impropriety, as
judged by whether the average person on the street might question the judge‘s impartiality.‖
Mr. Flamm has examined many of the relevant documents13 and offers the opinion that the
Presiding Judge‘s ex parte contacts would cause an average observer to question her impartiality.
(Flamm Decl., ¶¶11, 16, 21, 66; App. 566, 569, 571, 587.) Those doubts would be compounded
by the failure of the Court and the U.S. Attorney‘s Office to notify defense counsel, at their first
court appearance, of the ex parte communications and by the additional appearances of partiality

13

In addition to this memorandum, Mr. Flamm has reviewed, inter alia: Mr. Rubashkin‘s
Motion to Vacate; Chief Judge Reade‘s Order denying Mr. Rubashkin‘s Motion for a New Trial;
the August 4, 2010 Declaration of Nathan Lewin (submitted with the Motion for a New Trial);
the September 7, 2010 Affidavit of Mark I. Harrison (discussed above) (App. 503-514); the
August 4, 2010 Declaration of Guy Cook; and the July 15, 2011 letter to Attorney General
Holder and the Department of Justice‘s Office of Professional Responsibility (see § e.1., supra).

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 created by the pre-sentencing ex parte contacts and involvement of the Presiding Judge‘s
husband‘s law firm in representing Mr. Rubashkin‘s companies in matters closely related to his
criminal case. (Flamm Decl., ¶¶ 41, 59-61, App. 577, 583-84.)
Flamm also concludes that in assessing whether the Presiding Judge should recuse
herself, an average person would know or expect:


That while Chief Judges do have administrative duties, it is highly unusual for a
Chief Judge to meet with prosecutors in a regular basis over a period of months to
participate in planning a raid (Flamm Decl., ¶ 30, App. 573);



That as ―the only district court judge chambered in the eastern side of the district
who handles criminal felony matters,‖ Rule 33 Order at 5 n.5, Judge Reade knew
when meeting with the government that she would likely be assigned to handle any
prosecution resulting from the Agriprocessors raid (Flamm Decl., ¶ 32, App. 57374);



That the Court could have acted to assuage foreseeable concerns by having a court
reporter transcribe her meetings with the government (Flamm Decl., ¶ 33, App.
574);



That the defendant in a prosecution resulting from the Agriprocessors raid would
want to know the details of Chief Judge Reade‘s meetings with the government
(Flamm Decl., ¶ 34, 574); and



That both the U.S. Attorney‘s Office and the Court would fully disclose the details
of their meetings at the commencement of proceedings against Mr. Rubashkin
(Flamm Decl., ¶ 39, App. 576).

Mr. Flamm concludes that a reasonable person knowledgeable about the facts ―not only
‗might,‘ but almost certainly would have at least some doubts as to the Court‘s ability to
impartially preside over [Mr. Rubashkin‘s] §2255 motion.‖ (Flamm Decl., ¶ 71, App. 588-89.)
CONCLUSION
For the foregoing reasons, Sholom Rubashkin respectfully requests that the Presiding
Judge recuse herself from involvement in any further proceedings in this case pursuant to 28
U.S.C. §§455(a)(1), (b)(1) and (b)(5).

- 41 Case 2:13-cv-01028-LRR Document 13-1 Filed 01/29/14 Page 41 of 42

 BELIN McCORMICK, P.C.
By:
Stephen H. Locher
Matthew C. McDermott
666 Walnut Street, Suite 2000
Des Moines, IA 50309-3989
Telephone: (515) 283-4610; 283-4643
Facsimile: (515) 558-0610; 558-0643
Email: shlocher@belinmccormick.com
mmcdermott@belinmccormick.com
Paul Rosenberg
PAUL ROSENBERG, P.C.
1821 Ruan Center
666 Grand Avenue
Des Moines, IA 50309
Telephone: (515) 245-3828
Facsimile: (515) 247-2207
Email: prosenlaw@aol.com
ATTORNEYS FOR PLAINTIFF
SHOLOM RUBASHKIN
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon the parties to this action by serving a copy upon each
of the attorneys listed below on January 29, 2014 by

□

U.S. Mail

□

FAX

□

Hand Delivered

□

Electronic Mail

□

FedEx/ Overnight Carrier

X

CM / ECF

Sean R. Berry
Peter E. Deegan, Jr.
U.S. Attorney‘s Office
111 Seventh Avenue SE, Box 1
Cedar Rapids, IA 52401
Peter.deegan@usdoj.gov
ATTORNEYS FOR DEFENDANT
Signature:

/s/ Stephen H. Locher

BELIN\R0591\0001\01770039

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