Case 3:14-cr-00287-FLW Document 431 Filed 03/04/16 Page 1 of 10 PageID: 8478

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

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v.
MENDEL EPSTEIN,
JAY GOLDSTEIN, a/k/a Yaakov,
DAVID EPSTEIN, a/k/a Ari, and
BINYAMIN STIMLER

Hon. Freda L. Wolfson

Crim. No. 14-287

DEFENDANT MENDEL EPSTEINS

REPLY IN SUPPORT OF BAIL PENDING APPEAL

Defendant Mendel Epstein has moved for bail pending appeal. The governments response does not apply the correct standard and is therefore unconvincing.
1. The governing statutory rule. The motion for bail argues that so-called
mandatory detention does not apply in this case because conspiracy to kidnap, 18
U.S.C. 1201(c) the only offense for which Rabbi Epstein was convicted is not a
crime of violence. In making this argument, we overlooked the cross-reference in
18 U.S.C. 3143(b)(2) to id. 3142(f)(1)(B).1 Under the latter provision, because the
statutory maximum sentence under 1201(c) is in fact life imprisonment, bail
pending appeal in this case is available under the standards of id. 3145(c). While the
defense therefore withdraws our argument insofar as it contends that 3143(b)(1)

This provision was not ignored by the defense, as the government uncharitably puts it
(Opp. BPA, Doc. 428, at 2), but simply overlooked.

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applies directly, the result is the same. Bail pending appeal can and should be
allowed.
Under 3145(c), this Court is empowered to grant bail pending appeal
whenever it determines that the defendant-appellant meets the conditions of release
set forth in section 3143...(b)(1), ... if it is clearly shown that there are exceptional
circumstances why such persons detention would not be appropriate. In other
words, contrary to the governments argument (Opp. BPA, Doc. 428, at 4-5), the
fairly debatable standard (as explicated in Third Circuit case law) is not superseded
by 3145(c)s extraordinary circumstances rule, but rather continues to apply. The
extraordinary circumstances that the defense acknowledges we must clearly show
to obtain bail pending appeal notwithstanding 3143(b)(2) are separate from and
additional to the 3143(b)(1) criteria. The extraordinary circumstances determination is subject to no strict rules, the parties seem to agree, and is committed in the first
instance to this Courts sound discretion as to whether detention is appropriate.2
The threshold showing with respect to issues on appeal, however, remains the same.
2. The Issues Identified by the Defense Are Fairly Debatable.
On the substantial issues prong of the 3143(b)(1) test, as incorporated into
3145(c), the governments memorandum in opposition to the defendants bail
motion never addresses the only question now before this Court3: whether the

The parties also appear to be in agreement that there is no Third Circuit precedent
discussing or interpreting 3145(c).

The government does not contend in its Opposition that Rabbi Epstein is a danger to the
community or to any person, nor that he is likely to flee. Favorable findings of these points
by clear and convincing evidence were essential, in any event, to this Courts determination
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conclusions reached in the various rulings identified in the bail motion are at least
debatable, novel, or fairly doubtful. United States v. Miller, 753 F.2d 19 (3d Cir.
1985); United States v. Smith, 793 F.2d 85, 88 (3d Cir. 1986). Instead, the government
simply argues that in its view (as would presumably be this Courts own view as well)
the prior rulings were correct. (Opp. BPA, at 5-17). But that is not the point. The issue
is whether the proposed appellate claim may be arguable, and then whether (if the
defendant-appellant proves correct) a reversal would probably result, that is, is it
likely to result in reversal within the meaning of 3143(b)(1).
a. Exclusion of Evidence at the Heart of the Defense.
Evidence is relevant if it makes a fact of consequence to the action more or less
likely to be true. Fed.R.Evid. 401. From the defense perspective, facts are of consequence in a criminal case if they may lead the jury to entertain a reasonable doubt on
any of the elements of the offense. It follows from this simple proposition that the
evidence that would reveal the actual circumstances and mental state (including
beliefs) underlying the events described a trial, which this Court ruled out (Doc. 333),
was arguably admissible on the charge of conspiracy to commit kidnapping. To avoid
this conclusion the government distorts the defense position in several ways. First, the
defense did not contend at trial, and did not argue in the bail motion, that statute
requires proof of a financial benefit. (Compare Opp.BPA, at 6). Rather, because the
indictment charged that the object of the conspiracy was for defendants to obtain
money and other things of value from agunot and their families, Indictment, at 3, and
that he could remain free following the verdict and then after sentencing pending surrender.
18 U.S.C. 3143(a)(1). The defendant will therefore not address them further.

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that the conspiratorial objective was to commit kidnapping for ransom, reward and
otherwise, id., it was proper (surely, at least arguably) for the defense to contest this
allegation and put in issue what the true object and purpose of the defendants
activities was.4 Any confusion of the issues, including the distinction between intent
and motive or a risk of jury nullification, (Opp.BPA, at 7-8), should have been
cleared up through limiting instructions and proper limitation of closing argument, not
through exclusion of key defense evidence, a reasonable jurist could conclude.
The excluded religious evidence was also relevant and arguably erroneously
excluded with respect to the issue whether Rabbi Epstein agreed, as required for a
conviction of conspiracy on Count One, to commit kidnapping, that is, to hold a
putative victim without the victims consent. (See Mtn. for BPA, at 10-11). The issue
was not necessarily, as this Court held, whether consent once granted can be
withdrawn. The defendants sincere, even if factually erroneous belief as to consent
could negate (that is, raise a potential reasonable doubt about) the agreement and
specific intent elements of a conspiracy charge. See United States v. Pitt, 193 F.3d
751, 755 n.1 (3d Cir. 1993) (mistake of fact may negate intent element); United States
v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971) (dictum).5 And in a religious context,
4

The government makes the bizarre argument, in this connection, that because a prosecutor
might have turned the defense evidence of purpose to the governments advantage, by
arguing that performing a mitzvah would be to the defendants benefit, as he perceived it, and
thus potentially satisfy the or otherwise element, it was somehow proper to exclude that
evidence. (Opp. BPA, at 7). To the contrary, that issue would be for the jury to decide. That
defense evidence might not persuade the jury (or even might potentially fail to generate a
reasonable doubt) does not make it inadmissible. To the contrary, as noted in the defendants
motion (at 7) it arguably became all the more relevant when the court permitted the government to withdraw, at the conclusion of the trial, its averment of a financial purpose for the
proposed kidnapping.
5

The jury instructions told the jury otherwise. Tr. (4/13/15), at 66.
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the court at least arguably could not require that the jury find the mistaken belief as to
consent, in order to give it weight, to have been objectively reasonable, so long as the
belief was genuine and sincerely held. See Burwell v. Hobby Lobby Stores, Inc., 573
U.S. , 134 S.Ct. 2751, 2778-79 (2014) (RFRA); Thomas v. Review Board, 450 U.S.
707, 715 (1981) (First Amendment); United States v. Ballard, 322 U.S. 78 (1944)
(same; criminal case).
The prejudice that the defense suffered from the Courts exclusion of critical
defense evidence was exacerbated by the way the government was permitted to
exploit the presentation of its first witness, whose task was supposedly only to explain
for the jury the meaning of technical religious terms in Hebrew that they would be
hearing in the course of the trial (Tr. (2/19/15), at 23), by offering prejudicial opinions
that painted the defendants beliefs as erroneous. The government denies that this
happened, (Opp. BPA, at 9-10), but the record tells a different story. See Tr. (2/19), at
39-40, 43-44 (ruling allowing experts prejudicial opinion), 62-64 (ruling limiting
scope of defense examination of witness on issues opened by government), 74-86
(cross-examination by co-counsel on issues opened by govt witness, subject to
courts limitation on similar issues arguably favorable to defense), 103-10 (cross by
counsel for defendant Epstein).
The weakness of the governments position is highlighted when it changes the
subject to assert (not quoting or even citing to any actual defense argument) that
Epsteins claim boils down to this: he should be excused from violating secular law
because the violation was commanded by religious law. (Opp.BPA, at 7). The
defense never advanced or proposed to advance any such defense of excuse or
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justification at or before trial. See Doc. 233 (2/20/15 letter). The defense position is
what the defendants motion sets forth: that evidence of the defendants sincere
personal beliefs was highly relevant to the jurys ability to make a fair and accurate
determination of elements of the particular offense charged in this case. Such
evidence cannot be categorically excluded, another reasonable jurist might conclude,
simply because those beliefs are religious in nature or in their foundation. See, e.g.,
United States v. Walli, 785 F.3d 1080 (6th Cir. 2015).
The issue of excluding evidence of sincere religious belief is therefore
substantial for purposes of allowing bail pending appeal.
b. Categorical Disallowance of RFRA Defense.
The defendant included, as an issue for consideration on bail, whether this
Court may have erred in categorically finding that the Religious Freedom Restoration
Act provided Rabbi Epstein no succor in this case. (Mtn. for BPA, at 7-9). The
government does not attempt to answer anything that the defense has actually put
forward on this point. (See Opp.BPA, at 16-17). No further reply is warranted.
c. Jury Instruction Issues.
(i) The defendant proposes to pursue on appeal his argument that the Court
should have charged the jury that there cannot be a conspiracy to commit kidnapping
without an agreement to hold the victim against his will for an appreciable period of
time. (Mtn. for BPA, at 12-16). The government concedes that this defense request to
charge was grounded on an interpretation of the pertinent statute in Chatwin v. United
States, 326 U.S. 455 (1946), but argues that the defense has misconstrued the case.
(Opp.BPA, at 11-12). The governments argument is based on its substitution of at
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any time for the phrase for a period of time. The two expressions have totally
different meanings. And more to the point, the government fails to explain how it
could be other than arguable that a federal district court is required to adopt and
follow the interpretation of a given statute articulated by the Supreme Court.
As the motion explains, the articulation of this element, in a conspiracy context
in particular, is essential for distinguishing a conspiracy to kidnap from a conspiracy
to commit extortion, for example. The governments response with respect to Govt of
Virgin Is. v. Berry, 604 F.2d 221, 227 (3d Cir. 1979), is similar to its deflection of our
reliance on Chatwin, ignoring the aspect of the opinion that we rely upon and
addressing instead another portion. (Opp.BPA, at 12-13, discussing 604 F.2d at 22829). The standard for bail pending appeal is more than met on this point.
(ii) The Court also charged the jury with respect to the purpose element (for
ransom, reward or other reason) that the other reason could be any purpose the
defendant desires to achieve, Tr. (4/13), at 56 (instruction on substantive kidnapping). The government implies that the jury would understand that this element had to
be proven (as something agreed to) for the conspiracy count (Opp.BPA, at 10); the
defendants motion asserts otherwise (Mtn. for BPA, at 6). The point is debatable, at
least, given the separate instruction on benefit as it relates to purpose in
conspiracy law (id. 51), which is not an element, and thus might well have confused
the point for the jury. But even if the jury did understand that the courts instruction
on the purpose element carried backwards into the conspiracy instruction it had
previously been given, that instruction did not conform to the Supreme Courts
explication, which requires that the government prove a purpose (or for conspiracy, an
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agreed purpose) of some personal benefit to the defendant. United States v. Healy,
376 U.S. 75, 81-83 (1964). The arguable watering-down of this element was particularly prejudicial in a case where the jury might have found (or at least entertained a
reasonable doubt concerning) the defendants purpose to be altruistic rather than one
of personal benefit to himself. The government again fails to show this is not an
issue of arguable merit for appeal.
c. The jurisdiction element in a conspiracy case.
This Court never charged the jury on any federal jurisdictional element for
conspiracy to commit kidnapping in violation of 18 U.S.C. 1201(c). Tr. (4/13), at
45-54. The government denies this is so, (Opp.BPA, at 13-14), but what it points to is
the instruction for the substantive offense, which the defense has not challenged, and
which was not referenced in or incorporated into the conspiracy instruction. Tr.
(4/13), at 55. The governments response does not even mention the Third Circuits
decision in United States v. Jannotti, 673 F.2d 578, 590-94 (3d Cir. 1982) (en banc),
which R. Epsteins motion argues is controlling with respect to the Commerce Clause
jurisdictional element in federal conspiracy charges. The Third Circuit opinion,
rendered in a Hobbs Act case, differs from the Fifth Circuit opinion which the government cites and upon which this Court relied. At the least, this shows that reasonable
jurists can differ on the subject.6 For this final reason as well, there are substantial
issues for bail pending appeal.
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The government asserts as to this issue (unlike the others raised) that any error would be
harmless beyond a reasonable doubt (the correct standard). (Opp.BPA, at 15). But the
government poses the wrong question under Jannotti. The key issue in a conspiracy case is
not what the jury might find the defendant intended but rather what was agreed to. On the
subject of any agreement, the trial evidence was much thinner than that relating to individual
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3. There Are Extraordinary Circumstances, as Well.

In addition to his substantial issues, R. Epstein has made the required
additional clear showing of extraordinary circumstances. 18 U.S.C. 3145(c). As
already noted, there is no mechanical rule on this aspect. The Court has full
discretion.
The defense relies on R. Epsteins age, health, exemplary life history and
record of service, family circumstances, community service, and the array of unusual
legal issues in the case. The governments first three points in response (Opp.BPA, at
4-5) do not address the extraordinary circumstances he has advanced, but merely
reflect the kind of reasons that may have led Congress to put offenses such as this one
in a special category in the bail law. The governments fourth point is the usual claim
that a sentenced defendants medical problems can be adequately treated by the
Bureau of Prisons. Id. 5. Not only has that bland reassurance been rebutted over and
over again by the bitter experience of actual practice but as to elderly inmates in
particular it has been exposed as untrue by the Department of Justices own Office of
Inspector General. See U.S. Dept. of Justice, Office of Insp. Gen., THE IMPACT OF AN
AGING INMATE POPULATION ON THE FEDERAL BUREAU OF PRISONS (May 2015, rev.
Feb. 2016), available at https://oig.justice.gov/reports/2015/e1505.pdf .
The governments suggestion that Rabbi Epstein lacks exceptional circumstances because he was not the least bit cooperative with law enforcement

intent, since the government elected not to call as witnesses any of the individuals with
whom R. Epstein allegedly conspired, even though they had pleaded guilty and were
presumably available.

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officials, (Opp. BPA, at 5), is frankly outrageous. He did nothing to obstruct the
proceedings, did not lie to agents or prosecutors, or do anything else improper. To the
extent that the government is suggesting he should not receive bail because he
exercised his constitutional right to remain silent when arrested, and then to plead not
guilty and stand trial (resulting in his acquittal on all counts but one), this Court
should firmly reject the governments improper and baseless argument.
CONCLUSION
The motion for bail pending appeal should be granted pursuant to 18 U.S.C.
3145(c). If the motion is not granted, the Court should extend the date for voluntary
surrender long enough to allow the defendant to renew his motion in the Court of
Appeals, for the government to respond, and for a panel of that Court to consider the
matter and render a ruling.

Dated: March 4, 2016

Respectfully submitted,
s/ Robert G. Stahl
_________________________
ROBERT G. STAHL
LAURA K. GASIOROWSKI
PETER GOLDBERGER, Of Counsel

CERTIFICATE OF SERVICE
On March 4, 2016, I served a copy of the foregoing document on the attorneys for the
government by notice of electronic filing, addressed to AUSA Sarah Wolfe and AUSA
Joseph Gribko

s/Robert G. Stahl

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