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Bulmash v. United States

United States District Court, D. New Jersey

May 20, 2019

SIMCHA BULMASH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          FREDA L. WOLFSON U.S. CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Simcha Bulmash (“Bulmash” or “Petitioner”) is a federal prisoner proceeding, through counsel, with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) The Government has opposed the motion. (ECF No. 3.) Petitioner filed a reply. (ECF No. 4.) For the following reasons, Petitioner's § 2255 motion is denied with prejudice and a certificate of appealability will not issue.

         II. BACKGROUND

         A. The Underlying Criminal Proceeding

         On October 10, 2013, Petitioner was arrested, along with seven others, pursuant to a superseding criminal complaint (the “Criminal Complaint”), which charged him with one count of conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c). United States v. Bulmash, Crim. No. 14-145, ECF Nos. 4, 5 (D.N.J.). Petitioner's arrest was effectuated at a warehouse in Edison, New Jersey, during the execution of a sting operation by the Government (the “2013 Sting Operation”). Crim. No. 14-145, ECF No. 4, at 2-3. The 2013 Sting Operation related to the Government's investigation into allegations that Petitioner and the other defendants named in the Criminal Complaint, all of whom are Orthodox Jewish men, engaged in criminal means to facilitate Orthodox Jewish divorces.

         According to the Criminal Complaint, to effectuate an Orthodox Jewish divorce, a husband must provide his wife with a document known as a “get.” Crim. No. 14-145, ECF No. 4, at 4. A get serves as documentary proof of the dissolution of a marriage under Jewish law, and a divorce is not official until a get is given to the wife by the husband. Id. Codefendants in this matter, Mendel Epstein, Martin Wolmark, and Jay Goldstein, who were Orthodox Jewish rabbis, were accused of charging agunah, women whose husbands would not provide gets, large sums of money to obtain gets from their husbands by means of violence and threats of violence. Id. Petitioner was described in the Superseding Complaint as a “tough guy” who would “participate in the actual kidnapping and assault of the recalcitrant husbands to coerce them into giving the get.” Id. at 5.

         On March 25, 2014, Petitioner agreed to waive indictment and pleaded guilty, pursuant to a plea agreement with the Government, to a one-count information charging him with having traveled in interstate commerce to commit extortion, a crime of violence, in violation of 18 U.S.C. § 1952(a)(2). Crim. No. 14-145, ECF No. 121. As part of the plea agreement, both the Government and Petitioner agreed to “waive certain rights to file an appeal, collateral attack, writ, or motion after sentencing, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255.” (Id. at 4.)

         While the charge to which Petitioner pleaded guilty related to his involvement in the 2013 Sting Operation, the Government's agreement to not initiate any further proceedings against Petitioner required that a 2011 forced get, in which he also participated, be considered as relevant conduct for the purpose of sentencing. (ECF No. 1-3, at 2.)

         The 2011 forced get occurred on August 22, 2011, when six men, including Petitioner, entered the apartment of Usher Chaimowitz and his roommate, Menachem Teitelbaum, to purportedly obtain a get from Chaimowitz. The facts of the 2011 forced get were adduced at trial of certain codefendants in this matter, United States v. Epstein, Crim. No. 14-287 (D.N.J.), [1]through testimony from Teitelbaum. (See ECF Nos. 1-8, 3-1, 3-2, 3-3.) Teitelbaum testified that on August 22, 2011, he awoke to six men in the apartment he shared with Chaimowitz “with a punch to [his] face and [his] teeth being pulled, with [his] arms and legs bound.” (ECF No. 1-8, at 20.) Chaimowitz's arms and legs were also bound. (Id. at 21.) At some point, Teitelbaum testified that he began to fight the intruders and they pushed his head into a wall and again bound his arms and legs. (Id. at 22-24.) At the same time, Teitelbaum testified that the other intruders were “beating up” Chaimowitz and “calling out to him all the time, give a get, give a divorce, to your wife.” (Id. at 25.) Teitelbaum was eventually moved to the kitchen and the intruders remained with Chaimowitz for about an hour before leaving the apartment. (Id. at 30-33.) After the intruders left the apartment, Teitelbaum testified that he had Chaimowitz take a photo on his cell phone of Teitelbaum while his arms and legs were still bound. (Id. at 34.) Teitelbaum then took photos of Chaimowitz before calling the Shomrim, the Jewish community police, and the Hatzolah, the volunteer Jewish first aid department. (Id. at 36.)[2] Both Teitelbaum and Chaimowitz were taken to the hospital. (Id. at 37.) Teitelbaum claimed that four of his teeth were broken result of the incident. (ECF No. 1-8, at 63.)

         Sentencing of the codefendants named in the Criminal Complaint-twelve in total-began in November 2015. During first sentencing proceeding of codefendant Moshe Goldstein, the Court made certain general comments regarding the nature of the crime applicable to all defendants. (ECF No. 1-9, at 24-25.) The Court also set forth factual findings regarding the 2011 forced get- specifically that it “involved not only threats but assaults as well. I heard the testimony of one of the victims, the roommate, Mr. Teitelbaum, of the husband and I will say here in open court I do not credit all of his remarks which may have been embellished, but there is no dispute that both victims were restrained, tied up, and assaulted in some manner. That is not disputed.” (Id. at 28 (emphasis added).)

         The Court similarly expressed its concerns regarding Teitelbaum's testimony during the sentencing of codefendant David Hellman on November 17, 2015, noting that “even though the Court has expressed feelings that perhaps Teitelbaum exaggerated what went on, it is clear what went on was a violent incident. It is clear that . . . these men broke into a man's home, tied a man up, tied his roommate up, and hit them, assaulted them in some way.” (ECF No. 1-10, at 26.) The Court further noted that it found some of Teitelbaum's testimony to be “a bit fantastical and embellished.” (Id. at 33.)

         Petitioner was sentenced by this Court on November 17, 2015. (ECF No. 1-7.) In weighing the § 3553 factors as related to Bulmash, who disputed that he knew violence would be used against the recalcitrant husbands, the Court found the following:

I'll start with the 2011 incident that involved not only threats but ultimately assaults as well. I'm sure from what I've read about Mr. Bulmash, from the letters and from what I know having learned about his family, that it was not his hope or intent that he was going to harm someone, but he understood going in that was a possibility; and once he got there, he was a participant when things all went wrong.
It was early morning hours, 3:00, 4 o'clock in the morning, dark, entering an apartment where it turned out not only was the husband present but a roommate. Both of them were restrained because the roommate had the audacity to try to fight back and resist. They were both restrained, tied up, and there were certain injuries suffered.
We discussed today how severe or not severe they were, but we know the husband was taken by the hatsulah to the hospital.

(ECF No. 10-7, at 35-36.) Ultimately, Petitioner was sentenced to a 48-month term of imprisonment, below the Sentencing Guidelines range of 51 to 63 months. (Id. at 7-8, 40.) Petitioner did not file an appeal.

         B. The § 2255 Motion

          On October 26, 2016, Petitioner, acting through counsel, filed the instant motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (ECF No. 1.) Petitioner asserts that he is entitled to relief under § 2255 based on newly discovered evidence confirming that Teitelbaum's testimony at the Epstein trial was false. Petitioner argues that because this Court partially relied on the testimony of Teitelbaum to determine Petitioner's sentence, he must be resentenced. (Id. at 5.) Specifically, Petitioner asserts that photographs admitted at the Epstein trial of Teitelbaum tied and bound were taken days after the incident occurred and did not reflect the true “nature and extent of his purported injuries.” (Id.)

         In support of this claim, Petitioner relies upon an affidavit of Testa Shaska (the “Shaska Affidavit”), a private investigator retained on his behalf. Shaska interviewed Detective Joe Solomon, of the New York City Police Department, regarding the 2011 incident. (ECF No. 1-13, at 1.) Detective Solomon was assigned to investigate the 2011 incident. As part of his investigation, Detective Solomon inspected Teitelbaum and Chaimowitz's apartment and interviewed both regarding the incident. (Id.) The Shaska Affidavit sets forth the following details which Petitioner asserts is “newly discovered” evidence regarding the veracity of Teitelbaum's testimony:

5. Detective Solomon remembered Mr. Teitelbaum's appearance on August 22, 2011 and recalled that Mr. Teitelbaum's face was not “mangled” and he did not appear to be missing any teeth.
6. Detective Solomon told me that there are no photographs in the NYPD case file related to this incident. Detective Solomon also informed me that, during the first interview of Mr. Teitelbaum on August 22, 2011, he did not present Detective Solomon with any photographs or state that any photographs existed related to the incident.
7. One of two days after the incident, according to Detective Solomon, Mr. Teitelbaum arrived at the precinct and showed him pictures which Mr. Teitelbaum represented were “recreations” of the crime scene. Detective Solomon told me that he informed Mr. Teitelbaum that he could not include those photographs in the case file because they were not actual crime scene photographs.

(Id. at 2.) Shaska showed Detective Solomon the photos that were admitted at trial of Teitelbaum and he “confirmed that these photos were the ones that Mr. Teitelbaum showed him . . . and represented to be ‘recreations' of the event.” (Id.)

         In its Answer, the Government argues that not only is this evidence not “newly discovered” as this issue came out during the cross-examination of Teitelbaum at trial, even if it were, it would not entitle Bulmash to a new sentence. (ECF No. 3, at 17-24.) The Government also requests that this Court enforce the waiver of appeal and collateral attack in Petitioner's plea agreement. (Id. at 25-33.)

         III. LEGAL STANDARD

         To grant relief on a federal prisoner's motion to vacate, set aside or correct a sentence under 28 U.S.C. § 2255, the Court must find that “there has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). “Section 2255 permits relief for an error of law or fact only where the error constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting United States v. Addonizio, 445 U.S. 178, 185 (1979)). Accordingly, a petitioner who attacks his sentence “based on some error in the sentencing proceeding [must] allege (1) that the district court received ‘misinformation of a constitutional magnitude' and (2) that the district judge relied at least in part on that misinformation.'” Id. (citing United States v. Spiropoulos, 976 F.2d 155, 163 (3d Cir. 1972)).

         “In considering a motion to vacate a defendant's sentence, ‘the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'” United States v. Booth, 432 F.3d 542. 545 (3d Cir. 2005) (quoting Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). A district court “is required to hold an evidentiary hearing ‘unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'” Id. (quoting Forte, 865 F.2d at 62.)

         IV. DISCUSSION

         The Government argues that Petitioner is not entitled to any relief under § 2255 because he waived his right to bring a collateral attack motion by entering into the plea agreement. Petitioner asserts that the waiver provision in his plea agreement is not enforceable (1) because it was not made knowingly and voluntarily as Petitioner did not know that some of Teitelbaum's testimony was embellished and (2) because enforcement of the waiver would work a miscarriage of justice.

         The Third Circuit has held that “[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008), abrogated in part on other grounds, Garza v. Idaho, 139 S.Ct. 738 (2019). This includes the defendant's right to file an appeal or a collateral attack motion under 28 U.S.C. § 2255. United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015).

         A defendant's waiver of his right to file an appeal or collateral attack motion is enforceable so long as it was “entered into knowingly and voluntarily and [its] enforcement does not work a miscarriage of justice.” Mabry, 536 F.3d at 237. While “a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative duty both to examine the knowing and voluntary nature of the ...


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