Moshe Rubashkin, Appellant: Nicholas J. Nastasi, Philadelphia, PA.
JUDGES: Before: ALITO, FUENTES, BECKER, Circuit Judges.
OPINIONBY: FUENTES
OPINION: [*193] OPINION OF THE COURT
FUENTES, Circuit Judge.
Defendant Moshe Rubashkin appeals the entry of judgment and the imposition of a 15-month term of incarceration in connection with his plea of guilty to one count of bank fraud. Rubashkin contends that the District Court erred in considering an earlier incident in which Rubashkin was placed in an Accelerated Rehabilitation Disposition ("ARD") program as a result of his violation of the Pennsylvania Workmen's Compensation Law. According to the defendant, his participation in the ARD did not result in a disposition of guilt. In addition, he argues [**2] that the District Court erred in failing to give an explanation for its 15-month sentence. We find that the District Court did not err in considering the events surrounding Rubashkin's ARD for purposes of determining his sentence within the relevant guideline range and that the Court's statement of reasons was appropriate under 18 U.S.C. § 3553. Therefore, we will affirm the judgment of the District Court.
I.
Rubashkin was the owner and president of Montex Textiles Ltd. ("Montex"), a supplier of raw textiles material located in Allentown, PA. In August 1998, Montex opened separate payroll and general expense accounts with First Union National [*194] Bank ("First Union"). Rubashkin and another individual had signatory authority on both of Montex's accounts.
The Government's investigation revealed that between March 25, 1999 and March 30, 1999, Rubashkin attempted to deposit three checks payable to Montex, all drawn from the account of an entity named First Choice Associates, into Montex's First Union accounts. In the aggregate, the three checks totaled approximately $ 325,000. Rubashkin withdrew or used most of the funds which he attempted to deposit. Shortly [**3] thereafter, First Union learned that there were insufficient funds in the account from which the deposited checks were drawn. The fraud resulted in a loss to the bank in excess of $ 300,000.
Prior to the offense conduct in question, Rubashkin was involved in a separate punishable offense in connection with his operation of Montex. Pennsylvania law requires companies to secure worker's compensation insurance for their employees. See 77 Pa. Cons. Stat. Ann. § 501. Nevertheless, when an employee of Montex became injured and attempted to recover disability payments, it became apparent that Rubashkin, in his capacity as president of Montex, had failed to secure the required insurance. On May 4, 2001, Rubashkin was placed in an ARD program for a period of 18 months. Subsequently, he was ordered to pay $ 968 in fines, costs, and restitution.
On June 6, 2002, the defendant was charged in a one-count information with bank fraud in violation of 18 U.S.C. § 1344. Pursuant to a negotiated plea agreement, Rubashkin entered a plea of guilty to the sole count on July 31, 2002. The District Court conducted a sentencing hearing on November 6, 2002. At the hearing, the [**4] District Court accepted the parties' modification of Rubashkin's guideline offense level, which (1) eliminated the two-level enhancement for more than minimal planning, and (2) correspondingly reduced the acceptance of responsibility reduction to two levels, instead of three. The Court also denied the defendant's motion for downward departure. The Court thus determined that Rubashkin's guideline offense level was 12, with a criminal history category of I, reflecting no criminal history points. The criminal history computation was made without regard to Rubashkin's ARD. Therefore, the applicable guideline range for defendant's offense was 10 to 16 months of imprisonment.
At the sentencing hearing, the District Court also inquired into Rubashkin's ARD. See Joint App. at 27a, 39a-40a. When asked if the paragraph in the pre-sentence investigation report ("PSR") relating to his ARD was true, Rubashkin confirmed that it was. Specifically, the Court and the defendant engaged in the following colloquy:
THE COURT: Before you leave, I'd like you to take a moment and turn to page six of the presentence investigation report and read paragraph 31 to yourself. ...
THE COURT: Is [**5] that correct?
THE DEFENDANT: Yes.
THE COURT: Thank you. That's all I wanted to know.
Id. at 39a-40a.
The Court then sentenced the defendant to 15 months of imprisonment and 5 years of supervised release and ordered restitution in the amount of $ 232,936.99.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the entry of judgment and imposition of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to the [*195] extent that Rubashkin's appeal alleges errors of law.
III.
Rubashkin's primary argument on appeal is that the District Court erred in considering his May 2001 ARD in determining his sentence. n1 In doing so, Rubashkin relies heavily on § 4A1.2(f) of the United States Sentencing Guidelines ("USSG"). At the outset, we note that neither the Probation Office, nor the District Court violated § 4A1.2(f) in the computation of his criminal history category. Section 4A1.2 is titled "Definitions and Instructions for Computing Criminal History," and subsection fmerely provides that, "diversion from the judicial process without [**6] a finding of guilt (e. g., deferred prosecution) is not counted [in the computation of criminal history]." USSG § 4A1.2(f). In the present case, both the Probation Office and the District Court recognized that Rubashkin's ARD was a diversionary disposition within the meaning of § 4A1.2(f), and therefore, the defendant was not assessed any criminal history points. In fact, Rubashkin cannot point to any error in the computation of his criminal history category.
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n1 Rubashkin's argument on appeal requires some clarification. He contends that the District Court actually considered his ARD and that the ARD was a factor in the Court's decision to sentence him at the high end of the applicable guideline range. To some extent, this is speculation because, beyond the colloquy above, the District Court did not expressly state what impact the ARD had on its ultimate sentence. We also agree with the Government that there were other factors which could have contributed to the decision to sentence the defendant to 15 months of incarceration. See Appellee's Brief, at 18 n. 6. Nevertheless, the record reflects that the District Court inquired about the ARD and issued its sentence immediately following the colloquy above. Therefore, we accept Rubashkin's argument that his ARD was likely a consideration in the District Court's sentencing decision, and our analysis proceeds from this general presumption. We will not, however, speculate as to whether Rubashkin's ARD was the sole or primary reason for his ultimate sentence.
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The most that can be said of the defendant's ARD is that the District Court may have considered it, in conjunction with other possible relevant factors, in determining where, within the properly calculated guideline range, to sentence Rubashkin. As to this inquiry, § 4A1.2(f) simply does not control. Rather, that inquiry is guided by § 1B1.4 which provides: "in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." USSG § 1B1.4 (emphases added). n2 The commentary to § 1B1.4 expressly contemplates the scenario where a court could consider an unindicted offense when determining where to sentence a defendant within the guideline range: "if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for sentencing above the guideline range." USSG [**8] § 1B1.4, commentary. The language of § 1B1.4 makes it clear that "Congress intended that no limitation [*196] would be placed on the information that a court may consider in imposing an appropriate sentence." Id.
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n2 USSG § 1B1.4 explicitly references 18 U.S.C. § 3661 which states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
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Although district courts may consider a broad range of factors at sentencing, we recognize that the breadth of § 1B1.4 is limited to background information not "otherwise prohibited by law." The commentary to § 1B1.4 expressly references the policy statements in Chapter 5, Part H of the Sentencing Guidelines as providing examples of factors that should not be considered or should only be considered for limited purposes. USSG § 1B1.4, commentary. For instance, [**9] as the Government observes, § 5H1.10 provides that considerations of race, sex, national origin, creed, religion, and socio-economic status are not relevant in the determination of a sentence. We note that none of the policy statements in Chapter 5, Part H suggests, either explicitly or implicitly, that a diversionary disposition should not be considered in sentencing decisions under § 1B1.4.
This Court's precedents support the "considerable leeway" afforded to sentencing courts pursuant to § 1B1.4. See United States v. Baird, 109 F.3d 856, 863 (3d Cir. 1997). In Baird, we addressed the issue of whether conduct underlying dismissed counts was relevant in deciding whether to depart upward from the guidelines range. We held that "conduct underlying dismissed counts--which is conduct that is neither formally charged nor an element of the offense--may be considered at sentencing," so long as the dismissed counts related in some way to the offense conduct. Id. at 864-65. Our decision relied in part on the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997), where the Court held [**10] that a sentencing court may consider the conduct underlying an acquitted charge pursuant to § 1B1.4, as long as the conduct at issue has been proved by a preponderance of the evidence. Given that § 1B1.4 permits the consideration of conduct underlying dismissed counts and conduct of which a defendant has been acquitted, there is simply no support for Rubashkin's position that the District Court was not permitted to consider his diversionary disposition.
Notwithstanding the District Court's straightforward consideration of his ARD, Rubashkin contends that the Court's sentencing decision was improper in two additional respects. First, Rubashkin argues that by considering his diversionary disposition and sentencing him to the high end of the applicable range, the District Court in effect incorporated his ARD into his criminal history category because the sentence ultimately imposed would have been at the middle of the guidelines range upwardly adjusted for his criminal history. n3 Thus, Rubashkin merely makes the unremarkable observation that his guideline range overlaps with the hypothetical range that would have applied if he was in the next higher criminal history category. This [**11] is beside the point. At any given offense level, a number of the ranges along the criminal history category axis overlap. The relevant inquiry is not whether the ranges overlap, but rather [*197] whether the District Court lawfully exercised its wide latitude in sentencing the defendant within the properly calculated guideline range.
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n3 With an offense level of 12 and a criminal history category of I, the applicable guidelines range was 10 to 16 months. With the same offense level of 12 and a criminal history category of II, Rubashkin's guidelines range would have been 12 to 18 months.
As discussed above, we fail to see the relevance of this argument, and in any event, the Government correctly points out that even if Rubashkin's ARD had actually been considered, it would have resulted in only one criminal history point which would have left the defendant in the same criminal history category I. See USSG § 4A1.1(c).
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Lastly, Rubashkin contends that the District Court erred in failing to state its reasons for [**12] imposing a 15-month term of incarceration. We disagree. 18 U.S.C. § 3553 requires a district court to state the reasons for its sentence when (1) the sentence departs from the applicable guideline range; or (2) the sentence is within the guideline range and that sentence exceeds 24 months. It follows that when the applicable guideline range is less than 24 months and the sentence ultimately imposed is within the applicable range, the court is not required to state its reasons. See United States v. Graham, 72 F.3d 352, 360 (3d Cir. 1995) (Nygaard, J., concurring).
For these reasons, we hold that the District Court did not err by inquiring into or considering Rubashkin's diversionary disposition when determining where, within the properly calculated guideline range, to sentence the defendant. Furthermore, we find that the District Court was not required to state the reasons for its sentence because the applicable guideline range was less than 24 months, and the sentence ultimately imposed was within that range.
IV.
For the reasons set forth above, we will affirm the judgment of the District Court.
Monday, August 13, 2007
Wednesday, August 8, 2007
This Story comes from an insiders web page, (a must read).
Tuesday, August 7, 2007
Moshe gets Rabbi Light fired from his job after 32 years of working there!
Yesterday on a real ugly day (the weather sucked, or just typical ny summer weather), Rabbi Light sat down with Moshe Rubashkin, Harvey Lang, Mulle Plotkin, and Rabbi Zirkind. The meeting was about discussing Rabbi Lights future at his job in the community council office (weatherization). The goal was to get Rabbi Light fired with a Rov involved. And thats what they got. I will have to say that Mulle Plotkin who until now has been a big Moshe Rubashkin sympathizer ( in slang: butsucker) was actually siding with Rabbi Light. Harvey Lang had no clue what the hell was going on, thats bc the meeting was in Yiddush ( I'm not sure if English would have made a difference, since he loves Moshe, G-d knows why!). And Rabbi Zirkind sat like a puppet as Moshe gave him instructions on exactly what he wants to be done to Rabbi Light. And so it was.
Moshe again got his way. At the same time he is ruining someones life. He has taken away any dignity that Rabbi Light ever had by hitting him. Now he has take n away his job. Rabbi Light was working there for 32 years, and he was and is the most liked person in the office. Now he doesnt have a job. Where is he supposed to find work at 60 years old. ( I spoke personally to four workers in the office and they told me that the reason why they havnt stood up for Rabbi Light is bc they fear that Moshe will have them fired).
But lets not lose focus. My goal is to show you on a daily basis how Moshe is a sick sadistic, barbarous, brutal, fiendish, perverse,ruthless, vicious, uncivilized piece of shit. Somebody has to get him back. And we should all be able to watch. And laugh.
Moshe gets Rabbi Light fired from his job after 32 years of working there!
Yesterday on a real ugly day (the weather sucked, or just typical ny summer weather), Rabbi Light sat down with Moshe Rubashkin, Harvey Lang, Mulle Plotkin, and Rabbi Zirkind. The meeting was about discussing Rabbi Lights future at his job in the community council office (weatherization). The goal was to get Rabbi Light fired with a Rov involved. And thats what they got. I will have to say that Mulle Plotkin who until now has been a big Moshe Rubashkin sympathizer ( in slang: butsucker) was actually siding with Rabbi Light. Harvey Lang had no clue what the hell was going on, thats bc the meeting was in Yiddush ( I'm not sure if English would have made a difference, since he loves Moshe, G-d knows why!). And Rabbi Zirkind sat like a puppet as Moshe gave him instructions on exactly what he wants to be done to Rabbi Light. And so it was.
Moshe again got his way. At the same time he is ruining someones life. He has taken away any dignity that Rabbi Light ever had by hitting him. Now he has take n away his job. Rabbi Light was working there for 32 years, and he was and is the most liked person in the office. Now he doesnt have a job. Where is he supposed to find work at 60 years old. ( I spoke personally to four workers in the office and they told me that the reason why they havnt stood up for Rabbi Light is bc they fear that Moshe will have them fired).
But lets not lose focus. My goal is to show you on a daily basis how Moshe is a sick sadistic, barbarous, brutal, fiendish, perverse,ruthless, vicious, uncivilized piece of shit. Somebody has to get him back. And we should all be able to watch. And laugh.
Looking for your HELP
BH
Acording to all Rabbinic opinions that we saught, it is not just permited, you, we are all obligated to spread theese storys and comments about MOSHE THE FELON, because we are M'chuyev to protect one another from evel and danger at all cost.
Therefore..
1- Anyone and everyone that may have a story that is of importants please don't think twice, do what you need to.
1- Please spread the word about this web page, all over.
Acording to all Rabbinic opinions that we saught, it is not just permited, you, we are all obligated to spread theese storys and comments about MOSHE THE FELON, because we are M'chuyev to protect one another from evel and danger at all cost.
Therefore..
1- Anyone and everyone that may have a story that is of importants please don't think twice, do what you need to.
1- Please spread the word about this web page, all over.
Another Story For All To Know
As support for his administration continues to erode, Moshe Rubashkin persists in fomenting machlokis and division in the community. For many weeks he has been trying to buy the Levi aliya on Shavuos in 770 for his hand-picked "Rav" Shlomo Segal. This is part of his continuing campaign to destroy the authority of the Beis Din by exacerbating the tensions between the Rabbonim, and by causing confusion as to who are the Rabbonim.
The Gabboim decided that, as long as the matter has not been settled by an impartial Din Torah, they will not allow the Aliyas in 770 to be used as a weapon in the machlokis over whether R. Segal's election was valid. They therefore refused to give the aliya to R. Segal.
Rubashkin has now threatened that, if the aliya does not go to Segal, he will have Rabbi Osdoba order the Gabboim to pull out of the lawsuit with Krinsky and give Krinsky control over 770.
The Gabboim decided that, as long as the matter has not been settled by an impartial Din Torah, they will not allow the Aliyas in 770 to be used as a weapon in the machlokis over whether R. Segal's election was valid. They therefore refused to give the aliya to R. Segal.
Rubashkin has now threatened that, if the aliya does not go to Segal, he will have Rabbi Osdoba order the Gabboim to pull out of the lawsuit with Krinsky and give Krinsky control over 770.
An Old Post, (from another web page).
Simple Answers Says:
June 28th, 2007 at 10:45 pm
All your questions have been asked and answered many times in the past. Moshe is a master manipulator who has Lang and Plotkin under his control. They are both terrified of his tantrums AND both get just enough kovod to keep them going. Talk to either of them - no sechel but hungry for kovod. Moshe has their number.
Nash and Sperlin refused to be controlled so he threw them out. When they tried to stick up for their rights he ran a terror campaign against them in the community and no one stood up for them (including me) even those who knew they were right and according to halacha.
So what do you want from Light? If he goes to the Police he will be labeled and ostracized as a moser. If he goes public in the community he will be fired (and maybe beaten up again). If he goes to Rav Schwei Rubashkin won’t go. If he goes to Rav Osdoba and the others, he automatically loses.
Before you judge Light for not pressing charges, are you willing to sign your name to your comment above? Are you willing to start a petition to impeach this crazy man? If you do, I will sign it with you.
June 28th, 2007 at 10:45 pm
All your questions have been asked and answered many times in the past. Moshe is a master manipulator who has Lang and Plotkin under his control. They are both terrified of his tantrums AND both get just enough kovod to keep them going. Talk to either of them - no sechel but hungry for kovod. Moshe has their number.
Nash and Sperlin refused to be controlled so he threw them out. When they tried to stick up for their rights he ran a terror campaign against them in the community and no one stood up for them (including me) even those who knew they were right and according to halacha.
So what do you want from Light? If he goes to the Police he will be labeled and ostracized as a moser. If he goes public in the community he will be fired (and maybe beaten up again). If he goes to Rav Schwei Rubashkin won’t go. If he goes to Rav Osdoba and the others, he automatically loses.
Before you judge Light for not pressing charges, are you willing to sign your name to your comment above? Are you willing to start a petition to impeach this crazy man? If you do, I will sign it with you.
For Those That Don't Know
Article Updated 6/2907
Once again, Moshe Rubashkin has publicly lost control of himself and attacked a Coucil employee in the middle of the JCC offices as horrified staff looked on. The victim this time was Rabbi Shmuel Light, longtime Council employee and Director of the Weatherization Program in the Council.
Witnesses report that the incident happened at around 1 p.m. today, in the Council offices at 392 Kingston Avenue. Rubashkin and Light were talking when, without warning Rubashkin started screaming and throwing things. He then started to shove and push Light. When Light broke away he smashed Light's computer and screamed that he was fired.
[The following details were added to the original article]
The altercation began when Rubashkin asked Light to take care of a tenant who had a problem with a child with medical problems. Light responded that there are social workers at the Council who would be more suited to the task.Rubashkin ordered Light to do as he told him to and started screaming. He picked up the computer monitor and smashed it, and did the same with the printer. He overturned Light's desk and started ripping up files. Then he grabbed Rabbi Light by the collar of his shirt and smashed him up against the wall and hit him. Light broke away and went to R. Shlomo Segal's office - Segal was at the door. Rubashkin chased him, grabbed him again and smashed him up against the wall again. Segal retreated into his office at this point. Rubashkin screamed that Light was fired and threw him out.
Police were called and took a report. Thus far no arrest has been made.
Light was taken to a local hospital for a tetanus shot as a precaution for a cut he received in the altercation.
Rubashkin has a long history of verbal and physical abuse. Many incidents have been public and witnessed by many. The following incidents are matters of public record:
Attacking Chairman of the Netzigim Yisroel Best in the middle of a Netzigim meeting. Rubashkin was arrested and Best had to be given an Order of Protection against Rubashkin.
Attacking Levi Huebner at a public meeting with Shmira, Hatzoloh and politicians in the Council offices.
Assaulting Eli Slavin, Yitzchok Holtzman and Eli Polterak at various times for disagreeing with him.
Assaulting employees in his textile plant.
A Council employee who refused to be identified reported that Rubashkin often loses his temper and screams at employees. Most of the employees are scared of losing their jobs, so they accept whatever verbal abuse they are given.
The other Council Directors are also victims of Rubashkin's public tirades, according to several witnesses. Both Tzvi Lang and Shmuel Plotkin have been on the receiving end of multiple dressing downs in front of JCC employees. "They take it like scared puppy dogs," reported the employee who refuses to be identified.
Once again, Moshe Rubashkin has publicly lost control of himself and attacked a Coucil employee in the middle of the JCC offices as horrified staff looked on. The victim this time was Rabbi Shmuel Light, longtime Council employee and Director of the Weatherization Program in the Council.
Witnesses report that the incident happened at around 1 p.m. today, in the Council offices at 392 Kingston Avenue. Rubashkin and Light were talking when, without warning Rubashkin started screaming and throwing things. He then started to shove and push Light. When Light broke away he smashed Light's computer and screamed that he was fired.
[The following details were added to the original article]
The altercation began when Rubashkin asked Light to take care of a tenant who had a problem with a child with medical problems. Light responded that there are social workers at the Council who would be more suited to the task.Rubashkin ordered Light to do as he told him to and started screaming. He picked up the computer monitor and smashed it, and did the same with the printer. He overturned Light's desk and started ripping up files. Then he grabbed Rabbi Light by the collar of his shirt and smashed him up against the wall and hit him. Light broke away and went to R. Shlomo Segal's office - Segal was at the door. Rubashkin chased him, grabbed him again and smashed him up against the wall again. Segal retreated into his office at this point. Rubashkin screamed that Light was fired and threw him out.
Police were called and took a report. Thus far no arrest has been made.
Light was taken to a local hospital for a tetanus shot as a precaution for a cut he received in the altercation.
Rubashkin has a long history of verbal and physical abuse. Many incidents have been public and witnessed by many. The following incidents are matters of public record:
Attacking Chairman of the Netzigim Yisroel Best in the middle of a Netzigim meeting. Rubashkin was arrested and Best had to be given an Order of Protection against Rubashkin.
Attacking Levi Huebner at a public meeting with Shmira, Hatzoloh and politicians in the Council offices.
Assaulting Eli Slavin, Yitzchok Holtzman and Eli Polterak at various times for disagreeing with him.
Assaulting employees in his textile plant.
A Council employee who refused to be identified reported that Rubashkin often loses his temper and screams at employees. Most of the employees are scared of losing their jobs, so they accept whatever verbal abuse they are given.
The other Council Directors are also victims of Rubashkin's public tirades, according to several witnesses. Both Tzvi Lang and Shmuel Plotkin have been on the receiving end of multiple dressing downs in front of JCC employees. "They take it like scared puppy dogs," reported the employee who refuses to be identified.
From The JEWISH WEEK (05/25/2006)
Crown Heights JCC Leader Sued
Board members say chairman owes council millions; Rubashkin claims row is over bet din.
Adam Dickter - Staff Writer
A state court in Brooklyn is weighing whether to require the chairman of the Crown Heights Jewish Community Council to turn over financial records to his officers after two directors alleged that he has misdirected funds for personal gain.
But Rabbi Moshe Rubashkin emphatically denies the charges, insisting 'not a dollar, not 50 cents, not a penny' was misused. And at least one communal leader says the charges appear 'baseless.'
Judge Francois Rivera of state Supreme Court earlier this month called on Rabbi Rubashkin to show why an order should not be issued by the court requiring him to open the books. The motion also prevented the installation of three rabbis to a bet din whose election on April 30 is in dispute.
The two board members, Hanina Sperlin and Leibish Nash, want Rabbi Rubashkin to give up financial control of the council and pay at least $18 million to the organization.
A hearing in the case was scheduled for Monday but postponed until June 19 before Judge Michael Ambrosio, at which time the rabbi will have to explain why he should not have to show the records to the plaintiffs.
The case reveals a hefty power struggle within the tangled web of secular social service and religious organizations that controls life in the Crown Heights chasidic community, whose numbers are estimated at about 10,000. Thousands more adherents who look to Crown Heights for guidance are spread across the globe.
Rabbi Rubashkin’s election to the helm of the JCC, which disburses public and private money to those eligible for social programs while also funding neighborhood projects, drew some controversy in January 2005, because he had served 15 months in a federal prison two years earlier for writing bad checks to cover expenses for his failing textiles business.
He was nevertheless elected with more than 70 percent of 1,200 votes cast, more than the others on the slate. His supporters later said he would not be directly involved in the JCC’s finances.
But Sperlin and Nash allege that not only is he involved but “it appears that Rubashkin has used JCC funds for his own self-interest and personal expenses” while refusing to open the books to other trustees and bypassing other officers, according to court papers.
No details are provided in court papers about the alleged misdirection of funds. The plaintiffs are seeking “at least $18 million” to be repaid to the JCC, according to court papers, although the same papers elsewhere note that the organization’s assets are around $2 million.
“We are afraid his actions could affect the city’s funding to the JCC,” said the plaintiffs’ lawyer, Howard Rubin.
Rubin told The Jewish Week the suit was brought because Rabbi Rubashkin “unilaterally” scheduled an election to fill a vacancy on the communal bet din through a process that violated the JCC’s mandates, in the view of the plaintiffs.
“The clients came to us and said this is not according to bylaws and rules and successfully got a temporary restraining order preventing the certification of the election,” said Rubin. “In the course of an investigation we found out Rubashkin was using the letterhead of the JCC as if the election was approved by the JCC or the Vaad Hakohol.”
The Vaad Hakohol is the JCC’s religious arm, which carries out the elections of the bet din.
In an interview from Israel, where he was visiting his son this week, Rabbi Rubashkin spoke in great detail about the case, insisting the true aim of the plaintiffs was to prevent the installation of the rabbis to the bet din. He said he did not know why the plaintiffs opposed the rabbis.
“I don’t understand what they are trying to do,” he said. “They are coming at me from every which way. This isn’t about Moshe Rubashkin. What they really want in court is to stop the rabbanim [rabbis] from becoming rabbanim. That’s what they’re looking to stop.” He stressed that a vibrant communal bet din, which would interpret the teachings of the late Rebbe Menachem Schneerson, was imperative in a movement that dispatches thousands of emissaries throughout the world.
Of his past indiscretions, Rabbi Rubashkin said “I made a mistake in my life and paid a very heavy price for it, but paying the price doesn’t mean you are killed. Last year 450 people went to camp [thanks to the JCC], we gave out money like never before in the history of the JCC.” He added that he receives no compensation for his work with the council. He also insisted that the council’s books must be examined by government audits. “As long as you take any money from the government you must certify the books every year.”
The JCC is affiliated with the Metropolitan Council on Jewish Poverty, which administers some of its programs, such as Child Health Plus and job training and prepares the payroll of employees who work on those programs, although it does not directly fund the JCC.
Met Council’s director, William Rapfogel, said his inquiries into the matter suggest personality clashes were mostly to blame for the strife.
“We’re always concerned about any kind of allegations,” he said. “But based on initial discussions these seem to be baseless charges purely based on disagreements within the community. They have to do with a bigger machlokes [conflict], which has nothing to do with the provision of social services.”
Rabbi Rubashkin’s critics object to his spending thousands of dollars on an outside firm, Election Services Corporation, to certify the results of the election. The rabbi says the sum was about $15,000. He said the expense was justified to ensure that the results would not be questioned. But, in the court papers, the plaintiffs, who named Long Island-based Election Services Corporation a co-defendant in the suit, claim the election was not carried out in accordance with Vaad Hakohol guidelines, which require, among other things, that the tallying of results be videotaped. The lawsuit claims the company certified the election “notwithstanding the fact that it was informed that the election was not performed properly.”
Election Services Corporation, as of Tuesday, did not respond to a call and e-mail message seeking comment.
The lawsuit also claims that Rabbi Rubashkin held a meeting in his home last month to appoint new members of the JCC board — members who would support his stewardship — and that meeting violated the group’s bylaws. But the rabbi said his election was held to address violations of bylaws in the last election in September.
Marcia Eisenberg of the Jewish Legal Assistance Program, a division of the Jewish Community Relations Council that advises nonprofits, said she had been consulted on the dispute and had informed both sides that they had not conformed with JCC bylaws. She said the April meeting was likely held too far after the initial election to supersede it.
“If they did everything they say they did and adhered to the bylaws, the question is was it legitimate because it was done in April,” said Eisenberg.
Yankel Wice, a member of the JCC’s synagogue advisory council who supports Rabbi Rubashkin, said he “strongly doubts” the rabbi did anything improper.
“He has done things like provide clothing and housing for yeshiva boys and girls on Passover and helped with summer camp tuition and a lot of social programs, often using the monies that the council has,” said Wice. He insisted Rabbi Rubashkin had provided some accounting of the finances, if not to the level sought by his detractors. “What the plaintiffs in this case are seeking is every single record, every petty cash [receipt] and check stub. I am not aware of any organization that is required to provide that level of specificity.” n
Board members say chairman owes council millions; Rubashkin claims row is over bet din.
Adam Dickter - Staff Writer
A state court in Brooklyn is weighing whether to require the chairman of the Crown Heights Jewish Community Council to turn over financial records to his officers after two directors alleged that he has misdirected funds for personal gain.
But Rabbi Moshe Rubashkin emphatically denies the charges, insisting 'not a dollar, not 50 cents, not a penny' was misused. And at least one communal leader says the charges appear 'baseless.'
Judge Francois Rivera of state Supreme Court earlier this month called on Rabbi Rubashkin to show why an order should not be issued by the court requiring him to open the books. The motion also prevented the installation of three rabbis to a bet din whose election on April 30 is in dispute.
The two board members, Hanina Sperlin and Leibish Nash, want Rabbi Rubashkin to give up financial control of the council and pay at least $18 million to the organization.
A hearing in the case was scheduled for Monday but postponed until June 19 before Judge Michael Ambrosio, at which time the rabbi will have to explain why he should not have to show the records to the plaintiffs.
The case reveals a hefty power struggle within the tangled web of secular social service and religious organizations that controls life in the Crown Heights chasidic community, whose numbers are estimated at about 10,000. Thousands more adherents who look to Crown Heights for guidance are spread across the globe.
Rabbi Rubashkin’s election to the helm of the JCC, which disburses public and private money to those eligible for social programs while also funding neighborhood projects, drew some controversy in January 2005, because he had served 15 months in a federal prison two years earlier for writing bad checks to cover expenses for his failing textiles business.
He was nevertheless elected with more than 70 percent of 1,200 votes cast, more than the others on the slate. His supporters later said he would not be directly involved in the JCC’s finances.
But Sperlin and Nash allege that not only is he involved but “it appears that Rubashkin has used JCC funds for his own self-interest and personal expenses” while refusing to open the books to other trustees and bypassing other officers, according to court papers.
No details are provided in court papers about the alleged misdirection of funds. The plaintiffs are seeking “at least $18 million” to be repaid to the JCC, according to court papers, although the same papers elsewhere note that the organization’s assets are around $2 million.
“We are afraid his actions could affect the city’s funding to the JCC,” said the plaintiffs’ lawyer, Howard Rubin.
Rubin told The Jewish Week the suit was brought because Rabbi Rubashkin “unilaterally” scheduled an election to fill a vacancy on the communal bet din through a process that violated the JCC’s mandates, in the view of the plaintiffs.
“The clients came to us and said this is not according to bylaws and rules and successfully got a temporary restraining order preventing the certification of the election,” said Rubin. “In the course of an investigation we found out Rubashkin was using the letterhead of the JCC as if the election was approved by the JCC or the Vaad Hakohol.”
The Vaad Hakohol is the JCC’s religious arm, which carries out the elections of the bet din.
In an interview from Israel, where he was visiting his son this week, Rabbi Rubashkin spoke in great detail about the case, insisting the true aim of the plaintiffs was to prevent the installation of the rabbis to the bet din. He said he did not know why the plaintiffs opposed the rabbis.
“I don’t understand what they are trying to do,” he said. “They are coming at me from every which way. This isn’t about Moshe Rubashkin. What they really want in court is to stop the rabbanim [rabbis] from becoming rabbanim. That’s what they’re looking to stop.” He stressed that a vibrant communal bet din, which would interpret the teachings of the late Rebbe Menachem Schneerson, was imperative in a movement that dispatches thousands of emissaries throughout the world.
Of his past indiscretions, Rabbi Rubashkin said “I made a mistake in my life and paid a very heavy price for it, but paying the price doesn’t mean you are killed. Last year 450 people went to camp [thanks to the JCC], we gave out money like never before in the history of the JCC.” He added that he receives no compensation for his work with the council. He also insisted that the council’s books must be examined by government audits. “As long as you take any money from the government you must certify the books every year.”
The JCC is affiliated with the Metropolitan Council on Jewish Poverty, which administers some of its programs, such as Child Health Plus and job training and prepares the payroll of employees who work on those programs, although it does not directly fund the JCC.
Met Council’s director, William Rapfogel, said his inquiries into the matter suggest personality clashes were mostly to blame for the strife.
“We’re always concerned about any kind of allegations,” he said. “But based on initial discussions these seem to be baseless charges purely based on disagreements within the community. They have to do with a bigger machlokes [conflict], which has nothing to do with the provision of social services.”
Rabbi Rubashkin’s critics object to his spending thousands of dollars on an outside firm, Election Services Corporation, to certify the results of the election. The rabbi says the sum was about $15,000. He said the expense was justified to ensure that the results would not be questioned. But, in the court papers, the plaintiffs, who named Long Island-based Election Services Corporation a co-defendant in the suit, claim the election was not carried out in accordance with Vaad Hakohol guidelines, which require, among other things, that the tallying of results be videotaped. The lawsuit claims the company certified the election “notwithstanding the fact that it was informed that the election was not performed properly.”
Election Services Corporation, as of Tuesday, did not respond to a call and e-mail message seeking comment.
The lawsuit also claims that Rabbi Rubashkin held a meeting in his home last month to appoint new members of the JCC board — members who would support his stewardship — and that meeting violated the group’s bylaws. But the rabbi said his election was held to address violations of bylaws in the last election in September.
Marcia Eisenberg of the Jewish Legal Assistance Program, a division of the Jewish Community Relations Council that advises nonprofits, said she had been consulted on the dispute and had informed both sides that they had not conformed with JCC bylaws. She said the April meeting was likely held too far after the initial election to supersede it.
“If they did everything they say they did and adhered to the bylaws, the question is was it legitimate because it was done in April,” said Eisenberg.
Yankel Wice, a member of the JCC’s synagogue advisory council who supports Rabbi Rubashkin, said he “strongly doubts” the rabbi did anything improper.
“He has done things like provide clothing and housing for yeshiva boys and girls on Passover and helped with summer camp tuition and a lot of social programs, often using the monies that the council has,” said Wice. He insisted Rabbi Rubashkin had provided some accounting of the finances, if not to the level sought by his detractors. “What the plaintiffs in this case are seeking is every single record, every petty cash [receipt] and check stub. I am not aware of any organization that is required to provide that level of specificity.” n
A Witness Says It All
I am a witness of Moshe rubashkin’s violence.
So please ad this story to the count. It was the Motzie Shabbos before the fake elections for rabbonim, and I was talking to Eli slavin and some other Bala Batim, on the corner of Kingston and union, when Moshe came and joined the discussion, when Eli disagreed with what he said about the elections he stated screaming and pushing Eli around not letting him finish or even make a point, he just shouted his opinion and pushed Eli out of the conversation. When Eli sew that it was no point any more (maybe a little scared to) he just left, and i did to.
If the web site wants my details I will give it if it stays confidential
So please ad this story to the count. It was the Motzie Shabbos before the fake elections for rabbonim, and I was talking to Eli slavin and some other Bala Batim, on the corner of Kingston and union, when Moshe came and joined the discussion, when Eli disagreed with what he said about the elections he stated screaming and pushing Eli around not letting him finish or even make a point, he just shouted his opinion and pushed Eli out of the conversation. When Eli sew that it was no point any more (maybe a little scared to) he just left, and i did to.
If the web site wants my details I will give it if it stays confidential
Koyrach V'adosoy
Moshe gets Rabbi Light fired from his job after 32 years of working there!
Yesterday on a real ugly day (the weather sucked, or just typical ny summer weather), Rabbi Light sat down with Moshe Rubashkin, Harvey Lang, Mulle Plotkin, and Rabbi Zirkind. The meeting was about discussing Rabbi Lights future at his job in the community council office (weatherization). The goal was to get Rabbi Light fired with a Rov involved. And thats what they got. I will have to say that Mulle Plotkin who until now has been a big Moshe Rubashkin sympathizer ( in slang: butsucker) was actually siding with Rabbi Light. Harvey Lang had no clue what the hell was going on, thats bc the meeting was in Yiddush ( I'm not sure if English would have made a difference, since he loves Moshe, G-d knows why!). And Rabbi Zirkind sat like a puppet as Moshe gave him instructions on exactly what he wants to be done to Rabbi Light. And so it was.
Moshe again got his way. At the same time he is ruining someones life. He has taken away any dignity that Rabbi Light ever had by hitting him. Now he has take n away his job. Rabbi Light was working there for 32 years, and he was and is the most liked person in the office. Now he doesnt have a job. Where is he supposed to find work at 60 years old. ( I spoke personally to four workers in the office and they told me that the reason why they havnt stood up for Rabbi Light is bc they fear that Moshe will have them fired).
But lets not lose focus. My goal is to show you on a daily basis how Moshe is a sick sadistic, barbarous, brutal, fiendish, perverse,ruthless, vicious, uncivilized piece of shit. Somebody has to get him back. And we should all be able to watch. And laugh.
Yesterday on a real ugly day (the weather sucked, or just typical ny summer weather), Rabbi Light sat down with Moshe Rubashkin, Harvey Lang, Mulle Plotkin, and Rabbi Zirkind. The meeting was about discussing Rabbi Lights future at his job in the community council office (weatherization). The goal was to get Rabbi Light fired with a Rov involved. And thats what they got. I will have to say that Mulle Plotkin who until now has been a big Moshe Rubashkin sympathizer ( in slang: butsucker) was actually siding with Rabbi Light. Harvey Lang had no clue what the hell was going on, thats bc the meeting was in Yiddush ( I'm not sure if English would have made a difference, since he loves Moshe, G-d knows why!). And Rabbi Zirkind sat like a puppet as Moshe gave him instructions on exactly what he wants to be done to Rabbi Light. And so it was.
Moshe again got his way. At the same time he is ruining someones life. He has taken away any dignity that Rabbi Light ever had by hitting him. Now he has take n away his job. Rabbi Light was working there for 32 years, and he was and is the most liked person in the office. Now he doesnt have a job. Where is he supposed to find work at 60 years old. ( I spoke personally to four workers in the office and they told me that the reason why they havnt stood up for Rabbi Light is bc they fear that Moshe will have them fired).
But lets not lose focus. My goal is to show you on a daily basis how Moshe is a sick sadistic, barbarous, brutal, fiendish, perverse,ruthless, vicious, uncivilized piece of shit. Somebody has to get him back. And we should all be able to watch. And laugh.
Read and Judge for your self
1) Per Federal Bureau of prisons records:
http://inmateloc.bop.gov/locatordocs/home.jsp
Inmate Information for MOSHE RUBASHKIN
Inmate Register Number : 56932-066
Name : MOSHE RUBASHKIN
Age : 46
Race : WHITE
Sex : MALE
Date Released : 2/23/04
2) Per public records I've accessed:
There are few people with the name Moshe Rubashkin in the US. The only Moshe Rubashkin I could find in the US who was 46 years old was Rabbi Moshe Rubashkin of Brooklyn, NY.
3)
Note also that this was not a one time criminal act. There is a history:
"In his motion, Rubashkin claims that this Court improperly considered earlier criminal conduct that resulted in an Accelerated Rehabilitative Disposition (“ARD”) in a Pennsylvania trial court."
4)
Can anyone get copies of these?
1. RUBASHKIN, MOSHE, 6135502, 10/29/2002, JUDGMENT, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
2. RUBASHKIN, MOSHE, 01-CL-2129, JC-00002129-2001-CR, 6/4/2001, JUDGMENT, LEHIGH, PAJGT
3. RUBASHKIN, MOSHE, 000364748, 12/15/2000, JUDGMENT, BRONX COUNTY CLERK LIEN
4. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/15/2000, 23234/00, SUPREME COURT, BRONX COUNTY CLERKS OFFICE
5. COHEN, SHAUL, MECHANICS LIEN, 04/19/1999, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
6. RUBASHKIN, MOSHE, 2722, 10/29/1997, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
7. RUBASHKIN, MOSHE, 20042, 11/15/1995, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
8. RUBASHKIN, MOSHE Y, 1345982, 10/26/1995, JUDGMENT, KINGS COUNTY CLERK LIEN
9. RUBASHKIN, MOSHE Y, JUDGMENTS DOCKET, 10/26/1995, KINGS COUNTY CLERKS OFFICE
10. RUBASHKIN, MOSHE ET. AL., JC-00000065-1995-SL, 2/13/1995, STATE TAX LIEN, LEHIGH, PATXLN
11. RUBASHKIN, MOSHE, 00006197392, 3/4/1993, JUDGMENT, SATISFIED, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
12. RUBASHKIN, MOSHE, 00000106390, 12/31/1990, JUDGMENT, SULLIVAN COUNTY CLERK LIEN
13. RUBASHKIN, MOSHE, 00002761490, 12/17/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN
14. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
15. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
16. RUBASHKIN, MOSHE, 00001678787, 3/23/1990, JUDGMENT, KINGS COUNTY CLERK LIEN
17. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/89, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
18. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/87, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
19. RUBASHKIN, MOSHE, 00001698789, 3/22/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN
5)
I believe he has ties to the following:
1. AF SERVICES INC., CORPORATION (PROFIT), 9/9/2002, 9/9/2002, 269607, IOWA SECRETARY OF STATE
2. AF SERVICES INC., CORPORATION (PROFIT), 8/21/2002, 8/21/2002, C0145177, IDAHO SECRETARY OF STATE
3. MONTEX BLEACHERY INC., INCORPORATED BUSINESS, IN GOOD STANDING (ACTIVE), 2720832, PASOS
4. MONTEX TEXTILES LTD., FOREIGN BUSINESS, IN GOOD STANDING (ACTIVE), 1503592, PASOS
5. Inactive - MONTEX TEXTILES LTD, 1101 S 6TH ST, ALLENTOWN,, PA , TEL: 610-437-4679, ABI-NO: 000448043, 10/8/2002
6. MONTEX TEXTILE LTD, PA , May 16, 2003, 120 words, DUNS: 04-513-7411
7. R AND M DIAMOND, 2/9/2001, 81721, KINGS COUNTY, NEW YORK, ASSUMED BUSINESS NAMES (fictitious name)
8. BAHERE KNIT INDUSTRIES LTD, NY , June 03, 1994, 117 words, DUNS: 83-284-7552
6)
The New York Times
September 23, 1983
Sec.B,Pg.3
4 HASIDIM HELD FOLLOWING CLASH WITH POLICE
By LINDSEY GRUSON
Nine police officers were slightly injured yesterday and four people arrested in a melee between the police and Orthodox Jews leaving a synagogue holiday service in Brooklyn, the police said.
A police spokesman, Chief of Patrol Robert Johnston, said the trouble started at 1:45 P.M. when a city bus drove up Kingston Avenue in the Crown Heights section and nearly hit a man and a woman crossing the street. The couple, Hasidic Jews, had attended a service celebrating Succoth in the main synagogue of the Lubavitch movement.
The man, identified as Levy Weingarten, 27 years old, of 7 Balvour Place, threw a rock that broke the bus's rear-view mirror, Chief Johnston said. The driver called the police.
Religious Rule Involved
When officers tried to put Mr. Weingarten into a police car, he resisted. Orthodox Jews do not ride on holidays. Chief Johnston said 300 other worshipers then attacked the officers.
He said that most of the officers injured suffered cuts and scratches during the shoving and kicking that followed. He said that none of the worshipers were hurt.
''It was an attempt by the community to take a prisoner away from the police because putting the person in custody in a car would violate their religious faith,'' Chief Johnston said.
Arrested in addition to Mr. Weingarten were Eric Jacobs, 25, of 1715 Union Street; Moshe Rubashkin, 25, of 435 Crown Street, and Israel Shimtov, 43, of 1594 Carroll Street. Mr. Weingarten was charged with malicious assault and the others with simple assault.
About 250 Hasidim later demonstrated to protest the police action.
7)
The New York Times
December 8, 1983
Sec. B,pg.4
3 Hasidim Indicted
Three Hasidim, including a rabbi, were indicted yesterday on felony assault and riot charges stemming from a melee between a group of Hasidim and the police in the Crown Heights section of Brooklyn on Sept. 22. Nine officers were reported hurt.
The police said the incident began when a bus nearly hit a couple leaving a synagogue after services for Succoth, the Feast of Tabernacles, and a man arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews are not allowed to ride on holy days.
Charged with felonies were Rabbi Israel Shemtov, 43 years old; Eric Jacobs, 25, and Moshe Rubashkin, 25.
The man seized in the rock-throwing, Levi Weingarten, 27, was charged with criminal mischief, a misdemeanor. The police said after the incident that they had offered to walk him to the station house, but that their way was blocked and they put him in the car.
The suspects' lawyer, Ronald M. Kleinberg, said the four were victims of discrimination and assault in the incident.
8)
The New York Times
May 8, 1985
Sec.B,Pg.9
2 Plead Guilty In Hasidic Melee
Two Hasidic Jews have pleaded guilty to misdemeanor charges stemming from a melee between a large group of Hasidim and the police in Brooklyn in September 1983, the Brooklyn District Attorney's office said yesterday.
The police said the incident, in the Crown Heights area, began when a city bus nearly hit a couple leaving a synagogue after Succoth services and a man who was arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews do not ride on that holiday.
The men who pleaded guilty, were indicted on felony assault charges in December 1983. As the result of plea agreements, one man, 26-year-old Eric Jacobs, pleaded guilty Monday to obstructing governmental administration, said Linda Sachs, a spokesman for the prosecutor's office. She said that the second man, Moshe Rubashkin, also 26, pleaded guilty Monday to that charge and to riot in the second degree and that both men would be sentenced to three years' probation and 300 hours of community service.
9)
The New York Times
January 4, 2000
Sec.B, Pg.8
Paid Notice: Deaths
...
LIPSHIE-Geraldine. The friends and supporters of Colel ChabadLubavitch mourn the passing of our long-time friend, supporter and past guest of honor Geraldine Lipshie.
...
LIPSHIE-Geraldine. Agriprocessors, Inc. and all its affiliates send condolences to our long-time good friend, Mr. Norman Lipshie. Through whose guidance our companies have attained great heights, on the passing of his noble wife, Geraldine Lipshie. Together with you we will miss Geraldine..who was much more than a friend. May you be comforted amongst the mourners of Zion and Jerusalem. Mr. & Mrs. Avraham A. Rubashkin Mr. & Mrs. Sholom M. Rubashkin Mr. & Mrs. Heshy Rubashkin Mr. & Mrs. Yossi Rubashkin Mr. & Mrs. Moshe Rubashkin
...
10)
FACTORY OWNER CHARGED WITH BANK FRAUD; [SIXTH Edition]
The Morning Call. Morning Call. Allentown, Pa.: Jun 7, 2002. pg. B.3
Text Word Count 146
Abstract (Document Summary)
[Moshe Rubashkin], 43, of Brooklyn, N.Y., wrote checks payable to Montex from an account at First Choice Associates in Brooklyn, an account that he knew did not have the funds to cover the checks, prosecutors allege...
11)
Moshe Rubashkin business dealings:
http://decisions.courts.state.ny.us/nyscomdiv/oct02/604422-01.pdf
12)
UNITED STATES OF AMERICA v. MOSHE RUBASHKIN, Appellant.
No. 02-4180
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
74 Fed. Appx. 192; 2003 U.S. App. LEXIS 18073
July 23, 2003, Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
August 29, 2003, Filed
NOTICE: [**1] RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: On appeal from the United States District Court for the Eastern District of Pennsylvania. (No. 02-CR-333). District Judge: The Honorable Herbert J. Hutton.
United States v. Rubashkin, 2003 U.S. Dist. LEXIS 4435 (E.D. Pa., Mar. 19, 2003)
DISPOSITION: Affirmed.
COUNSEL: For United States of America, Appellee: Bernadette A. McKeon, Office of the United States Attorney, Philadelphia, PA.
For Moshe Rubashkin, Appellant: Nicholas J. Nastasi, Philadelphia, PA.
JUDGES: Before: ALITO, FUENTES, BECKER, Circuit Judges.
OPINIONBY: FUENTES
OPINION: [*193] OPINION OF THE COURT
FUENTES, Circuit Judge.
Defendant Moshe Rubashkin appeals the entry of judgment and the imposition of a 15-month term of incarceration in connection with his plea of guilty to one count of bank fraud. Rubashkin contends that the District Court erred in considering an earlier incident in which Rubashkin was placed in an Accelerated Rehabilitation Disposition ("ARD") program as a result of his violation of the Pennsylvania Workmen's Compensation Law. According to the defendant, his participation in the ARD did not result in a disposition of guilt. In addition, he argues [**2] that the District Court erred in failing to give an explanation for its 15-month sentence. We find that the District Court did not err in considering the events surrounding Rubashkin's ARD for purposes of determining his sentence within the relevant guideline range and that the Court's statement of reasons was appropriate under 18 U.S.C. § 3553. Therefore, we will affirm the judgment of the District Court.
I.
Rubashkin was the owner and president of Montex Textiles Ltd. ("Montex"), a supplier of raw textiles material located in Allentown, PA. In August 1998, Montex opened separate payroll and general expense accounts with First Union National [*194] Bank ("First Union"). Rubashkin and another individual had signatory authority on both of Montex's accounts.
The Government's investigation revealed that between March 25, 1999 and March 30, 1999, Rubashkin attempted to deposit three checks payable to Montex, all drawn from the account of an entity named First Choice Associates, into Montex's First Union accounts. In the aggregate, the three checks totaled approximately $ 325,000. Rubashkin withdrew or used most of the funds which he attempted to deposit. Shortly [**3] thereafter, First Union learned that there were insufficient funds in the account from which the deposited checks were drawn. The fraud resulted in a loss to the bank in excess of $ 300,000.
Prior to the offense conduct in question, Rubashkin was involved in a separate punishable offense in connection with his operation of Montex. Pennsylvania law requires companies to secure worker's compensation insurance for their employees. See 77 Pa. Cons. Stat. Ann. § 501. Nevertheless, when an employee of Montex became injured and attempted to recover disability payments, it became apparent that Rubashkin, in his capacity as president of Montex, had failed to secure the required insurance. On May 4, 2001, Rubashkin was placed in an ARD program for a period of 18 months. Subsequently, he was ordered to pay $ 968 in fines, costs, and restitution.
On June 6, 2002, the defendant was charged in a one-count information with bank fraud in violation of 18 U.S.C. § 1344. Pursuant to a negotiated plea agreement, Rubashkin entered a plea of guilty to the sole count on July 31, 2002. The District Court conducted a sentencing hearing on November 6, 2002. At the hearing, the [**4] District Court accepted the parties' modification of Rubashkin's guideline offense level, which (1) eliminated the two-level enhancement for more than minimal planning, and (2) correspondingly reduced the acceptance of responsibility reduction to two levels, instead of three. The Court also denied the defendant's motion for downward departure. The Court thus determined that Rubashkin's guideline offense level was 12, with a criminal history category of I, reflecting no criminal history points. The criminal history computation was made without regard to Rubashkin's ARD. Therefore, the applicable guideline range for defendant's offense was 10 to 16 months of imprisonment.
At the sentencing hearing, the District Court also inquired into Rubashkin's ARD. See Joint App. at 27a, 39a-40a. When asked if the paragraph in the pre-sentence investigation report ("PSR") relating to his ARD was true, Rubashkin confirmed that it was. Specifically, the Court and the defendant engaged in the following colloquy:
THE COURT: Before you leave, I'd like you to take a moment and turn to page six of the presentence investigation report and read paragraph 31 to yourself. ...
THE COURT: Is [**5] that correct?
THE DEFENDANT: Yes.
THE COURT: Thank you. That's all I wanted to know.
Id. at 39a-40a.
The Court then sentenced the defendant to 15 months of imprisonment and 5 years of supervised release and ordered restitution in the amount of $ 232,936.99.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the entry of judgment and imposition of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to the [*195] extent that Rubashkin's appeal alleges errors of law.
III.
Rubashkin's primary argument on appeal is that the District Court erred in considering his May 2001 ARD in determining his sentence. n1 In doing so, Rubashkin relies heavily on § 4A1.2(f) of the United States Sentencing Guidelines ("USSG"). At the outset, we note that neither the Probation Office, nor the District Court violated § 4A1.2(f) in the computation of his criminal history category. Section 4A1.2 is titled "Definitions and Instructions for Computing Criminal History," and subsection fmerely provides that, "diversion from the judicial process without [**6] a finding of guilt (e. g., deferred prosecution) is not counted [in the computation of criminal history]." USSG § 4A1.2(f). In the present case, both the Probation Office and the District Court recognized that Rubashkin's ARD was a diversionary disposition within the meaning of § 4A1.2(f), and therefore, the defendant was not assessed any criminal history points. In fact, Rubashkin cannot point to any error in the computation of his criminal history category.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Rubashkin's argument on appeal requires some clarification. He contends that the District Court actually considered his ARD and that the ARD was a factor in the Court's decision to sentence him at the high end of the applicable guideline range. To some extent, this is speculation because, beyond the colloquy above, the District Court did not expressly state what impact the ARD had on its ultimate sentence. We also agree with the Government that there were other factors which could have contributed to the decision to sentence the defendant to 15 months of incarceration. See Appellee's Brief, at 18 n. 6. Nevertheless, the record reflects that the District Court inquired about the ARD and issued its sentence immediately following the colloquy above. Therefore, we accept Rubashkin's argument that his ARD was likely a consideration in the District Court's sentencing decision, and our analysis proceeds from this general presumption. We will not, however, speculate as to whether Rubashkin's ARD was the sole or primary reason for his ultimate sentence.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**7]
The most that can be said of the defendant's ARD is that the District Court may have considered it, in conjunction with other possible relevant factors, in determining where, within the properly calculated guideline range, to sentence Rubashkin. As to this inquiry, § 4A1.2(f) simply does not control. Rather, that inquiry is guided by § 1B1.4 which provides: "in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." USSG § 1B1.4 (emphases added). n2 The commentary to § 1B1.4 expressly contemplates the scenario where a court could consider an unindicted offense when determining where to sentence a defendant within the guideline range: "if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for sentencing above the guideline range." USSG [**8] § 1B1.4, commentary. The language of § 1B1.4 makes it clear that "Congress intended that no limitation [*196] would be placed on the information that a court may consider in imposing an appropriate sentence." Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 USSG § 1B1.4 explicitly references 18 U.S.C. § 3661 which states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Although district courts may consider a broad range of factors at sentencing, we recognize that the breadth of § 1B1.4 is limited to background information not "otherwise prohibited by law." The commentary to § 1B1.4 expressly references the policy statements in Chapter 5, Part H of the Sentencing Guidelines as providing examples of factors that should not be considered or should only be considered for limited purposes. USSG § 1B1.4, commentary. For instance, [**9] as the Government observes, § 5H1.10 provides that considerations of race, sex, national origin, creed, religion, and socio-economic status are not relevant in the determination of a sentence. We note that none of the policy statements in Chapter 5, Part H suggests, either explicitly or implicitly, that a diversionary disposition should not be considered in sentencing decisions under § 1B1.4.
This Court's precedents support the "considerable leeway" afforded to sentencing courts pursuant to § 1B1.4. See United States v. Baird, 109 F.3d 856, 863 (3d Cir. 1997). In Baird, we addressed the issue of whether conduct underlying dismissed counts was relevant in deciding whether to depart upward from the guidelines range. We held that "conduct underlying dismissed counts--which is conduct that is neither formally charged nor an element of the offense--may be considered at sentencing," so long as the dismissed counts related in some way to the offense conduct. Id. at 864-65. Our decision relied in part on the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997), where the Court held [**10] that a sentencing court may consider the conduct underlying an acquitted charge pursuant to § 1B1.4, as long as the conduct at issue has been proved by a preponderance of the evidence. Given that § 1B1.4 permits the consideration of conduct underlying dismissed counts and conduct of which a defendant has been acquitted, there is simply no support for Rubashkin's position that the District Court was not permitted to consider his diversionary disposition.
Notwithstanding the District Court's straightforward consideration of his ARD, Rubashkin contends that the Court's sentencing decision was improper in two additional respects. First, Rubashkin argues that by considering his diversionary disposition and sentencing him to the high end of the applicable range, the District Court in effect incorporated his ARD into his criminal history category because the sentence ultimately imposed would have been at the middle of the guidelines range upwardly adjusted for his criminal history. n3 Thus, Rubashkin merely makes the unremarkable observation that his guideline range overlaps with the hypothetical range that would have applied if he was in the next higher criminal history category. This [**11] is beside the point. At any given offense level, a number of the ranges along the criminal history category axis overlap. The relevant inquiry is not whether the ranges overlap, but rather [*197] whether the District Court lawfully exercised its wide latitude in sentencing the defendant within the properly calculated guideline range.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 With an offense level of 12 and a criminal history category of I, the applicable guidelines range was 10 to 16 months. With the same offense level of 12 and a criminal history category of II, Rubashkin's guidelines range would have been 12 to 18 months.
As discussed above, we fail to see the relevance of this argument, and in any event, the Government correctly points out that even if Rubashkin's ARD had actually been considered, it would have resulted in only one criminal history point which would have left the defendant in the same criminal history category I. See USSG § 4A1.1(c).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Lastly, Rubashkin contends that the District Court erred in failing to state its reasons for [**12] imposing a 15-month term of incarceration. We disagree. 18 U.S.C. § 3553 requires a district court to state the reasons for its sentence when (1) the sentence departs from the applicable guideline range; or (2) the sentence is within the guideline range and that sentence exceeds 24 months. It follows that when the applicable guideline range is less than 24 months and the sentence ultimately imposed is within the applicable range, the court is not required to state its reasons. See United States v. Graham, 72 F.3d 352, 360 (3d Cir. 1995) (Nygaard, J., concurring).
For these reasons, we hold that the District Court did not err by inquiring into or considering Rubashkin's diversionary disposition when determining where, within the properly calculated guideline range, to sentence the defendant. Furthermore, we find that the District Court was not required to state the reasons for its sentence because the applicable guideline range was less than 24 months, and the sentence ultimately imposed was within that range.
IV.
For the reasons set forth above, we will affirm the judgment of the
http://inmateloc.bop.gov/locatordocs/home.jsp
Inmate Information for MOSHE RUBASHKIN
Inmate Register Number : 56932-066
Name : MOSHE RUBASHKIN
Age : 46
Race : WHITE
Sex : MALE
Date Released : 2/23/04
2) Per public records I've accessed:
There are few people with the name Moshe Rubashkin in the US. The only Moshe Rubashkin I could find in the US who was 46 years old was Rabbi Moshe Rubashkin of Brooklyn, NY.
3)
Note also that this was not a one time criminal act. There is a history:
"In his motion, Rubashkin claims that this Court improperly considered earlier criminal conduct that resulted in an Accelerated Rehabilitative Disposition (“ARD”) in a Pennsylvania trial court."
4)
Can anyone get copies of these?
1. RUBASHKIN, MOSHE, 6135502, 10/29/2002, JUDGMENT, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
2. RUBASHKIN, MOSHE, 01-CL-2129, JC-00002129-2001-CR, 6/4/2001, JUDGMENT, LEHIGH, PAJGT
3. RUBASHKIN, MOSHE, 000364748, 12/15/2000, JUDGMENT, BRONX COUNTY CLERK LIEN
4. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/15/2000, 23234/00, SUPREME COURT, BRONX COUNTY CLERKS OFFICE
5. COHEN, SHAUL, MECHANICS LIEN, 04/19/1999, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
6. RUBASHKIN, MOSHE, 2722, 10/29/1997, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
7. RUBASHKIN, MOSHE, 20042, 11/15/1995, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
8. RUBASHKIN, MOSHE Y, 1345982, 10/26/1995, JUDGMENT, KINGS COUNTY CLERK LIEN
9. RUBASHKIN, MOSHE Y, JUDGMENTS DOCKET, 10/26/1995, KINGS COUNTY CLERKS OFFICE
10. RUBASHKIN, MOSHE ET. AL., JC-00000065-1995-SL, 2/13/1995, STATE TAX LIEN, LEHIGH, PATXLN
11. RUBASHKIN, MOSHE, 00006197392, 3/4/1993, JUDGMENT, SATISFIED, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
12. RUBASHKIN, MOSHE, 00000106390, 12/31/1990, JUDGMENT, SULLIVAN COUNTY CLERK LIEN
13. RUBASHKIN, MOSHE, 00002761490, 12/17/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN
14. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
15. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
16. RUBASHKIN, MOSHE, 00001678787, 3/23/1990, JUDGMENT, KINGS COUNTY CLERK LIEN
17. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/89, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
18. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/87, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
19. RUBASHKIN, MOSHE, 00001698789, 3/22/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN
5)
I believe he has ties to the following:
1. AF SERVICES INC., CORPORATION (PROFIT), 9/9/2002, 9/9/2002, 269607, IOWA SECRETARY OF STATE
2. AF SERVICES INC., CORPORATION (PROFIT), 8/21/2002, 8/21/2002, C0145177, IDAHO SECRETARY OF STATE
3. MONTEX BLEACHERY INC., INCORPORATED BUSINESS, IN GOOD STANDING (ACTIVE), 2720832, PASOS
4. MONTEX TEXTILES LTD., FOREIGN BUSINESS, IN GOOD STANDING (ACTIVE), 1503592, PASOS
5. Inactive - MONTEX TEXTILES LTD, 1101 S 6TH ST, ALLENTOWN,, PA , TEL: 610-437-4679, ABI-NO: 000448043, 10/8/2002
6. MONTEX TEXTILE LTD, PA , May 16, 2003, 120 words, DUNS: 04-513-7411
7. R AND M DIAMOND, 2/9/2001, 81721, KINGS COUNTY, NEW YORK, ASSUMED BUSINESS NAMES (fictitious name)
8. BAHERE KNIT INDUSTRIES LTD, NY , June 03, 1994, 117 words, DUNS: 83-284-7552
6)
The New York Times
September 23, 1983
Sec.B,Pg.3
4 HASIDIM HELD FOLLOWING CLASH WITH POLICE
By LINDSEY GRUSON
Nine police officers were slightly injured yesterday and four people arrested in a melee between the police and Orthodox Jews leaving a synagogue holiday service in Brooklyn, the police said.
A police spokesman, Chief of Patrol Robert Johnston, said the trouble started at 1:45 P.M. when a city bus drove up Kingston Avenue in the Crown Heights section and nearly hit a man and a woman crossing the street. The couple, Hasidic Jews, had attended a service celebrating Succoth in the main synagogue of the Lubavitch movement.
The man, identified as Levy Weingarten, 27 years old, of 7 Balvour Place, threw a rock that broke the bus's rear-view mirror, Chief Johnston said. The driver called the police.
Religious Rule Involved
When officers tried to put Mr. Weingarten into a police car, he resisted. Orthodox Jews do not ride on holidays. Chief Johnston said 300 other worshipers then attacked the officers.
He said that most of the officers injured suffered cuts and scratches during the shoving and kicking that followed. He said that none of the worshipers were hurt.
''It was an attempt by the community to take a prisoner away from the police because putting the person in custody in a car would violate their religious faith,'' Chief Johnston said.
Arrested in addition to Mr. Weingarten were Eric Jacobs, 25, of 1715 Union Street; Moshe Rubashkin, 25, of 435 Crown Street, and Israel Shimtov, 43, of 1594 Carroll Street. Mr. Weingarten was charged with malicious assault and the others with simple assault.
About 250 Hasidim later demonstrated to protest the police action.
7)
The New York Times
December 8, 1983
Sec. B,pg.4
3 Hasidim Indicted
Three Hasidim, including a rabbi, were indicted yesterday on felony assault and riot charges stemming from a melee between a group of Hasidim and the police in the Crown Heights section of Brooklyn on Sept. 22. Nine officers were reported hurt.
The police said the incident began when a bus nearly hit a couple leaving a synagogue after services for Succoth, the Feast of Tabernacles, and a man arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews are not allowed to ride on holy days.
Charged with felonies were Rabbi Israel Shemtov, 43 years old; Eric Jacobs, 25, and Moshe Rubashkin, 25.
The man seized in the rock-throwing, Levi Weingarten, 27, was charged with criminal mischief, a misdemeanor. The police said after the incident that they had offered to walk him to the station house, but that their way was blocked and they put him in the car.
The suspects' lawyer, Ronald M. Kleinberg, said the four were victims of discrimination and assault in the incident.
8)
The New York Times
May 8, 1985
Sec.B,Pg.9
2 Plead Guilty In Hasidic Melee
Two Hasidic Jews have pleaded guilty to misdemeanor charges stemming from a melee between a large group of Hasidim and the police in Brooklyn in September 1983, the Brooklyn District Attorney's office said yesterday.
The police said the incident, in the Crown Heights area, began when a city bus nearly hit a couple leaving a synagogue after Succoth services and a man who was arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews do not ride on that holiday.
The men who pleaded guilty, were indicted on felony assault charges in December 1983. As the result of plea agreements, one man, 26-year-old Eric Jacobs, pleaded guilty Monday to obstructing governmental administration, said Linda Sachs, a spokesman for the prosecutor's office. She said that the second man, Moshe Rubashkin, also 26, pleaded guilty Monday to that charge and to riot in the second degree and that both men would be sentenced to three years' probation and 300 hours of community service.
9)
The New York Times
January 4, 2000
Sec.B, Pg.8
Paid Notice: Deaths
...
LIPSHIE-Geraldine. The friends and supporters of Colel ChabadLubavitch mourn the passing of our long-time friend, supporter and past guest of honor Geraldine Lipshie.
...
LIPSHIE-Geraldine. Agriprocessors, Inc. and all its affiliates send condolences to our long-time good friend, Mr. Norman Lipshie. Through whose guidance our companies have attained great heights, on the passing of his noble wife, Geraldine Lipshie. Together with you we will miss Geraldine..who was much more than a friend. May you be comforted amongst the mourners of Zion and Jerusalem. Mr. & Mrs. Avraham A. Rubashkin Mr. & Mrs. Sholom M. Rubashkin Mr. & Mrs. Heshy Rubashkin Mr. & Mrs. Yossi Rubashkin Mr. & Mrs. Moshe Rubashkin
...
10)
FACTORY OWNER CHARGED WITH BANK FRAUD; [SIXTH Edition]
The Morning Call. Morning Call. Allentown, Pa.: Jun 7, 2002. pg. B.3
Text Word Count 146
Abstract (Document Summary)
[Moshe Rubashkin], 43, of Brooklyn, N.Y., wrote checks payable to Montex from an account at First Choice Associates in Brooklyn, an account that he knew did not have the funds to cover the checks, prosecutors allege...
11)
Moshe Rubashkin business dealings:
http://decisions.courts.state.ny.us/nyscomdiv/oct02/604422-01.pdf
12)
UNITED STATES OF AMERICA v. MOSHE RUBASHKIN, Appellant.
No. 02-4180
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
74 Fed. Appx. 192; 2003 U.S. App. LEXIS 18073
July 23, 2003, Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
August 29, 2003, Filed
NOTICE: [**1] RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: On appeal from the United States District Court for the Eastern District of Pennsylvania. (No. 02-CR-333). District Judge: The Honorable Herbert J. Hutton.
United States v. Rubashkin, 2003 U.S. Dist. LEXIS 4435 (E.D. Pa., Mar. 19, 2003)
DISPOSITION: Affirmed.
COUNSEL: For United States of America, Appellee: Bernadette A. McKeon, Office of the United States Attorney, Philadelphia, PA.
For Moshe Rubashkin, Appellant: Nicholas J. Nastasi, Philadelphia, PA.
JUDGES: Before: ALITO, FUENTES, BECKER, Circuit Judges.
OPINIONBY: FUENTES
OPINION: [*193] OPINION OF THE COURT
FUENTES, Circuit Judge.
Defendant Moshe Rubashkin appeals the entry of judgment and the imposition of a 15-month term of incarceration in connection with his plea of guilty to one count of bank fraud. Rubashkin contends that the District Court erred in considering an earlier incident in which Rubashkin was placed in an Accelerated Rehabilitation Disposition ("ARD") program as a result of his violation of the Pennsylvania Workmen's Compensation Law. According to the defendant, his participation in the ARD did not result in a disposition of guilt. In addition, he argues [**2] that the District Court erred in failing to give an explanation for its 15-month sentence. We find that the District Court did not err in considering the events surrounding Rubashkin's ARD for purposes of determining his sentence within the relevant guideline range and that the Court's statement of reasons was appropriate under 18 U.S.C. § 3553. Therefore, we will affirm the judgment of the District Court.
I.
Rubashkin was the owner and president of Montex Textiles Ltd. ("Montex"), a supplier of raw textiles material located in Allentown, PA. In August 1998, Montex opened separate payroll and general expense accounts with First Union National [*194] Bank ("First Union"). Rubashkin and another individual had signatory authority on both of Montex's accounts.
The Government's investigation revealed that between March 25, 1999 and March 30, 1999, Rubashkin attempted to deposit three checks payable to Montex, all drawn from the account of an entity named First Choice Associates, into Montex's First Union accounts. In the aggregate, the three checks totaled approximately $ 325,000. Rubashkin withdrew or used most of the funds which he attempted to deposit. Shortly [**3] thereafter, First Union learned that there were insufficient funds in the account from which the deposited checks were drawn. The fraud resulted in a loss to the bank in excess of $ 300,000.
Prior to the offense conduct in question, Rubashkin was involved in a separate punishable offense in connection with his operation of Montex. Pennsylvania law requires companies to secure worker's compensation insurance for their employees. See 77 Pa. Cons. Stat. Ann. § 501. Nevertheless, when an employee of Montex became injured and attempted to recover disability payments, it became apparent that Rubashkin, in his capacity as president of Montex, had failed to secure the required insurance. On May 4, 2001, Rubashkin was placed in an ARD program for a period of 18 months. Subsequently, he was ordered to pay $ 968 in fines, costs, and restitution.
On June 6, 2002, the defendant was charged in a one-count information with bank fraud in violation of 18 U.S.C. § 1344. Pursuant to a negotiated plea agreement, Rubashkin entered a plea of guilty to the sole count on July 31, 2002. The District Court conducted a sentencing hearing on November 6, 2002. At the hearing, the [**4] District Court accepted the parties' modification of Rubashkin's guideline offense level, which (1) eliminated the two-level enhancement for more than minimal planning, and (2) correspondingly reduced the acceptance of responsibility reduction to two levels, instead of three. The Court also denied the defendant's motion for downward departure. The Court thus determined that Rubashkin's guideline offense level was 12, with a criminal history category of I, reflecting no criminal history points. The criminal history computation was made without regard to Rubashkin's ARD. Therefore, the applicable guideline range for defendant's offense was 10 to 16 months of imprisonment.
At the sentencing hearing, the District Court also inquired into Rubashkin's ARD. See Joint App. at 27a, 39a-40a. When asked if the paragraph in the pre-sentence investigation report ("PSR") relating to his ARD was true, Rubashkin confirmed that it was. Specifically, the Court and the defendant engaged in the following colloquy:
THE COURT: Before you leave, I'd like you to take a moment and turn to page six of the presentence investigation report and read paragraph 31 to yourself. ...
THE COURT: Is [**5] that correct?
THE DEFENDANT: Yes.
THE COURT: Thank you. That's all I wanted to know.
Id. at 39a-40a.
The Court then sentenced the defendant to 15 months of imprisonment and 5 years of supervised release and ordered restitution in the amount of $ 232,936.99.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the entry of judgment and imposition of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to the [*195] extent that Rubashkin's appeal alleges errors of law.
III.
Rubashkin's primary argument on appeal is that the District Court erred in considering his May 2001 ARD in determining his sentence. n1 In doing so, Rubashkin relies heavily on § 4A1.2(f) of the United States Sentencing Guidelines ("USSG"). At the outset, we note that neither the Probation Office, nor the District Court violated § 4A1.2(f) in the computation of his criminal history category. Section 4A1.2 is titled "Definitions and Instructions for Computing Criminal History," and subsection fmerely provides that, "diversion from the judicial process without [**6] a finding of guilt (e. g., deferred prosecution) is not counted [in the computation of criminal history]." USSG § 4A1.2(f). In the present case, both the Probation Office and the District Court recognized that Rubashkin's ARD was a diversionary disposition within the meaning of § 4A1.2(f), and therefore, the defendant was not assessed any criminal history points. In fact, Rubashkin cannot point to any error in the computation of his criminal history category.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Rubashkin's argument on appeal requires some clarification. He contends that the District Court actually considered his ARD and that the ARD was a factor in the Court's decision to sentence him at the high end of the applicable guideline range. To some extent, this is speculation because, beyond the colloquy above, the District Court did not expressly state what impact the ARD had on its ultimate sentence. We also agree with the Government that there were other factors which could have contributed to the decision to sentence the defendant to 15 months of incarceration. See Appellee's Brief, at 18 n. 6. Nevertheless, the record reflects that the District Court inquired about the ARD and issued its sentence immediately following the colloquy above. Therefore, we accept Rubashkin's argument that his ARD was likely a consideration in the District Court's sentencing decision, and our analysis proceeds from this general presumption. We will not, however, speculate as to whether Rubashkin's ARD was the sole or primary reason for his ultimate sentence.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**7]
The most that can be said of the defendant's ARD is that the District Court may have considered it, in conjunction with other possible relevant factors, in determining where, within the properly calculated guideline range, to sentence Rubashkin. As to this inquiry, § 4A1.2(f) simply does not control. Rather, that inquiry is guided by § 1B1.4 which provides: "in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." USSG § 1B1.4 (emphases added). n2 The commentary to § 1B1.4 expressly contemplates the scenario where a court could consider an unindicted offense when determining where to sentence a defendant within the guideline range: "if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for sentencing above the guideline range." USSG [**8] § 1B1.4, commentary. The language of § 1B1.4 makes it clear that "Congress intended that no limitation [*196] would be placed on the information that a court may consider in imposing an appropriate sentence." Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 USSG § 1B1.4 explicitly references 18 U.S.C. § 3661 which states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Although district courts may consider a broad range of factors at sentencing, we recognize that the breadth of § 1B1.4 is limited to background information not "otherwise prohibited by law." The commentary to § 1B1.4 expressly references the policy statements in Chapter 5, Part H of the Sentencing Guidelines as providing examples of factors that should not be considered or should only be considered for limited purposes. USSG § 1B1.4, commentary. For instance, [**9] as the Government observes, § 5H1.10 provides that considerations of race, sex, national origin, creed, religion, and socio-economic status are not relevant in the determination of a sentence. We note that none of the policy statements in Chapter 5, Part H suggests, either explicitly or implicitly, that a diversionary disposition should not be considered in sentencing decisions under § 1B1.4.
This Court's precedents support the "considerable leeway" afforded to sentencing courts pursuant to § 1B1.4. See United States v. Baird, 109 F.3d 856, 863 (3d Cir. 1997). In Baird, we addressed the issue of whether conduct underlying dismissed counts was relevant in deciding whether to depart upward from the guidelines range. We held that "conduct underlying dismissed counts--which is conduct that is neither formally charged nor an element of the offense--may be considered at sentencing," so long as the dismissed counts related in some way to the offense conduct. Id. at 864-65. Our decision relied in part on the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997), where the Court held [**10] that a sentencing court may consider the conduct underlying an acquitted charge pursuant to § 1B1.4, as long as the conduct at issue has been proved by a preponderance of the evidence. Given that § 1B1.4 permits the consideration of conduct underlying dismissed counts and conduct of which a defendant has been acquitted, there is simply no support for Rubashkin's position that the District Court was not permitted to consider his diversionary disposition.
Notwithstanding the District Court's straightforward consideration of his ARD, Rubashkin contends that the Court's sentencing decision was improper in two additional respects. First, Rubashkin argues that by considering his diversionary disposition and sentencing him to the high end of the applicable range, the District Court in effect incorporated his ARD into his criminal history category because the sentence ultimately imposed would have been at the middle of the guidelines range upwardly adjusted for his criminal history. n3 Thus, Rubashkin merely makes the unremarkable observation that his guideline range overlaps with the hypothetical range that would have applied if he was in the next higher criminal history category. This [**11] is beside the point. At any given offense level, a number of the ranges along the criminal history category axis overlap. The relevant inquiry is not whether the ranges overlap, but rather [*197] whether the District Court lawfully exercised its wide latitude in sentencing the defendant within the properly calculated guideline range.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 With an offense level of 12 and a criminal history category of I, the applicable guidelines range was 10 to 16 months. With the same offense level of 12 and a criminal history category of II, Rubashkin's guidelines range would have been 12 to 18 months.
As discussed above, we fail to see the relevance of this argument, and in any event, the Government correctly points out that even if Rubashkin's ARD had actually been considered, it would have resulted in only one criminal history point which would have left the defendant in the same criminal history category I. See USSG § 4A1.1(c).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Lastly, Rubashkin contends that the District Court erred in failing to state its reasons for [**12] imposing a 15-month term of incarceration. We disagree. 18 U.S.C. § 3553 requires a district court to state the reasons for its sentence when (1) the sentence departs from the applicable guideline range; or (2) the sentence is within the guideline range and that sentence exceeds 24 months. It follows that when the applicable guideline range is less than 24 months and the sentence ultimately imposed is within the applicable range, the court is not required to state its reasons. See United States v. Graham, 72 F.3d 352, 360 (3d Cir. 1995) (Nygaard, J., concurring).
For these reasons, we hold that the District Court did not err by inquiring into or considering Rubashkin's diversionary disposition when determining where, within the properly calculated guideline range, to sentence the defendant. Furthermore, we find that the District Court was not required to state the reasons for its sentence because the applicable guideline range was less than 24 months, and the sentence ultimately imposed was within that range.
IV.
For the reasons set forth above, we will affirm the judgment of the
Moshe The Felon in the news
Just a little somthing that anyone could see on the world wide web
June 02, 2005
The Legacy Of Rabbi Moshe Rubashkin
… Regardless of how it is funded, administration officials, led by Eric D. Weiss, the director of building standards and safety, argued that there is an immediate need to demolish the building.
The 41/2-story, shuttered textile factory was gutted in an April 19 blaze that took city firefighters two days to extinguish. The fire was determined to be an arson.
The building's owner, Skyline Industries of Brooklyn, N.Y., has mostly ignored a raze or repair order that was sent registered mail, Weiss said. Skyline did have the building's boiler removed and sold through a local contractor, he said.
''They're picking the carcass clean rather than taking their responsibility,'' Weiss told council's Community and Economic Development Committee.
''I don't feel good about this. I feel like I'm asking for the last $400,000 in the budget. But it's a dangerous situation. Someone will be killed.''
The building sits at the edge of a residential neighborhood and is less than four blocks from Jefferson Elementary School, making it an attractive ''playground'' for children, Weiss said. A temporary fence erected around the decrepit hulk has been broken through several times.
Adding to the urgency, Weiss said, is the impending summer vacation for Allentown schoolchildren.…
A felon. A thief. A rabbi. The elected president of the Chabad-controlled Crown Heights Community Council. Need we say more?
June 02, 2005
The Legacy Of Rabbi Moshe Rubashkin
… Regardless of how it is funded, administration officials, led by Eric D. Weiss, the director of building standards and safety, argued that there is an immediate need to demolish the building.
The 41/2-story, shuttered textile factory was gutted in an April 19 blaze that took city firefighters two days to extinguish. The fire was determined to be an arson.
The building's owner, Skyline Industries of Brooklyn, N.Y., has mostly ignored a raze or repair order that was sent registered mail, Weiss said. Skyline did have the building's boiler removed and sold through a local contractor, he said.
''They're picking the carcass clean rather than taking their responsibility,'' Weiss told council's Community and Economic Development Committee.
''I don't feel good about this. I feel like I'm asking for the last $400,000 in the budget. But it's a dangerous situation. Someone will be killed.''
The building sits at the edge of a residential neighborhood and is less than four blocks from Jefferson Elementary School, making it an attractive ''playground'' for children, Weiss said. A temporary fence erected around the decrepit hulk has been broken through several times.
Adding to the urgency, Weiss said, is the impending summer vacation for Allentown schoolchildren.…
A felon. A thief. A rabbi. The elected president of the Chabad-controlled Crown Heights Community Council. Need we say more?
Our First Post
BH
We are interested in creating A name for Rabbi Moshe Rubashkin, that would stick, and that before long he ( Moshe Rubashkin) would be known by this name, and that's it.
If anyone has ideas please "zay azoy gut" and comment.
For now it would seem that MOSHE THE FELON is taking the cake, winning the day.
Moshe the felon, aah what A m'chaye, A nachas to his family, and A sence of pride for all of the Mishpachas Hachasidim.
We are interested in creating A name for Rabbi Moshe Rubashkin, that would stick, and that before long he ( Moshe Rubashkin) would be known by this name, and that's it.
If anyone has ideas please "zay azoy gut" and comment.
For now it would seem that MOSHE THE FELON is taking the cake, winning the day.
Moshe the felon, aah what A m'chaye, A nachas to his family, and A sence of pride for all of the Mishpachas Hachasidim.
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