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Hellman v. United States

United States District Court, D. New Jersey

May 20, 2019

DAVID HELLMAN, Petitioner,




         Petitioner David Hellman (“Hellman” 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. 5.) Petitioner filed a reply. (ECF No. 6.) For the following reasons, Petitioner's § 2255 motion is denied with prejudice and a certificate of appealability will not issue.


         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. Hellman, Crim. No. 14-101, ECF No. 4 (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”). Id. 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. Id.

         According to the Criminal Complaint, to effectuate an Orthodox Jewish divorce, a husband must provide his wife with a document known as a “get.” Id. 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 6, 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 travelled in interstate commerce to commit extortion, a crime of violence, in violation of 18 U.S.C. § 1952(a). Crim. No. 14-101, ECF No. 125, at 1. As part of the plea agreement, both Petitioner and the Government 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. Specifically, Petitioner agreed to waive his right to file an appeal or collateral attack motion that “challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 24.” Id. at 9.

         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. Id. at 1-2.

         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, 5-1, 5-2, 5-3.) 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 alleged that four of his teeth were broken result of the incident. (Id. at 63.)

         Petitioner was sentenced on November 17, 2015. (ECF No. 1-6.) At sentencing, this Court made certain findings regarding the 2011 forced get in consideration of the § 3553 factors. (Id. at 32-34.) I specifically noted that:

[The] 2011 incident actually involved not only threats but assaults as well. I note that [the Government] did reference the fact that I said yesterday that I heard the testimony of one of the victims, the roommate of the husband, and I said I did not credit all his remarks. I think some of it was a bit fantastical and embellished. But there is no dispute that both victims - the husband and the roommate, and the roommate, who happened to be there because he lived there, wasn't even the object of this get, were restrained, were tied up, were assaulted in some manner. The husband was ultimately taken to the hospital.
And I do understand that there may have been a hope that there would not be physical harm, but everyone who went into that room understood that when you restrain individuals, when you are going to threaten them, and that possibility existed, a real possibility, and it occurred here. Because no one knew how it would actually play out, and they all went in with that knowledge that force could be used, and the recalcitrant husband could suffer harm.

(Id. at 33-34.) Ultimately, Petitioner was sentenced to a 44-month term of imprisonment, below the Sentencing Guidelines range of 51 to 63 months. (Id. at 8, 38.)

         B. The § 2255 Motion

          On November 16, 2016, Petitioner, acting through counsel, filed the instant motion under 28 U.S.C. § 2255. (ECF No. 1.) Petitioner asserts that he is entitled to relief under § 2255 based on newly discovered evidence confirming that certain portions of Teitelbaum's testimony at the Epstein trial was false. Petitioner argues that because Teitelbaum's testimony was a “material” factor relied upon by this Court at sentencing, he is entitled to resentencing. (ECF No. 1-1, at 5.)

         In support of his motion, Petitioner relies upon an affidavit (the “Shaska Affidavit”) submitted by codefendant Simcha Bulmash in support of his own motion under § 2255 for resentencing. Bulmash v. United States, No. 16-7885, ECF No. 1-1.[3] Bulmash retained a private investigator, Testa Shaska, who interviewed Detective Joe Solomon of the New York City Police Department regarding the 2011 forced get. Bulmash, No. 16-7885, ECF No. 1-13. Detective Solomon was assigned to investigate the 2011 incident. Id. 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 two of 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.

         The Government opposes Petitioner's motion, arguing that Petitioner waived his right to file a collateral attack motion in his plea agreement. (ECF No. 5, at 25-35.) The Government further argues that even if that waiver were not enforced, Petitioner's claim for resentencing based on the Shasta Affidavit is frivolous and lacks merit. (Id. at 17-24.)


         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.)


         The Government argues that Petitioner is not entitled to relief under § 2255 because he waived his right to file any collateral attack motion in the plea agreement. Petitioner, however, maintains that enforcement of the collateral attack waiver would work a miscarriage of justice because of the significant effect that Teitelbaum's testimony had on this Court's issuance of his sentence.

         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 waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record before it.” Id. at 238.

         A. Knowing and ...

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