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United States v. Epstein

United States District Court, D. New Jersey

March 19, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
MENDEL EPSTEIN, JAY GOLDSTEIN, DAVID ARYEH EPSTEIN, and BINYAMIN STIMLER, Defendants

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For MENDEL EPSTEIN, Defendant: AVRAHAM C. MOSKOWITZ, SUSAN R NECHELES, LEAD ATTORNEYS, COUNSEL NOT ADMITTED TO USDC-NJ BAR, NEW YORK, NY; JUDA J. EPSTEIN, LEAD ATTORNEY, BRIDGEPORT, CT; NOAH EPHRAIM SHELANSKI, HAFETZ NECHELES & ROCCO LLP, NEW YORK, NY.

For MARTIN WOLMARK, also known as MORDECHAI, Defendant: BENJAMIN BRAFMAN, LEAD ATTORNEY, NEW YORK, NY; MARC AGNIFILO, LEAD ATTORNEY, BRAFMAN & ASSOCIATES, NEW YORK, NY.

For JAY GOLDSTEIN, also known as, YAAKOV, Defendant: AIDAN P. O'CONNOR, LEAD ATTORNEY, PASHMAN STEIN, HACKENSACK, NJ.

For DAVID ARYEH EPSTEIN, also known as, ARI, Defendant: HARLAN PROTASS, LEAD ATTORNEY, CLAYMAN & ROSENBERG LLP, NEW YORK, NY; HENRY EDWARD MAZUREK, LEAD ATTORNEY, WEINSTEIN & MAZUREK PLLC, NEW YORK, NY.

For BINYAMIN STIMLER, Defendant: NATHAN LEWIN, LEAD ATTORNEY, COUNSEL NOT ADMITTED TO USDC-NJ BAR, WASHINGTON, DC.

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OPINION

Freda L. Wolfson, United States District Judge.

Defendants Rabbi Mendel Epstein, Rabbi Jay Goldstein, David Epstein and Rabbi Binyamin Stimler (collectively, " Defendants" ), have been charged with multiple kidnapping-related crimes allegedly involving coercive gets obtained from Jewish husbands in Orthodox Jewish divorce proceedings. Before and during trial, the Court has decided numerous evidentiary issues raised by Defendants. While those rulings have been placed on the record, the Court expands upon, in this written Opinion, issues concerning Defendants' religious-based defenses and arguments. Specifically, Defendants seek the dismissal of the Superseding Indictment on the basis that the Religious Freedom Restoration Act (" RFRA" ) forbids their prosecution. In that connection, on similar grounds, Binyamin Stimler (" Stimler" ) had moved to sever his trial. Alternatively, Defendants seek to introduce evidence of their Orthodox religious beliefs to negate their criminal intent and mount a consent defense to kidnapping. The Government has opposed these motions. For the reasons set forth on the record, and for the reasons set forth in this Opinion, Defendants' motions are DENIED.

BACKGROUND

On September 11, 2014, a grand jury in Trenton, New Jersey, returned a five-count Superseding Indictment against Binyamin Stimler, Mendel Epstein, Jay Goldstein (" Goldstein" ), and David Aryeh Epstein.[1] Defendants are all Orthodox

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Jewish men and their prosecutions arise out of allegations that Defendants engaged in criminal means to facilitate Orthodox Jewish divorces.

According to the Superseding Indictment, to effectuate an Orthodox Jewish divorce, a husband must provide his wife with a document known as a " get." See Super. Ind. at ¶ 1(i). A get serves as documentary proof of the dissolution of a marriage under Jewish law, and a divorce cannot be effected until a get is given by the husband. The get is a dated and witnessed document wherein the husband expresses his intention to divorce his wife and sever all ties with her. The get is written by an expert scribe, known as a " sofer," who acts as the husband's agent. After the get is written by the sofer, the husband hands it to his wife in the presence of two witnesses, who also sign the get. A wife may also have an agent accept on her behalf. Once the marriage is dissolved, a rabbinical court, known as a " beth din," will give both parties a certificate confirming their new marital status. Id. at ¶ 1(i).

If a husband refuses to give his wife a get, the wife may sue for divorce in a beth din, which may order the husband to issue the get. Id. If the husband does not comply, he may be subjected to various penalties to pressure him into consenting to the divorce. Id. A woman whose husband will not give her a get is known as an " agunah" (" agunot" in plural), a chained woman who cannot remarry. Id.

Count I of the Superseding Indictment charges all Defendants with conspiracy to commit kidnapping. The object of this conspiracy was to obtain money from the agunot and to threaten and coerce Jewish husbands to give their wives gets, i.e., kidnappings. Id. at ¶ 3. The remaining four Counts charge the various Defendants with three kidnappings and one attempted kidnapping; the conduct alleged in these substantive counts are also alleged in Count I as part of the overt acts in the conspiracy charge.[2]

Several of the defendants' arrests stemmed from a " sting" operation[3] in which two undercover FBI agents posed as an agunah and her brother. Id. at ¶ 7(d). In summary, the Indictment alleges that Mendel Epstein charged the undercover agents approximately $10,000 for Mendel Epstein to arrange for the kidnapping and beating of the fictitious husband in order to coerce him to give a get. Id. at ¶ 7(i). The undercover agents wired Mendel Epstein an additional $20,000 on October 2, 2013, and the agents were instructed to pay the final $30,000 at the time of the fictitious kidnapping. Id. at ¶ 7(u). Ultimately, Defendants Stimler and Goldstein were arrested at the scene of the purported kidnapping.

The Superseding Indictment further asserts three actual kidnappings, wherein the various defendants are accused of acting with others to kidnap Jewish men and coerce them to agree to give their wives gets. See Id. at ¶ 7(a) to ¶ 7(c). As part of these kidnappings, Defendants are accused of tying up and beating the victim-husbands.[4] Id.

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DISCUSSION

I. RFRA

Stimler, joined by his co-defendants, moves to dismiss the Superseding Indictment under Fed. R. Crim. P. 12(b) on the basis that Defendants' criminal prosecution would violate RFRA. Indeed, the Act requires that the Government " shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless " the application of the burden to the person -- (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000bb-1(a) to 1(b); Holt v. Hobbs, 135 S.Ct. 853, 860, 190 L.Ed.2d 747 (2015). Furthermore, " [a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." Id. at § 2000bb-1(c).

Invoking RFRA, Defendants insist that their prosecution substantially burdens their Orthodox religious beliefs, and that even if the Government has a compelling interest, the prosecution of Defendants is not the least restrictive means of furthering that interest. Stimler argues, in the alternative, that his prosecution, separate and apart from the other three defendants, violates RFRA.[5] Simply put, it is Defendants' position that an exception to the kidnapping statutes exists because the alleged kidnappings were done in furtherance of sincerely held religious beliefs. That position is not sustainable.

For one, I conclude that the Government's decision to prosecute Defendants does not constitute a substantial burden on Defendants' religious exercise. Further, even if a substantial burden does exist, I find that the Government has a compelling interest in preventing crimes of violence, and moreover, the arrest and prosecution of individuals who violate such criminal laws is the least restrictive means of enforcing that interest.

1. Substantial Burden on Religion

Stimler argues that prosecution of the defendants in this case substantially burdens the exercise of their religion. Stimler Br. at 7. In support of that position, Stimler offers the expert declaration of Rabbi Yitzchok Breitowitz, who states that it is a " mitzvah" -- that is, a religious commandment -- to serve as a witness to a get, and to assist an agunah in obtaining a get. Stimler Br. at 9-10, Breitowitz Decl. at ¶ ¶ 13, 14, 16. On January 28, 2015, this Court ruled on the record that Stimler had not shown a substantial burden on his religious practice, because there was no evidence that his religion required the use of force. Following this ruling, Stimler submitted a Supplementary Declaration of Rabbi Breitowitz, which states that Jewish law authorizes " certain forms of force," and that freeing an agunah " is a 'mitzvah' even if force is necessary to secure the

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husband's expression of consent." Breitowitz Supp. Decl. at ¶ 6. The Government, responding to the Supplemental Declaration, asserts that even if Jewish law permits the use of violence to obtain a get,[6] it does not condone the use of violence in exchange for money.[7] Gov't Renewed Br. at 7-8.

" Whether a burden is 'substantial' under RFRA is a question of law, not a question of fact." Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422, 442, 2015 WL 543067, at *13 (3d Cir. 2015). In a case like this, a substantial burden exists where " 'the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.'" Id. (quoting Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)). Conversely, there is no substantial burden " if the government action does not coerce the individuals to violate their religious beliefs or deny them 'the rights, benefits, and privileges enjoyed by other citizens.'" Id. (quoting Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 449, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)). While the definition is expansive, the test does not mean that " any incidental effect of a government program which may have some tendency to coerce individuals into acting contrary to their religious beliefs satisfies the substantial burden standard." Klem, 497 F.3d at 279. Importantly, not every burden is substantial; " RFRA's reference to 'substantial' burdens expressly calls for a qualitative assessment of the burden that the accommodation imposes on the . . . exercise of religion." Geneva Coll., 778 F.3d at 442, Id. at *13.

One way to qualitatively assess the burden that a government practice places on religious exercise is to consider whether an adherent has acceptable alternative means to practice his religion. For example, in Klem,[8] an inmate argued that his religion required that he read four books a day, and that the Pennsylvania Department of Corrections' (" DOC" ) policy which only permitted the inmate to keep ten books in his cell at one time constituted a substantial burden on his religious exercise. Id. at 275. While the Third Circuit agreed with the inmate's position, Id. at 282, the Circuit, nonetheless, queried whether alternatives presented by the DOC -- that the inmate could read books in the library or trade books - sufficiently allowed the inmate to exercise his religious requirements. Id. The court held that these alternatives were insufficient: the inmate could only go to the library once a week and could only take out four books each time, and the record did not show that the inmate was permitted to trade books within the prison. Id. Thus, absent any meaningful alternatives, the prison practice was a substantial burden on the inmate's religious exercise. See Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (no substantial burden when religion did not require particular means of expressing religious view and alternative means of religious expression were available); Weir v. Nix, 114 F.3d 817 (8th Cir. 1997) (considering alternatives in determining whether burden was " substantial" ); Henderson v. Kennedy,

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253 F.3d 12, 17, 346 U.S.App.D.C. 308 (D.C. Cir. 2001)(finding that there is no " substantial burden" where alternatives were available); see, e.g., Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813-14 (8th Cir. 2008) (finding that BOP's refusal to provide halal meat meals did not constitute a substantial burden on inmate's religion where inmate had not " exhausted alternative means of accommodating his religious dietary needs" ); Watkins v. Shabazz, 180 F.App'x 773, 775 (9th Cir. 2006)(holding that there was no substantial burden because defendants gave the inmate two alternatives--eating the nutritionally adequate meat-substitute meals or finding an outside organization to provide halal meat).[9]

Here, Defendants are accused of conspiracy to commit kidnapping and kidnapping, and the underlying factual allegations include acts of violence. These acts were done, according to Defendants, in pursuit of a valid religious objective: obtaining a get for an agunah. According to Rabbi Breitowitz, an individual " would be performing a 'mitzvah' if he joined an effort to secure consent to the writing of a get from a recalcitrant husband even if he anticipated that . . . physical coercion would be needed to overcome the husband's persistence in refusing to authorize a get." Supp. Breitowitz Decl. at ¶ 10.

There is no dispute that facilitating an agunah to obtain a get is part of Defendants' religious exercise. And, while there is considerable debate in the Jewish community regarding the use of force in obtaining a get, I nonetheless accept for the purposes of this Opinion that Jewish law permits the use of violence or force to obtain a get from a recalcitrant husband. However, there is also no dispute that there are alternative means of coercion to perform this mitzvah. For example, Rabbi Breitowitz notes that in the state of Israel, non-violent means are used by the government to obtain gets, namely jailing the husband or prohibiting their exit from the country. Breitowitz Decl. at ¶ 16. Even in this country, as noted by Rabbi Breitowitz, the State of New York has enacted laws to penalize husbands who impose " a barrier to remarriage." Supp. Breitowitz Decl. at ¶ 3, N.Y. Dom. Rel. Law. § § 253, 236(B). While there may not be secular laws in other states in this regard, according to Rabbi Breitowitz, the names of husbands who refuse to authorize a get can be published in The Jewish Press " so that the reading public will hold them in disrepute." Breitowitz Supp. Decl. at ¶ 3. This is but only one example of a means used to shun and embarrass a recalcitrant husband. In sum, these examples all indicate that while freeing an agunah is a mitzvah, Jewish law provides alternatives to kidnapping or violence to do so. These alternative and meaningful means of obtaining a get - e.g., public shaming or utilizing the secular law -- do not violate the criminal laws of the United States, yet still permit Orthodox Jews to participate in the mitzvah of freeing agunot.

On the face of the Indictment, it is unclear whether all non-violent methods were exhausted before the alleged kidnappings took place here. That fact, however, does not change this Court's analysis. Indeed, if Defendants had acceptable religious alternatives -- instead of resorting to violating the criminal laws -- I find that the ...


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