864 F.3d 253 (3rd Cir. 2017), 15-4053, United States v. Stimler

Docket Nº:15-4053, 15-4094, 15-4095
Citation:864 F.3d 253
Opinion Judge:ROTH, Circuit Judge
Party Name:UNITED STATES OF AMERICA v. BINYAMIN STIMLER, Appellant in No. 15-4053; UNITED STATES OF AMERICA v. JAY GOLDSTEIN a/k/a Yaakov JAY GOLDSTEIN, Appellant in No. 15-4094; UNITED STATES OF AMERICA v. MENDEL EPSTEIN, Appellant in No. 154095;
Attorney:Nathan Lewin, Esq. (Argued), Lewin & Lewin, Washington, DC, Counsel for Appellant Stimler. Gedalia M. Stern, Esq., Clifton, NJ, Counsel for Appellant Stimler. Aidan P. O'Connor,Esq. (Argued), Pashman Stein Walder Hayden, P.C., Hackensack, NJ, Counsel for Appellant Goldstein. Laura K. Gasiorowski,...
Judge Panel:Before: CHAGARES, RESTREPO and ROTH, Circuit Judges. RESTREPO, Circuit Judge, concurring in part and concurring in the judgment. RESTREPO, Circuit Judge, concurring in part and concurring in the judgment.
Case Date:July 07, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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864 F.3d 253 (3rd Cir. 2017)

UNITED STATES OF AMERICA

v.

BINYAMIN STIMLER, Appellant in No. 15-4053;

UNITED STATES OF AMERICA

v.

JAY GOLDSTEIN a/k/a Yaakov JAY GOLDSTEIN, Appellant in No. 15-4094;

UNITED STATES OF AMERICA

v.

MENDEL EPSTEIN, Appellant in No. 154095;

Nos. 15-4053, 15-4094, 15-4095

United States Court of Appeals, Third Circuit

July 7, 2017

Argued January 25, 2017.

As Amended July 17, 2017.

As Amended July 19, 2017.

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On Appeal from the United States District Court for the District of New Jersey. (D. C. Nos. 3-14-cr-00287-005, 3-14-cr-00287-003 and 3-14-cr-00287-001). District Judge: Honorable Freda L. Wolfson.

Nathan Lewin, Esq. (Argued), Lewin & Lewin, Washington, DC, Counsel for Appellant Stimler.

Gedalia M. Stern, Esq., Clifton, NJ, Counsel for Appellant Stimler.

Aidan P. O'Connor,Esq. (Argued), Pashman Stein Walder Hayden, P.C., Hackensack, NJ, Counsel for Appellant Goldstein.

Laura K. Gasiorowski, Esq., Robert G. Stahl, Esq., Stahl Farella, Westfield, NJ; Peter Goldberger, Esq. (Argued), Ardmore, PA, Counsel for Appellant Epstein.

Mark E. Coyne, Esq., Office of United States Attorney, Newark, NJ; Norman Gross, Esq. (Argued), Glenn J. Moramarco, Esq. (Argued), Office of United States Attorney, Camden, NJ, Counsel for Appellee.

Before: CHAGARES, RESTREPO and ROTH, Circuit Judges. RESTREPO, Circuit Judge, concurring in part and concurring in the judgment.

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AMENDED OPINION

ROTH, Circuit Judge

Binyamin Stimler, Jay Goldstein, and Mendel Epstein are Orthodox Jewish rabbis who were charged with various kidnapping-related offenses, stemming from their involvement in a scheme through which they, along with others,1 sought to assist Orthodox Jewish women to obtain divorces from recalcitrant husbands. After a jury trial, all three defendants were convicted of conspiracy to commit kidnapping. The defendants now appeal various rulings made by the District Court before, during, and after trial. Because we find no merit in any of the defendants' arguments, we will affirm all three convictions.

I

2

In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a " get " (pluralized as " gittin " ), which must, in turn, be signed by an " eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an " agunah " (pluralized as " agunot " ), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a " beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue " psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get. To assist an agunah to obtain a get is a " mitzvah," or religious commandment of the Orthodox Jewish faith. Starting in at least 2009, Stimler, Epstein, and Goldstein

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participated in the beth din process to help agunot obtain gittin. They worked with " tough guys" or " muscle men" in exchange for money to kidnap and torture husbands in order to coerce them to sign the gittin.

In 2013, the FBI learned of the kidnapping ring and began investigating the rabbis. As part of this investigation, an FBI agent posed as an agunah and approached Epstein. The agent met with Epstein at his home in New Jersey. Epstein suggested that kidnapping would be appropriate in the agent's " situation," promising that " what we're doing is basically gonna be kidnapping a guy for a couple of hours and beatin' him up and torturing him . . .." 3 One month after this meeting, Epstein and Goldstein found a potential location for the kidnapping. Epstein then convened a beth din at which he, Goldstein, and a third rabbi presided. Together, the rabbis issued a psak kefiah authorizing the use of force against the agent's " husband." Epstein and the agent subsequently planned the details, including the date, location, and manner of the kidnapping of the " husband." On the day of the kidnapping, a team of rabbis and " tough guys" assembled at the agreed-upon location. Goldstein and Stimler arrived in disguise and Stimler conducted counter-surveillance of the area.

Once the kidnapping team had assembled, the FBI arrested them. Epstein and Stimler were each charged with one substantive kidnapping count, one count of attempted kidnapping, and one count of conspiracy to commit kidnapping. Goldstein was charged with two substantive kidnapping counts, one count of attempted kidnapping, and one count of conspiracy.

During its preparation for trial, the government applied for a court order, pursuant to Section 2703(d) of the Stored Communications Act (SCA), compelling AT& T to turn over historic cell site location information (CSLI) generated by Goldstein's phone. CSLI is generated every time a cell phone user sends or receives a call or text message; when the call or message is routed through the nearest cell tower, the user's service provider generates and retains a record identifying the particular tower through which the communication was routed.4 In more densely populated areas, cell towers are able to triangulate an individual's approximate location based on the individual's distance from the three nearest towers. Thus, while less precise than traditional GPS systems, historic CSLI records can nonetheless generate a rough profile of an individual's approximate movements based on the phone calls that individual makes over a period of time. The order for such records, covering a total of 57 days of Goldstein's location history, was issued by a magistrate judge on October 30, 2014.

II

The defendants filed numerous pretrial motions before the District Court; we consider only the three which are relevant to this appeal. First, Goldstein moved to suppress the CSLI obtained pursuant to the SCA, arguing that cell phone users have a reasonable expectation of privacy in such metadata, implicating the Fourth Amendment's warrant requirement. The District Court denied Goldstein's motion, reasoning that collection of CSLI " does not involve physical intrusion upon [Goldstein's] property or any real time tracking information" and did not " concern the search or seizure of a cell phone, or the content of any

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communication." 5

Second, all three defendants sought dismissal of the indictment pursuant to the Religious Freedom Restoration Act (RFRA), arguing that the government's decision to prosecute them substantially burdened their sincerely held religious beliefs and was not the least restrictive means of furthering any compelling government interest. Stimler raised the additional argument that RFRA required him to be severed from the trial of Epstein and Goldstein. The District Court rejected these arguments, finding that the government's decision to prosecute the defendants did not substantially burden their religious exercise.6 In the alternative, the District Court found that the government had a compelling interest in the uniform prosecution of kidnapping laws and that the prosecution of the defendants was the least restrictive way of achieving that interest.7 The District Court summarily rejected Stimler's request for severance, reasoning that the joint prosecution was not a substantial burden and that " [t]here is nothing in [RFRA] which suggests that it can be used to argue for severance." 8

Third, the defendants sought to introduce evidence of their religious beliefs and, more broadly, of Orthodox Jewish law in order to negate the motive element of the kidnapping statute, or, in the alternative, to demonstrate consent on the part of the husbands. The District Court refused to admit such evidence, finding that it was irrelevant both to motive and to the affirmative defense of consent. In the alternative, the District Court held that the evidence would be unduly prejudicial under Rule 403 of the Federal Rules of Evidence, as it " would carry a significant potential for jury nullification." 9

At trial, the government introduced a variety of evidence against the defendants. As relevant here, the government introduced testimony from FBI agents placing Stimler and Goldstein at the site of the proposed kidnapping in a disguise. The agents stated that Stimler performed counter-surveillance at the site. The government also introduced the statements made about Goldstein by another rabbi at a beth din convened to determine the validity of a get obtained from one of the prior kidnappings. After both the government and the defense rested, the judge...

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