WASHINGTON — A federal appeals court panel has twice denied a request by CDR Financial Products founder David Rubin to delay his criminal trial over alleged bid-rigging, slated to begin in January, because his wife is dying of cancer.
Rubin, whose wife has pancreatic cancer, had asked a federal court in Manhattan on Dec. 7 to either delay the entire trial or separate Rubin’s trial from that of his codefendants and delay his trial.
The trial stems from an Oct. 29, 2009, grand jury indictment of Rubin, CDR Financial Products, former CDR chief financial officer Zevi (Stewart) Wolmark, and former CDR vice president Evan Andrew Zarefsky on nine criminal counts in connection with bid-rigging of municipal investment and derivatives contracts from as early as 1998 until at least November 2006.
In his Dec. 8 order denying the request, Judge Victor Marrero of the U.S. District Court for the Southern District of New York in Manhattan said that while he was “saddened to hear of Mrs. Rubin’s turn for the worse and sympathetic to the personal hardship Mr. Rubin faces as he prepares his defense while caring for his children and ailing wife … Mrs. Rubin’s deteriorating health cannot delay this trial.”
Marrero noted that Mrs. Rubin “was diagnosed with cancer prior to the initiation of her husband’s prosecution” and “has undergone debilitating treatments from the outset.”
“This case proceeded for well over a year before Mr. Rubin sought relief related to his wife’s health,” Marrero said.
The judge said the court had taken numerous steps to accommodate Rubin, such as allowing him to participate in conferences by telephone.
“The trial in this matter will be long, complicated, and resource-intensive,” Marrero said. “The court, government, and other defendants cannot wait in an indefinite limbo to begin a months-long trial upon the occurrence of an unpredictable and unfortunate event. Too many individuals and institutions have expended far too much effort to ready this case for trial after several adjournments.”
The judge said that since Rubin is the owner of CDR, his participation is critical to the trial of CDR and his codefendants.
But in a Dec. 20 conference call, Marrero asked if Mrs. Rubin’s doctors could provide more specific information about her condition.
On Dec. 22, Bradley Simon of Simon & Partners LLP in New York, which is representing Rubin, wrote Marrero, saying one of Mrs. Rubin’s doctors said that she remains too weak for chemotherapy and is in a “very precarious” and “dire” condition. Simon said her doctors have found a new tumor of residual cancer in her pancreas and are “conferring to determine what, if anything, can be done, at present, to save her life.”
Rubin then appealed Marrero’s ruling refusing a delay and asked the appeals court to issue a “writ of mandamus,” which is defined by a legal dictionary to be a command to prevent a disorder of justice.
On Dec. 23, a three-judge panel of the U.S. Court of Appeals for the Second Circuit denied Rubin’s appeal, writing, “We have long held that mandamus may not be used to overturn 'a considered discretionary determination of the trial date,’ even if we believe that a postponement 'would be a much wiser course.’ ”
“While the circumstances here might well warrant an adjournment of the trial, we cannot say that the experienced trial judge’s refusal to grant a continuance constitutes an 'exceptional circumstance amounting to a judicial usurpation of power or a clear abuse of discretion’ such as required to grant the 'extraordinary remedy’ of mandamus,” the panel said, referring to several previous court decisions.
Rubin then asked the panel to reconsider their decision.
The panel again denied the request, writing, “Having fully considered [Rubin’s] motion to reconsider, including the accompanying reply memorandum, the court determines that there is no reason to alter its previous decision and order filed Dec. 23, 2011.”
