United States District Court, D. New Jersey
L. WOLFSON, U.S. CHIEF DISTRICT JUDGE
Moshe Goldstein (“Petitioner”) is a federal
prisoner proceeding pro se 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. 4.) 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
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. Goldstein,
Crim. No. 14-113, 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.
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 10, 2014, Petitioner agreed to waive indictment and
pleaded guilty, pursuant to a plea agreement with the
Government, to one count of travelling in interstate commerce
to commit extortion, a crime of violence, in violation of 18
U.S.C. § 1952(a) and 18 U.S.C. § 2. Crim. No.
14-113, ECF Nos. 125, 127. 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.” Crim. No. 14-113, ECF No. 125, at
4. More specifically, Petitioner agreed to waive “the
right to file any appeal, any collateral attack, or any other
writ or motion . . . which 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 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 No. 3-1, at 129-50; ECF No. 3-2, at 1-139.)
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. 3-1, at 147.)
Chaimowitz's arms and legs were also bound. (Id.
at 148.) 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 150; ECF No.
3-2, at 1.) 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.” (ECF No. 3-2, at 2-3.)
Teitelbaum was eventually moved to the kitchen and the
intruders remained with Chaimowitz for about an hour before
leaving the apartment. (Id. at 8-9.) 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
11-12.) 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 13.) Both Teitelbaum and Chaimowitz were taken
to the hospital. (Id. at 14.) Teitelbaum alleged
that four of his teeth were broken result of the incident.
(Id. at 53.)
of the codefendants named in the Criminal Complaint-twelve in
total-began in November 2015. Petitioner was the first to be
sentenced and during his sentencing hearing, I made some
general comments regarding the nature of the crime applicable
to each defendant. (ECF No. 3-1, at 112-15.) In weighing the
§ 3553 factors, I made findings of fact regarding the
2011 forced get, explaining that
The 2011 incident actually 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.
And while the hope may have been to avoid physical harm, that
incident, that episode reveals the fact that these situations
can escalate, and no one knows how they will actually play
out. And as a result, you all go in with the knowledge that
force may be used and that the recalcitrant husband may
suffer harm, and you go in prepared to deal with that.
(Id. at 115-16.) Ultimately, Petitioner was
sentenced to a 48-month prison term, below the Sentencing
Guidelines range of 51 to 63 months. (Id. at 95,
The § 2255 Motion
November 17, 2016, Petitioner filed the instant motion to
vacate, set aside, or correct his sentence pursuant to 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 Teitelbaum's
testimony at the Epstein trial was false.
(Id. at 5.) Petitioner argues that because this
Court partially relied on the testimony of Teitelbaum to
determine Petitioner's sentence, he must be resentenced.
(Id.) 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.)
support of this claim, Petitioner relies upon an affidavit of
Testa Shaska (the “Shaska Affidavit”), a private
investigator retained on behalf of one of Petitioner's
codefendants, Simcha Bulmash. Shaska interviewed Detective Joe
Solomon, of the New York City Police Department regarding the
2011 incident. (ECF No. 3-3, at 75.) 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
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 76.) 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.)
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 Goldstein to a new sentence.
(ECF No. 4, at 17-24.) The Government also requests that this
Court enforce the waiver of appeal and collateral attack
rights set forth in Petitioner's plea agreement.
(Id. at 25-33.)
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 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 the
extent to which Teitelbaum's testimony was embellished,
and (2) because enforcement of the waiver would work a
miscarriage of justice.
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 ...