State v. Eisemann

• Decision Date: 31 December 2020
• Docket Number: DOCKET NO. A-3781-18T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. OSHER EISEMANN, Defendant-Respondent/Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. OSHER EISEMANN, Defendant-Respondent/Cross-Appellant.

DOCKET NO. A-3781-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 15, 2020

December 31, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Alvarez and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 18-04-0059.

Lauren Bonfiglio, Deputy Attorney General, argued the cause for appellant/cross-respondent (Gurbir S. Grewal, Attorney General, attorney; Lauren Bonfiglio, of counsel and on the briefs).

Melissa Wernick and Lee D. Vartan argued the cause for respondent/cross-appellant (Chiesa Shahinian & Giantomasi, PC, attorneys; Lee D. Vartan, on the briefs).

PER CURIAM

A jury convicted defendant Osher Eisemann of two second-degree offenses: financial facilitation (money laundering), N.J.S.A. 2C:21-25(b)(1) (count three), and misconduct by a corporate official, N.J.S.A. 2C:21-9(c) and 2C:20-3(a) (count five). On April 29, 2019, the trial judge sentenced defendant to two downgraded concurrent two-year terms of probation, each requiring sixty days county jail time. He imposed the mandatory $250,000 penalty for money laundering. N.J.S.A. 2C:21-27.2(a). The judgment of conviction (JOC) was subsequently amended to reflect the mandatory consecutive sentence terms requirement found in N.J.S.A. 2C:21-27(c), of which the judge was initially unaware. The aggregate sentence was unchanged, however, as the judge restructured the terms of probation to one year, made them consecutive, and on each required defendant serve thirty days county jail time. For the reasons that follow, we affirm the convictions, but vacate and remand for resentencing before another judge.

Defendant founded a school for children with disabilities in 1993. Shortly thereafter, he incorporated a foundation to act as a fundraising organization for the school. Defendant was the executive director of the school and thefoundation; he served as the president of the foundation board of trustees. The school, although private, educates children placed by public school sending districts. The school is mainly funded, not by private donations, but by the tuition paid on behalf of public school students—in other words, local, state, and federal money. Thus, it is subject to regulation and oversight by the New Jersey Department of Education (DOE), including the calculation of annual tuition.

In June 2016, six search warrants were issued, supported by the New Jersey Division of Criminal Justice Detective Thomas Page's affidavit. The warrants, each for a specific place connected to the school, sought evidence regarding misapplication of entrusted property, N.J.S.A. 2C:21-15, and tampering with public records or information, N.J.S.A. 2C:28-7. After the seizure of the records, a state grand jury returned an indictment, later superseded by a charging document that included another offense, corruption of public resources, N.J.S.A. 2C:27-12(a)(1) and N.J.S.A. 2C:2-6.¹ Additionally, the original count three was replaced with the following:

(Financial Facilitation of Criminal Activity - Second

Degree)

OSHER EISEMANN

and

SERVICES FOR HIDDEN INTELLIGENCE, LLC

between on or about March 1, 2015, and on or about April 30, 2015, at the City of Edison, in the County of Middlesex, elsewhere, and within the jurisdiction of this Court, did engage in one or more transactions involving property, to wit: funds of $75,000 or more, which the said OSHER EISEMANN and SERVICES FOR HIDDEN INTELLIGENCE, LLC knew or which a reasonable person would believe to be derived from criminal activity to wit: Theft By Unlawful Taking, Misapplication of Entrusted Property or Property of Government, or Misconduct By Corporate Official, with the intent to facilitate or promote the criminal activity or knowing that the transaction(s) were designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity, that is the said OSHER EISEMANN or SERVICES FOR HIDDEN INTELLIGENCE, LLC, did transfer $75,000 or more in funds paid or donated to a private school for the handicapped, as identified to the Grand Jury, knowing that it was stolen or misapplied, to one or more entities or persons for the purpose of concealing or disguising the nature, location, source, ownership or control of the funds, contrary to the provisions of N.J.S.A. 2C:21-25(b), N.J.S.A. 2C:21-27 and N.J.S.A. 2C:2-6, and against the peace of this State, the government and dignity of the same.

Between grand jury presentations, defendant filed an unsuccessful motion to suppress the evidence seized pursuant to the search warrants. The motion to dismiss the superseding indictment was later also denied. Defendant's motions for judgment of acquittal or a new trial were not successful either.

At trial, the State presented a number of witnesses, including investigators who examined the seized records and discovered the transactions for which defendant was indicted. Specifically, Page testified regarding defendant's transfer of funds, which the State alleged as designed to make it appear that he repaid a $200,000 debt he owed to the school. The process included the issuance of two cashier's checks out of the school's accounts totaling $230,000 in March 2015. Of that sum, a $200,000 cashier's check was made payable to GZYD, a non-profit entity in the business of making small short-term loans to citizens in the Lakewood community.

The director of GZYD, Jonathan Rubin, testified that in mid-March 2015, defendant asked him to deposit a check for $200,000 into the GZYD account. Defendant explained to Rubin it was a loan he was concerned would get lost in litigation, and he asked Rubin to draw a check in that amount to TAZ Apparel, a defunct online women's clothing company in which defendant had been a partner with Aaron Gottlieb.

Gottlieb testified that defendant called and asked him to deposit the $200,000 in a TAZ Apparel account and write defendant a check from the account in that amount. Gottlieb did so, without asking questions about thetransaction. Defendant wired the $200,000 into one of the school accounts, thus appearing on paper to pay an existing debt he owed to the school.

Deputy Chief of Detectives William Frederick, of the Division of Criminal Justice Financial and Computer Crimes Bureau, also testified on behalf of the State. He reviewed various account books and records of the school, and the foundation, in furtherance of the investigation. He too testified regarding the transactions that Page, Rubin, and Gottlieb described—and the fact that defendant's $200,000 debt to the school was effectively eliminated by the circular series of transactions that began with a withdrawal of $200,000 from a school account. We discuss the motions, jury charges, and sentence below.

Now on appeal, defendant raises the following points:

POINT I

THE CONVICTIONS SHOULD BE VACATED BECAUSE THE JURY INSTRUCTIONS FOR COUNT 3 WERE CLEARLY INCORRECT.

POINT II

THE CONVICTIONS SHOULD BE VACATED BECAUSE THE SUPERSEDING INDICTMENT WAS FACIALLY INCONSISTENT, AND EISEMANN PREPARED AND OFFERED HIS DEFENSE IN RELIANCE ON THE ORIGINAL PROPOSED JURY INSTRUCTIONS.

POINT III

THE CONVICTIONS SHOULD BE VACATED BECAUSE THERE WAS NO PERMANENT DEPRIVATION.

POINT IV

THE CONVICTIONS SHOULD BE VACATED BECAUSE THE INTERPRETATION OF [DOE] REGULATIONS WAS FOR THE TRIAL COURT, NOT FOR THE JURY.

POINT V

THE CONVICTIONS SHOULD BE VACATED BECAUSE THERE WAS NO EVIDENCE THAT EISEMANN UNLAWFULLY EXERCISED CONTROL OVER PRIVATE DOLLARS.

POINT VI

THE CONVICTIONS SHOULD BE VACATED BECAUSE THERE WAS NO EVIDENCE THAT EISEMANN USED THE FOUNDATION TO COMMIT THE CRIME OF FINANCIAL FACILITATION.

POINT VII

THE CONVICTIONS SHOULD BE VACATED BECAUSE PROSECUTORS AND PAGE KNOWINGLY PRESENTED FALSE TESTIMONY TO TWO GRAND JURIES IN VIOLATION OF STATE V. HOGAN.

A. Page Testified Before The First Grand Jury About One School Bank Account Only, EvenThough He Knew The School Had Multiple Bank Accounts, And Also Knew That If There Were Sufficient Private Dollars Across All Accounts, Then There Was "No Crime."

B. Page Again Testified About One School Bank Account Before the Second Grand Jury, And Added To His Testimony That There Were Insufficient Private Dollars In That Account To Pay For The "Criminal" Transactions Even Though Page Admitted At Trial That He Never Knew The Amount Of Public Or Private Dollars Deposited Into That, Or Any, Account.

POINT VIII

THE CONVICTIONS SHOULD BE VACATED BECAUSE EISEMANN'S SUPPRESSION MOTION WAS DENIED IN ERROR, AND THE SIX SEARCH WARRANTS WERE OVERBROAD, GENERAL WARRANTS.

The State raises one point on cross-appeal:

POINT IX

DEFENDANT'S ILLEGAL SENTENCE MUST BE VACATED AND REMANDED FOR RESENTENCING AS IT IS NOT WITHIN THE SENTENCING GUIDELINES AND DEFENDANT FAILED TO MEET HIS HEAVY BURDEN OF OVERCOMING THE PRESUMPTION OF IMPRISONMENT.

1. Mitigating factor two, defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2).

2. Mitigating factor four, substantial grounds tending to excuse defendant's conduct, N.J.S.A. 2C:44-1(b)(4).

3. Mitigating factor six, defendant will compensate the victim of his conduct for the damage or injury sustained, N.J.S.A. 2C:44-1(b)(6).

4. Mitigating factor eight, defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8).

I.

Defendant was acquitted of first-degree corruption of public resources, N.J.S.A. 2C:27-12(a)(1) and 2-6 (count one); second-degree theft by unlawful taking, N.J.S.A. 2C:20-3 and 2-6 (count two); and second-degree misapplication of entrusted property and property of government, ...