United States v. Malka
| Decision Date | 11 May 2022 |
| Docket Number | S3 19-CR-497 (NSR) (05) (09) |
| Parties | UNITED STATES of America, v. Matityau Moshe MALKA and Mordechay Malka, Defendants. |
| Court | U.S. District Court — Southern District of New York |
James Alan Ligtenberg, Samuel S. Adelsberg, Assistant US Attorneys, Jamie Ellen Bagliebter, United States Attorney's Office, New York, NY, for United States of America.
Howard Evan Tanner, White Plains, NY, Joseph A. Vita, Port Chester, NY, for Defendant Matityau Moshe Malka.
Susan C. Wolfe, Riverdale, NY, Diane Margaret Fischer, Law Office of Diane Fischer, Brooklyn, NY, Ezra Spilke, Law Offices of Ezra Spilke, PLLC, Brooklyn, NY, for Defendant Mordechay Malka.
This case involves the kidnapping of two minors, Minor-1 and Minor-2 (collectively, "the Minors"), from their Mother in New York by members of Lev Tahor, an insular religious community currently based in Guatemala, of which the Mother and the Minors were previously members. Pro se Defendants Matityau Moshe Malka and Mordechay Malka (collectively, the "Malkas") are members of Lev Tahor whom the Government charged in a six-count superseding indictment for their involvement in the kidnapping of the Minors.1 ("S3," ECF No. 358.) A jury trial for the Malkas is scheduled on May 18, 2022.
Presently pending before the Court are the parties’ motions in limine in anticipation of such jury trial: the Government's ("Gov't MIL," ECF No. 478), Mordechay's ("Mordechay MIL," ECF No. 494), and Matityau's ("MM 1st MIL," ECF No. 482; "MM 2nd MIL," ECF No. 506). For the following reasons, the Court GRANTS IN PART, DENIES IN PART the Government's motions, and GRANTS IN PART, DENIES IN PART the Malkas’ motions in limine.
The following background derives from the Government's allegations as charged in the S3 Superseding Indictment and other relevant court filings.
All Defendants in this case are members of Lev Tahor, a Jewish religious community of about 250 members founded in the 1980s by Nachman Helbrans's father. (S3 ¶ 3.) Nachman took over as the community's leader after his father passed away in 2016 or 2017. (Id. ) Regardless of their age, all brides in the Lev Tahor community are required to have sex with their husbands on predetermined intervals and new brides and grooms are instructed by community leaders on when and how to have sex before they are married. (Id. ¶ 7.)
In 2017, Nachman arranged to have Minor-1, his then-twelve-year-old niece, engaged to be religiously "married" to Jacob Rosner, who was eighteen years old at the time. (Id. ¶ 6.) Minor-1 and Jacob were religiously "married" the following year when she was thirteen and he was nineteen. (Id. ) They were never legally married. (Id. ) They immediately began a sexual relationship with the goal of procreation. (Id. )
In early November 2018, the Mother and her six children, including the Minors, left Lev Tahor and relocated to the United States. (Id. ¶ 8.)
On November 14, 2018, the Kings County Family Court in Brooklyn, New York (the "Family Court") granted the Mother temporary sole custody over her six children, including the Minors, and enjoined the children's father, Aaron Teller, a leader in the Lev Tahor community not named as a defendant in this case, from having any communication with the children. (Id. ) The orders of the Family Court are collectively referred to as "the Family Court Order."
After the Mother and her children left Guatemala, the Defendants and others devised a plan to return the Minors, then fourteen and twelve years old, to Lev Tahor. (Id. ¶ 9.) At approximately 3:00 a.m., on December 8, 2018, Helbrans, Mordechay, Jacob, Shmiel Weingarten, and others removed the Minors from a home in Woodridge, New York. (Id. ¶ 10.) They, along with others, took the Minors to a hotel where they were provided with new clothes before they were driven to Scranton International Airport in Pennsylvania. Nachman and the Minors, dressed in secular clothing, and using passports bearing the names of two of Nachman's children proceeded through airport security in Scranton, flew to Washington, D.C., then to Texas, and then took a bus across the border to Mexico. (Id. ¶ 11.) Other Defendants, including Mordechay, Shmiel, and Jacob, took separate routes out of the country to Mexico. (Id. ) Once in Mexico, Nachman and others transported the Minors to several hotels and residences with assistance from Lev Tahor members in the United States, Mexico, and Guatemala. At various times, Nachman and the Minors were met by Mayer Rosner, Jacob, Yoil Weingarten, Matityau, and others. (Id. ¶ 12.)
On December 18, 2018, Mexican law enforcement raided a house in San Miguel Tlaixpan, Mexico, and detained Nachman, Mayer, Jacob, and Matityau, among other individuals. On December 26, 2018, officials from Mexico's immigration authority, Instituto Nacional de Migración ("INM"), informed the FBI that INM had elected to deport Nachman, Mayer, Jacob, and Matityau—all of whom were and are U.S. citizens—from Mexico and deliver them into the custody of the FBI. On December 27, 2018, two INM officials accompanied Nachman, Mayer, Jacob, and Matityau on a commercial flight from Mexico City to New York. The FBI arrested Nachman, Mayer, and Jacob upon their arrival at John F. Kennedy International Airport (Minute Entries dated December 27, 2018), pursuant to a complaint alleging that that they conspired to kidnap two victims. (Dkt No. 18 MJ 10939, ECF No. 1.)
On December 27, 2018, the Minors were recovered at a hotel in Mexico. (S3 ¶ 13.) At the time, the Minors were accompanied by Shmiel and Yoil Weingarten. (Id. ) In December 2018, the entire Lev Tahor community was seeking asylum in Iran. (Id. ¶ 14.)
In March 2019, approximately three months after the Minors were recovered in Mexico, Helbrans, Yakov, Matityau, and others, attempted to remove Minor-1 a second time. (S3 ¶ 15.) On March 26, 2019, a complaint was filed charging Matityau with conspiracy to kidnap and conspiracy to obstruct justice in violation of 18 U.S.C. §§ 1201, 1512, and 2. (Dkt No. 19 MJ 3011, ECF No. 1.) Matityau was arrested the same day. (Minute Entry dated March 26, 2019.)
On July 8, 2019, the Government sought and obtained a four-count Indictment charging (1) all Defendants with conspiracy (i) to commit international parental kidnapping, (ii) to unlawfully use a means of identification, and (iii) to enter by false pretenses the secure area of an airport, in violation of 18 U.S.C. § 371 ; (2) all Defendants (except Mordechay) with two counts of international parental kidnapping (one for each Minor in the December Kidnapping), in violation of 18 U.S.C. § 1204 ; and (3) Nachman, Matityau, and Yakov with another count of international parental kidnapping (for the March 2019 attempted kidnapping of Minor-1), in violation of 18 U.S.C. § 1204. The Government charged Mordechay, Yoil, Shmiel, and Yakov in a separate sealed superseding indictment containing the same counts and allegations, S1 19 Cr. 497 (ECF No. 52), because, at the time, these four Defendants were at-large. None of the indictments charge any of the Defendants with violating 18 U.S.C. § 1201.
On May 29, 2019, Teller, the father of the Minors, filed a petition in the United States District Court for the Eastern District of New York ("the Hague Court"), under the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"),2 seeking the expedited return of his six children to Guatemala, including the Minors. (Teller v. Helbrans, 19 Civ. 3172 (SJB) (E.D.N.Y.) (the "Hague Case") at ECF No. 1.) On October 22, 2019, the Hague Court denied Teller's petition with prejudice, holding that Teller had "engaged in a pattern and practice of misconduct and paid little attention to and disregarded the obligations attendant to a litigant in a federal civil proceeding," because Teller had "repeatedly told [the court] that he [had] no intention of appearing for any trial," and that "[f]rom the start, Teller has resisted discovery, failed to attend any proceeding, and clearly never intended to appear in the United States." (Hague Case, ECF No. 110.)
On December 9, 2019, Teller filed a notice of appeal. (Dkt. No. 19-4063 (2d Cir.) at ECF No. 1.) On February 7, 2020, the Second Circuit dismissed the appeal because Teller failed to file a required form. (Id. at ECF No. 21).
In March 2021, Co-Conspirator-1 ("CC-1"), a member of Lev Tahor, approached the Minors in New York and attempted to remove them again. (S3 ¶ 16.) At the time, CC-1 possessed three bus tickets from New York to Georgia, drop phones, children's clothing, and birth certificates for two children of ages similar to the Minors. By late March 2021, CC-1 had returned to Guatemala. (Id. )
On November 19, 2019, the Court set the initial schedule for pre-trial motions at a status conference on November 19, 2019. In February 2020, the Malkas requested a three-week extension of the briefing schedule (ECF Nos. 65 and 66), which the Court granted (ECF Nos. 67 and 68). On March 18, 2020, Jacob sought a one-month extension of the briefing schedule that the Malkas and the other defendants either joined or did not object to (ECF No. 74), which the Court granted (ECF No. 75).
On March 20, 2020, Matityau requested a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), for the Court to consider his application for pro se representation (ECF No. 81), which the Court granted and scheduled such hearing on April 28, 2020. (ECF No. 78.) Mordechay requested the same on April 2, 2020 (ECF No. 80), and the Court granted and scheduled such hearing for June 3, 2020. (ECF No. 82.)
By order dated April 6, 2020, in light of the COVID-19 pandemic, the Court, ...
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