United States v. Helbrans

• Decision Date: 04 November 2021
• Docket Number: S2 19-CR-497 (NSR) (01) (02)
• Citation: 570 F.Supp.3d 83
• Parties: UNITED STATES of America v. Nachman HELBRANS and Mayer Rosner, Defendants.
• Court: U.S. District Court — Southern District of New York

570 F.Supp.3d 83

UNITED STATES of America

v.Nachman HELBRANS and Mayer Rosner, Defendants.

S2 19-CR-497 (NSR) (01) (02)

United States District Court, S.D. New York.

Signed November 4, 2021

James Alan Ligtenberg, Jamie Ellen Bagliebter, Samuel S. Adelsberg, Assistant US Attorneys, United States Attorney's Office, New York, NY, for United States of America.

Bruce D. Koffsky, Koffsky & Felsen, LLC, Stamford, CT, Peter Joel Schaffer, Peter J. Schaffer, Attorney at Law, Bronx, NY, for Defendant Nachman Helbrans.

Jason Immanuel Ser, Martin Samuel Cohen, Public Defenders, Federal Defenders of New York Inc., New York, NY, Susanne Brody, Public Defender, Federal Defenders of New York Inc., White Plains, NY, for Defendant Mayer Rosner.

OPINION & ORDER

Nelson S. Román, United States District Judge:

The Government called Jane Doe¹ to testify at the trial against Nachman Helbrans and Mayer Rosner, which began on October 18, 2021. The Government alleges, inter alia , that the Defendants conspired to transport Jane Doe with an intent of reuniting her with her adult husband, Jacob Rosner, so that Jane and Jacob could resume their illicit sexual relationship. It is alleged that Jane Doe was forced to marry Jacob—Defendant Mayer Rosner's son—when she was thirteen and he was nineteen. From February 2021 to October 18, 2021, Nachman Helbrans and Mayer Rosner represented themselves pro se. Jacob Rosner, a Co-Defendant who is scheduled to go to trial in May 2022, has represented himself pro se since June 2021 and continues to do so. In the course of their self-representation, Nachman Helbrans and Mayer Rosner attempted to invoke spousal privilege on behalf of Jane Doe and Jacob. (See, e.g. , email from Jason Ser to the Court on behalf of pro se Defendant Mayer Rosner dated October 12, 2021 (averring that Jacob and Jane's marriage was "legitimate" and suggesting that a marital privilege applies); Oct. 13, 2021 Final Pre-Trial Conf. Tr. at 46-48 (Helbrans discussing his concern that the Government never informed Jane of her right to privacy of marriage)). The Court also received a letter from Jacob Rosner, through his standby counsel, seeking to invoke the right of privacy of marriage to preclude certain testimony by Jane Doe.² (ECF No. 423.) For the reasons stated by the Court orally before Jane Doe's testimony on November 2, 2021, and for the reasons that follow, the spousal privilege is inapplicable to Jane Doe's testimony.

BACKGROUND

Witness lists in this matter were due on October 12, 2021. (ECF No. 310.)

On October 8, 2021, Jane Doe filed an application under 18 U.S.C. § 3509. The Court ordered the parties to respond on or before October 12, 2021. The Government joined Jane Doe's application. Pro se Defendant Mayer Rosner sent an untimely response in which he averred that Jacob and Jane's marriage was "legitimate" and suggested that a marital privilege applies.

Also on October 8, 2021, the Government filed affidavits from experts on Mexican and Guatemalan law. (ECF No. 376.)

Defendants did not timely file a witness list. Instead, at the final pretrial conference on October 13, 2021, they stated their intention to call over 150 witnesses. (Tr. at 87-89.) The Court directed Defendants to file a witness list by October 14, 2021 setting forth the names of the individuals Defendants intend to call to testify and to state with particularity whether each individual is available and the relevance of the testimony. Defendants submitted a list of over 200 names, which appeared to include experts on Mexican and Guatemalan laws concerning marriage and sexual relations involving minors. Because questions of foreign law are questions of law to be decided by the Court, the Court issued an order stating that the Defendants could, as the Government did, provide written affidavits from their foreign law experts on or before October 19, 2021. (ECF No. 398.) On October 18, 2021, Defendants Nachman Helbrans and Mayer Rosner's pro se status was revoked.

The Court explained,

[B]ased on defendants' request last week to invoke spousal privilege regarding Jane Doe's testimony, ... if the Court concludes as a matter of law that there was not a legally recognizable marriage between Jane Doe and Jacob Rosner, neither defendants Jacob Rosner nor Jane Doe may invoke a spousal privilege related to the communications between Jane Doe and Jacob Rosner.

Because these questions about marital and sexual activity laws in Mexico and Guatemala are questions for the Court to decide, the Court is inclined to resolve them both on written affidavits and legal experts rather than live testimony. If the defendants want the Court to consider the opinions of its experts on Mexican and Guatemalan law, defendants -- sit down -- defendants must provide the Court and the government with affidavits of their experts by no later than 5 p.m. on Tuesday, October 19, 2021. That is tomorrow.

There was an order issued to that effect. Again, if I conclude that the alleged marriage between Jane Doe and Jacob Rosner was not legally recognizable, defendants may not argue at trial that they're entitled to a marriage defense or attempt to invoke spousal privilege. Any such arguments would only serve to confuse the jury.

(Tr. at 33-34.) The Court extended the deadline for Defendants to file expert affidavits on foreign law to October 23, 2021. (Tr. at 90-91.) Defendants did not submit any expert affidavits regarding Mexican or Guatemalan law.

On October 29, 2021, Jane's mother, Sara Helbrans testified out of the presence of the jury that members of Lev Tahor had reached out to her and Jane in the past week, including Jacob Rosner, who wanted Jane to invoke spousal privilege. (Tr. at 945-48, 950-51). At sidebar with the parties, the Court stated

My understanding of the law is that spousal privilege only applies if you have a legal marriage, and it is clear, at least from what I've heard so far and from the allegations, that we don't have a legal marriage. The marriage, throughout this proceeding based on all the pleadings and all the motions that have been made, has been referred to as a celestial marriage, all right. A celestial marriage is not a legal marriage.

And also, there are three pertinent laws that have been at least discussed in this case: That's the law of Guatemala with respect to marriages, the law of Mexico with respect to marriages, New York law with respect to marriages. And it's my understanding that the facts of this case and the facts with respect to the testimony that's been proffered, that the marriage of Jane Doe to Jacob Rosner as a matter of law is not a legally recognized marriage. So while there's been discussions of a marital privilege, all right, the marital privilege only comes into play provided that there's a legally recognized marriage.

....

The marital privileges apply provided that there's a marriage, a legally recognized marriage. You can't have the privilege if there's no marriage or legally recognized union of sorts, right? Because I know that states vary with respect to what -- you know, what constitutes a marriage. So in New York State, if -- the marriage is recognized only if it's between an individual of a certain age, right? In this case you have someone who was 12 or 13 years old at the time of the marriage, marrying an individual who is 19. My understanding of New York State law is that that marriage is not recognized, not a legal marriage. And there are, I think, a few exceptions with respect to minors and their ability to marry, provided that they seek consent of a family court, I believe. There's an exception with respect to a minor. Or a 17-year-old. All right. The marriage that we're talking about in this case has nothing to do with a 17-year-old. I think she was 12 or 13 ....

Okay. 13. Still not 17. Still not an adult. All right. So you can't have a marital privilege if it's not a marriage as defined by law.

(Tr. at 965-66.) On November 2, 2021, hours before Jane Doe was scheduled to testify, the Court received a letter from pro se Defendant Jacob Rosner stating in relevant part:

I, Jacob Rosner, invoke my constitutional right of privacy of marriage and I do not agree that the Government, or any other lawyer, should elicit any testimony from my wife regarding our privacy, communication, or acts and as I know that nobody, including the Government, Jane Doe's lawyers, and her own mother, did not inform Jane Doe that she has a right to invoke this same right not to testify regarding her private communication or acts with her husband.

(ECF No. 423.) The note also states that Jacob Rosner "wrote a letter to the court where [he] laid out and explained exactly how [his] marriage with [Jane Doe] is a legitimate marriage, which is recognized by New York Law, Mexican Law, and Guatemalan Law" but was unable to translate the letter into English or provide it to the Court. Jacob Rosner's letter does not provide any explanation of how his marriage to Jane Doe is recognized by New York, Mexican, or Guatemalan laws.

Prior to Jane's testimony, the Court stated that it had received Jacob's letter and that the spousal privilege was inapplicable here.

DISCUSSION

I. Marital Privilege

Federal Rule of Evidence 501 provides:

The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.

Fed. R. Evid. 501. Accordingly, where a party asserts a marital privilege, courts look to federal common law to determine the scope and applicability of the privilege. United States v. Pugh , 162 F. Supp. 3d 97, 101 (E.D.N.Y. 2016), aff'd , 937 F.3d 108 (2d Cir. 2019), amended and superseded , 945 F.3d 9 (2d Cir. 2019), and aff'd , 945 F.3d 9 (2d Cir. 2019).

Federal common law recognizes two types of marital privilege. The first is referred to as the "adverse spousal testimony" privilege, which permits an...