United States District Court, D. New Jersey
L. WOLFSON U.S. CHIEF DISTRICT JUDGE
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.
The Underlying Criminal Proceeding
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.
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.
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.
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.
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.), 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.) 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.)
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.)
The § 2255 Motion
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
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. 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.
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.)
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.
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.)
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.
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).
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.
Knowing and ...