U.S. v. Weingarten

• Citation: 632 F.3d 60
• Decision Date: 18 January 2011
• Docket Number: Docket No. 09–2043–cr.
• Parties: UNITED STATES of America, Appellee,v.Israel WEINGARTEN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

632 F.3d 60

UNITED STATES of America, Appellee,

v.Israel WEINGARTEN, Defendant–Appellant.

Docket No. 09–2043–cr.

United States Court of Appeals, Second Circuit.

Argued: April 19, 2010.Decided: Jan. 18, 2011.

Andrea Goldbarg, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.Stanley Neustadter, New York, NY (Demosthenes Lorandos and Ashish S. Joshi, Lorandos & Associates, Ann Arbor, MI, on the brief), for Defendant–Appellant.Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.DEBRA ANN LIVINGSTON, Circuit Judge:

Defendant–Appellant Israel Weingarten (“Weingarten”) appeals from a May 8, 2009, judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), sentencing him to a total of 30 years' imprisonment and three years' supervised release following his conviction by a jury on two counts of transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a), and three counts of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Weingarten was sentenced to ten years' imprisonment on each of the five counts, with the sentences pursuant to the first three counts—the two counts under § 2423(a) and the first count under § 2423(b)—to run consecutively, and the sentences pursuant to the remaining two counts to run concurrently with each other and with those under the first three counts.

Prior to trial, Weingarten moved to dismiss the charges against him, alleging, inter alia, that Count Three of the indictment—the § 2423(b) count for which he ultimately received a ten year, consecutive sentence—was improper because the alleged conduct involved only travel between Belgium and Israel. He renews his arguments regarding Count Three on appeal. According to Weingarten, travel that is without a territorial nexus to the United States is not “travel[ ] in foreign commerce” within the meaning of § 2423(b). Alternatively, if the statute does include such travel, Weingarten argues that it exceeds Congress's authority under the Foreign Commerce Clause.

Although we hold that § 2423(b) applies to conduct occurring outside the United States, we conclude that travel between two foreign countries, absent any territorial nexus to the United States, does not constitute “travel [ ] in foreign commerce” for the purpose of § 2423(b). We thus do not reach Weingarten's constitutional argument. In an accompanying summary order filed today, we reject Weingarten's remaining challenges to his conviction. Accordingly, we reverse his conviction on Count Three, affirm his conviction on Counts One, Two, Four, and Five, and remand for resentencing on those affirmed counts of conviction.

BACKGROUND

Because “the task of choosing among competing, permissible inferences is for the [jury and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001), we are required to review the evidence “in the light most favorable to the government,” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004). Accordingly, we “resolve all issues of credibility in favor of the jury's verdict.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (internal quotation marks omitted); see generally Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Evidence introduced at Weingarten's trial demonstrated that at the time of the events underlying his conviction on multiple counts, Weingarten and his family were all members of the Satmar sect of Hasidic Judaism. Weingarten and his ex-wife have a total of eight children, the oldest being a son born shortly after their marriage in 1979, and the next oldest being “Doe,” a daughter born in 1981. Weingarten is a United States citizen, but he moved with his family to Antwerp, Belgium in approximately 1984.

When Doe was nine or ten years old, Weingarten began abusing her sexually. This abuse continued for more than six years and worsened over time. When Doe first informed her mother that she had been abused, Weingarten beat Doe with his fists and kicked her between her legs. When Doe was thirteen or fourteen years old, she began to resist Weingarten's advances and threatened to tell others about the abuse. After an occasion on which Doe's mother entered her bedroom to find Weingarten and Doe in bed together, Doe again informed her mother of the abuse. Weingarten warned Doe that she would not be believed because of the respect in which he was held in the Satmar community, and because she would have no evidence of the abuse, as he had never had intercourse with her. Doe's mother promised to confront Weingarten, but when she did so, Weingarten beat Doe so severely that he would not permit her to return to school for several weeks for fear that her bruises would be seen. When Doe did return to school, she spoke with her principal about what was occurring. Eventually, a rabbi of the Belgian Satmar community brought Doe before a rabbinical court, where she testified against her father. Afterward, the rabbi arranged to have Doe sent to England to live with his daughter and attend school there. Doe remained in England for several months.

Weingarten's criminal charges covered events beginning in 1997, after Doe returned to Belgium. Upon Doe's return from England, Weingarten informed her that the family, resident in Belgium for over thirteen years, would be moving to Israel because of the bad name she had given them by complaining publicly about the abuse. On April 14, 1997, the family traveled from Belgium to Bet Shemesh, Israel. While in Bet Shemesh, Doe, then 16, was sexually abused by her father. She was not permitted to be in public alone, and was required to sleep separately from the other children.

On May 13, 1997, Weingarten, his wife, Doe, and her younger siblings returned to Antwerp to finish packing for the move to Israel. Weingarten continued to sexually abuse Doe almost every night, often while her mother slept in the same room. The family subsequently returned to Israel, where the abuse continued.

On July 30, 1997, Weingarten and Doe traveled from Israel to Brooklyn, New York, where Weingarten's father was ill and dying. During the visit, Weingarten sexually abused Doe at her uncle's house in Brooklyn. After Weingarten's father died, Weingarten and Doe flew from Brooklyn to Antwerp, arriving on August 19. Alone with Doe at the apartment in Antwerp for about a month, Weingarten sexually abused her “night and day, every day.” Trial Tr. 290:14. Doe informed her father that she wanted to return to Israel. Weingarten consented, but as a condition of her return, he required Doe to record a conversation with a male neighbor, in which she was to give the impression that she previously had seduced the neighbor. Weingarten informed Doe that he planned to play the tape for rabbis in the Satmar community, so that they would believe his claims that she was sexually promiscuous and he had never molested her.

Doe returned to Israel in September 1997. She and her mother contacted the rabbi in Belgium who had previously been involved in sending Doe to England, who then assisted Doe in returning to school there. Although Weingarten later traveled to England and confronted Doe, the police intervened, she successfully obtained a protective order against him, and no further abuse occurred. Doe remained in England for some time, but eventually moved to New York, where she married a man from the Satmar community. The marriage lasted only about a year, after which Doe abandoned her religious life, left New York, and legally changed her name.

Weingarten was not prosecuted until years later, when the abuse was brought to the attention of the Federal Bureau of Investigation. A sealed federal indictment was filed against him on August 18, 2008. Counts One and Four charged him in relation to his July 30, 1997, travel from Israel to Brooklyn, alleging respectively that he transported Doe in foreign commerce with the intent that she engage in unlawful sexual activity, in violation of 18 U.S.C. § 2423(a), and that he traveled in foreign commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Counts Two and Five of the indictment charged Weingarten with the same offenses, respectively, in relation to his August 19, 2007, travel from Brooklyn to Antwerp. Finally, Count Three charged Weingarten with a separate violation of 18 U.S.C. § 2423(b) in relation to his April 14, 1997, travel between Belgium and Israel at the time he and his family relocated from Antwerp to Bet Shemesh. After a seven day jury trial, Weingarten was convicted on all five counts against him. This appeal followed.

DISCUSSION

With respect to Count Three, Weingarten argues that the district court erred in failing to dismiss that count of the indictment, which related to his April 1997 travel from Belgium to Israel, on the grounds that travel involving no territorial nexus with the United States is not “travel[ ] in foreign commerce” as required by § 2423(b), and if such travel is in fact covered by the statute, it exceeds the scope of Congress's authority under the Foreign Commerce Clause. We review de novo a district court's legal conclusions, including its interpretations of federal statutes and determinations regarding their constitutionality. See, e.g., United States v. Stewart, 590 F.3d 93, 109 (2d Cir.2009); City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir.2008). Because our answer to the question of statutory interpretation presented here requires reversal of Weingarten's conviction pursuant to Count Three, we address only that issue, and do not reach his constitutional challenge to § 2423(b).

I. Section 2423(b) Is Applicable to Extraterritorial Conduct

At the...