United States v. Braunstein

• Citation: 474 F. Supp. 1
• Decision Date: 03 July 1979
• Docket Number: Crim. No. 78-111.
• Parties: UNITED STATES of America v. Israel BRAUNSTEIN, Moses Braunstein, Miriam Shmidman, Leon Hellman and Liberty House, Defendants.
• Court: U.S. District Court — District of New Jersey

474 F. Supp. 1

UNITED STATES of America v. Israel BRAUNSTEIN, Moses Braunstein, Miriam Shmidman, Leon Hellman and Liberty House, Defendants.

Crim. No. 78-111.

United States District Court, D. New Jersey.

Memorandum Order August 24, 1978.

On Waiver of Trial by Jury May 4, 1979.

On Trial Matters May 17, 1979.

Supplemental Memorandum July 3, 1979.

COPYRIGHT MATERIAL OMITTED

Robert J. Del Tufo, U. S. Atty. by Richard L. Friedman, Asst. U. S. Atty., Newark, N. J., for the United States.

Maurice C. Brigadier by Seymour Margulies, Jersey City, N. J., for defendant Israel Braunstein.

Zazzali, Zazzali & Whipple by George L. Schneider, Newark, N. J., for defendant Moses Braunstein.

Robinson, Wayne & Greenberg by Stephen Greenberg, Newark, N. J., for defendant Miriam Shmidman.

Patrick W. McGinley by Suzanne Antippas, New York City, for defendant Leon Hellman.

Samuel Parnes, Jersey City, N. J., for defendant Liberty House.

MEMORANDUM ORDER

BIUNNO, District Judge.

Outline

The indictment, in 19 counts, charges four individuals and one corporation with various federal offenses. These are summarized as follows:

Count 1: Charges a conspiracy to defraud the United States and the Internal Revenue Service, as to all defendants, 18 U.S.C. § 371;

Count 2: Charges all defendants except Hellman with a violation of 18 U.S.C. § 1001, and aiding and abetting under 18 U.S.C. § 2, in respect to the 1973 report of costs for 1972;

Counts 3 & 4: Make the same charges as Count 2 except that defendant Hellman is included, in respect to the cost reports for 1973 and 1974;

Count 5: Makes the same charges as Counts 2, 3 and 4 in regard to the cost report for 1975, including defendant Hellman but not charging defendant Shmidman;

Counts 6, 7, 8 and 9 charge defendant Israel Braunstein with subscribing, etc., false tax returns for Liberty House for each of the years 1972 through 1975; 26 U.S.C. § 7206(1);

Counts 10 through 13 charge defendant Moses Braunstein with aiding and assisting, etc., in the preparation of false tax returns for Liberty House for the years 1972 through 1975, 26 U.S.C. § 7206(2);

Counts 14 through 16 make the same charges against defendant Shmidman for the years 1972 through 1974, 26 U.S.C. § 7206(2);

Counts 17 through 19 make the same charges against defendant Hellman for the years 1973 through 1975, 26 U.S.C. § 7206(2).

Basically, the charges focus on an alleged practice of charging to and having paid by Liberty House Nursing Home of Jersey City various items of capital or operating expense not properly chargeable to it. The theme is that this practice, charged to have been in execution of the conspiracy, resulted in false cost statements being made in a matter within the jurisdiction of HEW, an agency of the United States, in the administration of the Medicaid program, as well as in false tax returns for the nursing home.

Israel Braunstein is alleged to have been a 25% owner of Liberty House, as well as its President and Administrator.

Moses Braunstein is alleged to have been a 50% owner of Liberty House, as well as its Secretary and Comptroller.

Miriam Shmidman is alleged to have been a 25% owner of Liberty House, as well as its Treasurer and employee.

Leon Hellman is alleged to have been a purchasing agent, from about February, 1973 to about December, 1975, for Liberty House as well as for other nursing homes owned by Moses Braunstein.

All defendants have filed extensive motions on a wide variety of matters. Most of these come within the scope of the standard discovery order entered in this court regularly at arraignment since the taking effect of the Speedy Trial Act, in the Fall of 1975. Others fall outside that order. A special date and time was set, and argument on all the motions was heard July 24, 1978, decision being reserved. This ruling is a disposition on all the motions.

Since one or another defendant joined in motions made by others, the dispositions are on an item-by-item basis without regard to which defendant made the motion, and which ones joined in it.

Motion to sever the trial of Moses and Israel Braunstein.

This motion is based on the proposition that if Moses Braunstein exercises his right to take the stand in his own defense, or as a witness for Israel Braunstein, he would be subject to cross-examination which may call on him to testify against Israel Braunstein, contrary to his religious principles and contrary to Israeli law said to embody those principles. In sum, the contention is that a joint trial would confront him with an irreconciliable conflict between his secular legal rights and his religious beliefs.

The only material submitted is a supposed translation of sections 3 and 4 of what is said to be the Israeli Evidence Ordinance (secular), and two pages from what appears to be an unidentified edition, in English, of Talmud (religious).

As is well known, Jewish religious law is founded on Torah, the written law as given by the Lord to Moses and embodied in the first five books of the Old Testament. This written law, which may be likened to a written constitution and statutes, is supplemented by "oral law", or "Torah by Mouth". This oral law consists of both Mishnah, a systematic collection of religious-legal decisions developing the laws of Torah, and Gemara, comprising supplemental material by way of Rabbinical interpretation by various scholars. These three major components, along with Tosephta, Mishradin and Targumin, represent the body of orthodox Rabbinical literature connecting Torah with medieval and modern Judaism.

Talmud itself developed through two streams: one resulted in the Palestinian recension of Mishnah and Gemara; the other resulted in the Babylonian recension.

For an extensive general review of these and other materials, see Encyclopaedia Brittanica, 11th Edition, "Talmud".

In any event, it is of interest to examine the written law, Torah. A brief inspection discloses a number of written laws pertinent to the question presented. Thus, the law is written:

. . . "Ye shall not . . . deal falsely, neither lie one to another," Leviticus, xix., 11.

. . . "Thou shalt not defraud thy neighbor", Leviticus, xix., 13.

. . . "If a soul sin . . . and lie unto his neighbor in that which was delivered to him to keep . . . or hath deceived his neighbor . . . in any of all these that a man doeth, sinning therein:

"Then it shall be, because he hath sinned, and is guilty, that he shall restore . . . the thing which he hath deceitfully gotten . . . and he shall even restore it in the principal, and shall add the fifth part more thereto, and give it unto him to whom it appertaineth." Leviticus, vi., 2-4.

. . . "And it shall be when he shall be guilty in one of these things, that he shall confess that he hath sinned in that thing." Leviticus, v., 5.

. . . "Therefore shall ye observe all my statutes, and all my judgments, and do them." Leviticus, xix., 37.

. . . "When a man or woman shall commit any sin that men commit, to do a trespass against the Lord, and that person be guilty, then they shall confess their sin which they have done and he shall recompense his trespass with the principal thereof, and unto it the fifth part thereof, and give it unto him against whom he hath trespassed." Numbers, v., 6-7.

These excerpts from Torah, the written law, are mentioned to illustrate the inconsistency of the motion to sever. If Israel be not guilty, to the knowledge of Moses, then Moses cannot testify "against" Israel because Torah commands Moses not to lie. If Israel or Moses or both be guilty, then Torah obliges each to confess, in which event neither would be called upon to testify "against" the other; and to the extent that either or both has "deceived his neighbor" (HEW and IRS), they are not only obliged to confess, but also to "restore the thing . . . deceitfully gotten", and 20% in addition. This they must do because they are commanded by the written law to "observe all my statutes . . . and do them."

Thus, one difficulty with the motion is that the claimed dilemma arises only because Moses (for example) wants to rely in one respect on secular law, and in another respect on religious law, selecting from each that which seems most advantageous. This is an artificial, self-inflicted dilemma. If he has any right to choose between secular law and religious law (for the sake of argument), the choice is only between all of one or all of the other, but not a choice between some favorable parts of one and another favorable part of the other; especially where claiming a right under secular law would violate religious law. The reason for this is that to do so establishes that he is not bound, or does not feel himself bound, by the principles of the orthodox religion. Religious belief is the underpinning of the motion, and so a claim of right to adhere to it in one respect but not another indicates that the underpinning itself is a sham and a delusion.

No doubt the argument would run that what is said in Torah and Talmud by way of duty, of commandment, and the like, has only religious, not secular consequences. But to make that argument is to concede that the question is governed, in a secular court, by secular law and not religious principles. There is no doubt that the written law of Amendment I declares that the Congress shall make no law prohibiting the free exercise of religion, but this does not go so far as to require that the secular law governing the trial of criminal cases must give way to the religious beliefs of every accused or of every witness. Compliance with secular law in a secular court does not infringe the individual's free exercise of his religion. It does not oblige him to alter his beliefs, even though it may compel him to do an act contrary to those religious beliefs. To the extent it does, the act is not of his own will but is one compelled by law, and he remains free to believe that it is contrary to the principles of his religion.

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