Case 3:14-cr-00287-FLW Document 370 Filed 05/26/15 Page 1 of 21 PageID: 7570

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA

v.

MENDEL EPSTEIN
JAY GOLDSTEIN
BINYAMIN STIMLER

CR. 3:14-287 (FLW)

:
:

MEMORANDUM IN SUPPORT OF MOTION OF BINYAMIN STIMLER FOR

JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL
PURSUANT TO RULES 29 AND 33
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
Defendant Binyamin Stimler hereby submits this Memorandum in support of his Motions
for a judgment of acquittal on Counts One and Five of the Superseding Indictment under Rule 29
of the Federal Rules of Criminal Procedure or for a new trial under Rule 33 of the Federal Rules
of Criminal Procedure.
ARGUMENT
I.
A JUDGMENT OF ACQUITTAL SHOULD BE ENTERED
BECAUSE NO REASONABLE JUROR COULD CONCLUDE
BEYOND A REASONABLE DOUBT THAT RABBI STIMLER
HAD THE KNOWLEDGE AND INTENT REQUIRED
TO BE GUILTY OF CONSPIRACY OR ATTEMPT TO KIDNAP
The Court of Appeals for the Third Circuit defined the evidentiary standard to be
employed when considering a Rule 29 motion in United States v. Tyson, 653 F.3d 192, 199 (3d
Cir. 2011) (emphasis added):
The evidence is insufficient to sustain a conviction if a rational
trier of fact could not have found proof of guilt beyond a
reasonable doubt.

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See United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (a district court must
review the record in the light most favorable to the prosecution to determine whether any rational
trier of fact could have found proof of guilt beyond a reasonable doubt based on the available
evidence.) (internal citation and quotation marks omitted), quoted in United States v.
Bencivengo, 749 F.3d 205, 210 (3d Cir. 2014). See also United States v. Boria, 592 F.3d 476,
480 (3d Cir. 2010); United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002); United States v.
Wolfe, 245 F.3d 257, 262 (3d Cir. 2001).
The Third Circuit has also articulated a high evidentiary standard in conspiracy
prosecutions to warrant a finding of guilt against an alleged conspirator who happens to be
present when an offense is committed. In United States v. Caraballo-Rodriguez, 726 F.3d 418,
433 (3d Cir. 2013) (en banc), the Third Circuit held that an alleged conspirator may not be found
guilty without proof beyond a reasonable doubt that he knew that he was involved in an illegal
venture. In United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007), the Court of Appeals said
that [o]ne of the requisite elements the government must show in a conspiracy case is that the
alleged conspirators shared a unity of purpose, the intent to achieve a common goal, and an
agreement to work together toward the goal.
The available evidence in this record relating to the Superseding Indictments
allegations in Counts One and Five that Binyamin Stimler committed conspiracy to kidnap
and/or attempted kidnapping does not support a conclusion that he was guilty. Even if all the
evidence is considered in the light most favorable to the prosecution, no reasonable juror could
conclude beyond a reasonable doubt that Rabbi Stimler knew that he was involved in an illegal
venture and shared a unity of purpose with other defendants who are alleged to have
conspired to kidnap and engaged in kidnapping. From the evidence in the record regarding Rabbi
Stimler, innocence is at least as reasonable as guilt. His presence at the warehouse in Edison,
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New Jersey, at the time of the sting alleged in Counts 1 and 5 was an innocent appearance
designed to enable him to perform the important ministerial function of signing as a witness on a
get to be given to an agunah (chained woman).
A. Rabbi Stimler Has the Distinctive Qualifications Required by Jewish Law To Be
a Signing Witness (Eid) on a Get and Was Present for That Innocent Purpose.
Rabbis Goldstein and Ralbag testified that a get is Halachically valid under Jewish Law
only if it is handwritten by a scribe in special calligraphy for the particular named husband and
wife and is signed by two qualified witnesses who write their names in the distinctive get
calligraphy. Rabbi Ralbag testified that he knows Rabbi Stimler to be a qualified eid (witness),
and has seen his name signed on gittin (plural of get). Tr. of 3/9, p. 141. Rabbi Naftali Stolman
testified that Rabbi Stimler had signed as a witness on gittin that Rabbi Stolman also signed as a
witness, and that Rabbi Stolman knew that Rabbi Stimler had the necessary qualifications to be a
witness and had signed on other gittin. Tr. of 3/30, pp. 48-49. The gittin that were witnessed by
Rabbis Stolman and Stimler were not forced gets. Tr. of 3/30, p. 53.
Rabbi Stimlers supervisor at the Interborough Developmental and Consultation Center,
Marlene Akerman, also testified that she knew that Rabbi Stimler participated as a witness at
gittin, and she would permit him to leave early in order to do so. Tr. of 3/31, pp. 55-56. These
were ordinary gittin, not involving a recalcitrant husband. Id.
Rabbi Ralbag testified that it is a mitzvah (religiously obligatory good deed) to
participate in the freeing of an agunah. Tr. of 3/9, p. 149. In his experience even husbands
who are recalcitrant often agree, with no actual or threatened violence, to authorize a get when
they are confronted. Tr. of 3/9, p. 140. Rabbi Stimlers participation as a witness to a get that
would free an agunah is proof only that he was motivated by a desire to fulfill a mitzvah.

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Knowledge that a recalcitrant husband will be confronted is not proof of intent to kidnap or of
participation in an attempt to kidnap.
B. Rabbi Stimler Is Peaceful and Non-Violent and Has a Reputation in Various
Communities, Including His Multi-Ethnic Workplace, For Peacefulness and Non-Violence.
Four witnesses testified to their personal opinion of Rabbi Stimlers character trait of
peacefulness and non-violence and to his reputation in various communities for peacefulness and
non-violence. Rabbi Stolman, who lives in Brooklyn and is familiar with the Orthodox Jewish
community there, testified that Rabbi Stimler who he has known for 18 years since they
studied together at the Yeshiva is a very peaceful person and that he has a reputation for
being a very peaceful person. Tr. of 3/30, p. 49. Betsy Littman, who has known Rabbi Stimler
for 30 years, testified that he is a very peaceful person, very calm, very non-violent. Tr. of
3/31, p. 38. In the Kensington section of Brooklyn where he lives Rabbi Stimler has the
reputation, according to Ms. Littman, as a very peaceful and non-violent person. Tr. of 3/31, p.
39. Her opinion is that Rabbi Stimler would never engage in any violent acts and she added, in
terms that apply particularly to the allegation that he agreed to participate with others planning
violence, that he would not join others engaging in violent acts. Tr. of 3/31, p. 40.
Leonard Teller, who has known Rabbi Stimler since childhood and was the match-maker
who introduced Rabbi Stimler to his wife, testified that Rabbi Stimler is absolutely a peaceful
and non-violent person. Teller also described the reputation Rabbi Stimler has in his
congregation is as a teacher of peacefulness and non-violence. Tr. of 3/31, pp. 46-49. His
supervisor at work, Ms. Akerman, also testified from her daily interaction with him at his place
of employment, that Rabbi Stimler is extremely conciliatory and engaging and non-violent or
aggressive. Tr. of 3/31, pp. 56-57. She testified that her staff (approximately 70 employees
servicing a wide variety of diverse population and multiple languages) viewed Rabbi Stimler
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as an extremely peaceful, engaging, compassionate individual. Tr. of 3/31, p. 58. She

summarized it with the Hebrew phrase rodef shalom someone who pursues and runs after
peace. Id.
C. Rabbi Stimler Was Not Involved or Ever Named in Any of the Conversations
Preparatory to the Sting Alleged in Count 1 and His Prospective Role as a Witness Was
Distinguished from the Roles of the Muscle Men..
Rabbi Stimler was arrested on the evening of October 9, 2013, at the warehouse in
Edison, New Jersey. The record regarding his presence at that location on October 9 proves
innocence of conspiracy and attempted kidnapping rather than knowledge of an illegal venture
or any unity of purpose with individuals who were charged with conspiracy and attempted
kidnapping.
Rabbi Stimler was not a participant in any of the discussions or meetings that preceded
October 9, 2013. His name never was mentioned in any discussion the FBI agents had with any
of the other defendants, and FBI Undercover Agent Weisman first saw him after his arrest (Tr. of
2/24, p. 70-71). FBI Undercover Agent Weis never heard the name Stimler before October 9,
2013 (Tr. of 2/25, pp. 74-75). Nor is there any suggestion in any of the recorded discussions
preceding October 9, 2013, that any prospective witness (eid) who would sign the get that was
to be written on that occasion would be compensated for his service or would be asked to
perform any illegal act. To the contrary, Rabbi Epstein said on August 14, 2013, in a recorded
conversation with the FBI Undercover Agents in their first face-to-face meeting that a scribe
(sofer in Hebrew) and two witnesses (eidim in Hebrew) would be needed (Tr. of 2/24, p. 7375). He then added that four or five muscle guys would also be needed (Tr. of 2/24, p. 75-76).
Agent Weisman testified that there was no discussion regarding the witnesses who were to sign
the get, but there was discussion of the additional muscle guys (Tr. of 2/24, p. 78). Agent Weis
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corroborated this discussion (Tr. of 2/25, pp. 75-77). He also testified about a meeting with
Rabbi Epstein on his porch in which Rabbi Epstein distinguished between the four muscle men
and the two witnesses (Tr. of 2/25, p. 75).
When the subject of cost was raised by Undercover Agent Weis, Rabbi Epstein advised
that it was going to cost $10,000 for the Beth Din and $50,000 or $60,000 for the muscle guys
(Tr. of 2/24, p. 85; Tr. of 2/25, p. 78). No one suggested that the witnesses who were to sign the
get would be paid anything (Tr. of 2/24, p. 85), and Rabbi Stimler was never promised any
payment.
D. Rabbi Stimlers Conduct on the Evening of October 9, 2013, and His Actions at
the Warehouse Were Consistent With Innocence.
Rabbi Stimler joined the group traveling to Edison, N.J., on October 9 after being told by
the doctor treating Mrs. Stimler for cancer that her remaining ovary would have to be surgically
removed. His inattention to the possibility that others who traveled in a van to the warehouse in
Edison might be anticipating violence and his failure to hear any discussion concerning violence
(if there was, in fact, any such discussion within earshot) is explained by the fact that he was
totally preoccupied with the highly disturbing medical prognosis provided to Rabbi and Mrs.
Stimler by Dr. Richard Barakat of Sloan Kettering Hospital on the afternoon of October 9. It has
been stipulated that Dr. Barakat informed the Stimlers that after Mrs. Stimler completed her
chemotherapy, Dr. Barakat will schedule surgery to remove her remaining . . . ovary. Tr. of
3/31, pp. 59-60. Rabbi Stimler had no expectation or anticipation of violence before October 9
and nothing that he consciously heard on the trip to Edison made him think he was a participant
in an attempted kidnapping.
The evidence in the record relating to Rabbi Stimlers conduct at the warehouse on
October 9, 2013, does not support a reasonable finding beyond a reasonable doubt that he had
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any knowledge or unity of purpose with an attempted kidnapping or a conspiracy to kidnap.

Rabbi Stimler did not enter the warehouse with the muscle guys who had a discussion with
Undercover FBI Agent Weis in the warehouse regarding possible violence. Rabbi Stimler first
entered more than six minutes after the muscle guys had entered (Tr. of 2/25, p. 80). (He was
not carrying a flashlight, thereby disproving the assertion that he had been surveilling the area
around the warehouse. The only light found in the warehouse was Potashs headlamp which was
in Potashs possession when he was arrested.) Undercover Agent Weis testified that Rabbi
Stimler was wearing a hoody i.e., a sweatshirt with a head-covering when he entered the
warehouse. He was also wearing sunglasses (Tr. of 2/25, pp. 80-81, 85). FBI Agent Blessington
later testified that the sunglasses were prescription sunglasses (Tr. of 2/25, pp. 170-171), not part
of a disguise. When he entered the warehouse Rabbi Stimler went to the back room where the
mens room and kitchen were located (Tr. of 2/25, p. 82). Although he emerged from the back
room at times, there is no evidence that he participated in or heard any conversation suggesting
violence, and Agent Weis testified that he did not recall discussing violence with Rabbi
Stimler (Tr. of 2/25, p. 86). Agent Weis testified that Rabbi Stimler was standing nearby
when there was talk of violence, but Agent Weis didnt know who was listening and who heard
anything (Tr. of 2/25, p. 87). No reasonable juror could conclude from this equivocal testimony
beyond a reasonable doubt that Rabbi Stimler knowingly participated in an attempted kidnapping
on October 9, 2013.
FBI Agent McCaffery testified that Rabbi Stimler was arrested in the kitchen, not in the
company of the muscle guys who were arrested in the central area of the warehouse (Tr. of
2/25, pp. 143-144, 159). Rabbi Stimler was waiting there to participate in the innocent act of
signing as a witness to the get once the nonexistent husband authorized it. Rabbi Stimler says in
his sworn Declaration that he did not have a balaclava over his mouth when arrested and that the
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photograph of him that was introduced into evidence as Government Exhibit 30-A, page 45 was
staged by the FBI.1 Rabbi Stimlers conduct at the warehouse fails to establish beyond a
reasonable doubt that he had joined a conspiracy to attempt a kidnapping. 2
E. Rabbi Stimler Was Not Present When the Violence Alleged in Paragraphs 7a
and 7b of the Conspiracy Count Was Committed.
The record unequivocally establishes that Rabbi Stimler was not a participant in any of
the violence that preceded the writing and signing of the Chaimowitz get. Mr. Teitelbaum
testified in extensive detail regarding the six or seven men who, he said, broke into the small
room where he and Chaimowitz were asleep on the early morning of August 22, 2011. At no
point in his testimony did he identify anyone resembling Rabbi Stimler as one of the six or seven
men. On account of his size, Rabbi Stimler is not someone who would be overlooked in a small
room had he been present. He would have been the elephant in the room.
Rabbi Stimlers absence during the alleged violence is proved by more than just
Teitelbaums omission. Teitelbaum was asked explicitly whether any of the six or seven
assailants had facial hair. He replied that there was one man with a white beard and Mr.
Eichenthal, who covered part of his beard. Tr. of 3/4, pp. 58-59. He also acknowledged that in

Special Agent Blessington testified that when he was arrested Rabbi Stimler was
wearing a balaclava on the top of his head. Tr. of 2/25, pp. 163-164, 170.
1

In his opening statement, Mr. Gribko asserted that other kidnap members, including
Binyamin Stimler, walked around the perimeter with flashlights to check to see who was around
(Tr. of 2/18, p. 46). FBI Agent Guzman testified that an individual with a larger frame was
shining a flashlight on the fence line of the warehouse property (Tr. of 2/25, pp. 136-138).
Agent Weintraub testified that when walking to the entrance of the warehouse two individuals
were shining flashlights along the fence (Tr. of 2/25, pp. 118, 121, 123-124, 129). In fact, no
flashlight was found on the scene. Nor was Rabbi Stimler arrested with a cellphone another
hypothesis suggested by the FBI agents as a source of light. Rabbi Stimler simply walked
innocently from the rear parking lot where the driver had parked the van to the front of the
building.
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the account he had taped for David Wax he had identified only two men with beards
Eichenthal and another man with a white beard. Tr. of 3/4, p. 60. Rabbi Stimler has a long
brown beard, and Teitelbaum identified no one with that color beard.
Additional proof that Rabbi Stimler was not present during the violence allegedly
committed against Teitelbaum and Chaimowitz was provided during Rabbi Ralbags testimony.
On the basis of recollection refreshed from his notes, Rabbi Ralbag testified that he heard
testimony from two witnesses that four individuals Abraham Goldstein, Abraham Goldsteins
brother, Simcha Bulmash, and Dov Heiman (David Hellman?) broke into the room where
Chaimowitz was sleeping. Tr. of 3/9, pp. 78-79, 83-84, 159. No one testified before Rabbi
Ralbag that Rabbi Stimler was in the group of four men who broke into the room or that Rabbi
Stimler was present in the small room during the alleged assault.
Final conclusive proof that Rabbi Stimler was not present and never witnessed the
alleged assault emerges from the telephone records that the Government has produced.
Government Exhibit 2400, page 24, and Government Exhibit 2122, page 427, show that on
August 22, 2011, a call was made at 5:44 am from Jay Goldsteins cell phone to Rabbi Stimlers
home telephone number, as well as two attempted calls to Rabbi Stimlers cell phone number.
Teitelbaum testified initially that the assault began at 5:40 am. Even according to this initial
testimony Rabbi Stimler was called at home by Jay Goldstein after the assault began. On crossexamination, Teitelbaum acknowledged that he had relied on Chaimowitz to fix the time that the
assault began, and that Chaimowitzs grand jury testimony that it began around 5:00 am may
have been accurate. Tr. of 3/4, pp. 48-50. Hence the telephone records establish that Jay
Goldstein called Rabbi Stimler at home about 45 minutes after the alleged forced entry by four
other individuals into Chaimowitzs bedroom and the assault that allegedly awakened
Teitelbaum. Plainly, Rabbi Stimler was not on the scene during the assault that Teitelbaum
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claimed he and Chaimowitz suffered. The fact that Rabbi Stimler signed a get written in a
different location from that of the husband does not support an inference that he participated in a
kidnapping. 3
F. There Is No Evidence Whatever That Rabbi Stimler Was Involved in Any Way
in The 2009 Forced Get or in The 2010 Forced Get.
The conspiracy alleged in Count 1 of the Superseding Indictment allegedly began in 2009

Rabbi Ralbag identified the second signature on the Chaimowitz get as being Rabbi
Stimlers. Tr. of 3/9, p. 90. Rabbi Stimler was at the location where the Chaimowitz get was
written on August 22, 2011, but all the evidence establishes that he was not present during any
violence or kidnapping allegedly committed that morning. On cross-examination, Rabbi Ralbag
acknowledged that the text of the Chaimowitz get indicated that it was written and signed outside
the presence of the husband because two Hebrew words (omed hayom) are absent. Tr. of 3/9,
p. 143. He also acknowledged (a) that there was no transcript of the testimony given by the
witnesses who appeared before him (Tr. of 3/9, p. 151), (b) that the witnesses were not shown
the summary that Rabbi Ralbag wrote of their testimony (Tr. of 3/9, p. 163), (c) that the
testimony was taken in the Ralbag dining room and that he assumed there were telephone calls
to him during the proceeding (Tr. of 3/9, p. 150), (d) that his memory of what Rabbi Stimler
actually said before him was only general (Tr. of 3/9, p. 152), and (e) that his inquiry was
directed not to whether there was violence but to the writing of the get and the signing of the
get (Tr. of 3/9, pp. 153-154). Rabbi Ralbag acknowledged that he did not ask Rabbi Stimler
whether his report of Chaimowitzs initial unwillingness to authorize the Get was what he heard
from the husband or . . . what others told you the husband said (Tr. of 3/9, p. 155). Rabbi
Ralbag testified specifically on this point: If this was told to him by someone else, and he just
repeated to me what someone else said, or he said it because he heard it himself, that wasnt the
focus of my questioning, and, therefore, I didnt question Rabbi Stimler: Did you hear this from
someone else or were you there present when the husband said it. (Tr. of 3/9, p. 156). No
reasonable juror could conclude from this evidence that Rabbi Stimler participated in or
witnessed any coercion relating to the Chaimowitz get.
3

Rabbi Ralbag did not ask Rabbi Stimler what time he arrived on the scene, but the
telephone records introduced by the government prove that he could not have arrived at
Chaimowitzs room before 5:45 am. Rabbi Ralbag testified that, under Jewish Law, a person
may sign a get as a witness if he hears a husband say, Anyone who hears my voice or Anyone
who hears me or Anyone who hears this can sign a get. (Tr. of 3/9, p. 157). The full Ralbag
testimony surely leaves much more than a reasonable doubt whether Rabbi Stimler did anything
more on August 22, 2011, than hear Chaimowitz authorize the writing of a get and sign the get at
some other location.
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with a forced get that occurred on or about December 1, 2009, in Lakewood, New Jersey. A
second forced get allegedly occurred on or about October 16, 2010. These forced gets were
specified in Counts 2 and 3 (on which the jury returned verdicts of not guilty as to all
defendants) and in Count 1. Many days of trial were taken by the testimony of alleged victims of
these alleged kidnappings. Not one scintilla of evidence ties Rabbi Stimler to either of these
alleged Overt Acts or to the substantive Counts. Nor was Rabbi Stimler involved in any way in
the incident that was the subject of the testimony of Aharon Friedman. There can be no inference
of guilty participation by Rabbi Stimler in any conspiracy relating to these allegedly coerced
Jewish divorces.
II.
RABBI STIMLER SHOULD BE GRANTED
A NEW TRIAL IN THE INTEREST OF JUSTICE
A. Before Any Indictment Was Returned, Rabbi Stimler Volunteered To Answer
Questions by the Prosecution and Truthfully Explained to the Prosecutors His Innocent
Presence at the Warehouse.
Attached to this Memorandum is a Declaration by Rabbi Stimler regarding his voluntary
appearance on March 25, 2014, in the prosecutors office during the pre-indictment stage of this
case. FBI Special Agent Flannelly summarized the meeting in a Form 302 that is attached to
Rabbi Stimlers Declaration.
Because Rabbi Stimler exercised his constitutional right not to testify at trial, the jury did
not know that Rabbi Stimler had volunteered to tell his version of the relevant events to the
prosecutors and submit to interrogation by them and that his version of the events, as told to
the prosecutors, is not contradicted by any trial evidence. Rabbi Stimlers readiness, however, to
speak to the prosecutors and answer their questions truthfully is an additional factor to be
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considered by this Court in deciding whether the jurys guilty verdict is contrary to the weight of
the evidence. A guilty co-conspirator arrested at the scene of an offense would not voluntarily
subject himself to such an interrogation.
In light of the jurys surprising verdict, Rabbi Stimler would, in all likelihood, testify in
his own defense if a new separate trial were granted to him. Such a new trial would enable the
jury to consider his willingness to be interrogated by the prosecutors and the statements he made
to the prosecutors on March 25, 2014.
B. The Courts Erroneous Response to the Question Asked by the Jury Was
Prejudicial and Resulted in a Verdict That Improperly Imposed Criminal Liability for
Failing To Prevent Allegedly Criminal Conduct.
On April 16, 2015, the jury sent in Note #3 (attached as Exhibit I). It stated:
Judge Wolfson, We need clarification on the kidnapping charge. If
you know that someone is being confined against their will and
they do not intervene, does that fulfill element #1 of kidnapping.
After in-chambers discussion with counsel, during which Mr. Stern, Rabbi Stimlers
attorney, maintained that the proper response should be No, the Court responded to the jury in
writing as follows (attached as Exhibit II):
I have interpreted your question as to referring to the kidnapping
counts 2 and 3. If that is accurate, then the answer to your question
is no. If, however, you are inquiring about any other count, please
so indicate, so that I may more fully consider your question and
answer appropriately.
This response erroneously implied to the jury that a defendant could be found guilty of
conspiracy to kidnap (Count 1) and attempted kidnapping (Count 5) if he did not intervene to
prevent a kidnapping, although a similar failure to intervene could not be the basis for a guilty
verdict on charges (Counts 2 and 3) alleging actual kidnappings. The jury may have
implemented this erroneous statement of the law. While acquitting all defendants on Counts 2
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and 3 it possibly found Rabbi Stimler guilty on Counts 1 and 5 only because he failed to
intervene.
The error in the Courts response is manifest, and it was noted on the record by Mr. Stern.
Attached as Exhibit III is the transcript of proceedings on April 16, 2015. An accused who stands
by and does not intervene when a crime is being committed is not guilty of the crime. His
passive presence is not sufficient to make him criminally liable for conduct committed by others.
That is why the Courts response, insofar as it concerned Counts 2 and 3, was plainly correct.
When, as is true of the allegation in Count 5, there is no actual kidnapping being committed and
the alleged offense is only a sting being performed by law-enforcement agents, an accuseds
failure to intervene with an attempted kidnapping cannot make him more culpable than if
there had been a real kidnapping. The same is true of the conspiracy alleged in Count 1. If a
conspirator to a real kidnapping is not guilty if his only participation in the conspiracy is a failure
to intervene in an actual kidnapping, it follows, a fortiori, that he cannot be found guilty of
conspiring to attempt a kidnapping simply because he is present and fails to intervene.
Mr. Stern noted Rabbi Stimlers objection on the record, stating that the correct answer to
the jurys question as to all counts should be either No or No, there is no duty to intervene or
rescue. Exhibit III, p. 6. He added that [a]t the very least the language specifying Counts 2
and 3 should be removed because the jury would draw an inference from that language. Id.
All other defense counsel joined in the objection, two counsel making specific reference to the
difference between Counts 2 and 3 on the one hand and Counts 1 and 5 on the other. Id. at 6-7.
The jury appears to have drawn precisely the erroneous inference that Mr. Stern and other
defense counsel had noted. The jury apparently understood the Courts response as meaning that
they could find all defendants not guilty on Counts 2 and 3 but could find Rabbi Stimler guilty
on Counts 1 and 5 if he failed to intervene to prevent an attempted kidnapping.
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The error was particularly prejudicial with respect to Rabbi Stimler. If any of the
defendants could be viewed as having done nothing more than failing to intervene, it was
Rabbi Stimler. Indeed, the Court explicitly noted that the answer to the jurys question with
respect to Counts 1 and 5 was more nuance[d] with respect to the aiding and abetting charge
against Rabbi Stimler. Id. at 5.
Although the error in this response affected all the defendants, its impact on Rabbi
Stimler was particularly potent. Rabbi Stimler should, therefore, be granted a new trial.
III.
THE FBI VIOLATED FUNDAMENTAL FAIRNESS
IN THE STING THAT ENSNARED RABBI STIMLER
For the reasons previously stated, Rabbi Stimler should be acquitted as a matter of law or
should be granted a new separate trial. There is, however, a more fundamental flaw in this
prosecution that affects not only Rabbi Stimler but also those who were tried with him and the
accused who pleaded guilty to lesser offenses. In light of the record of this trial, the Court should
dismiss all charges because the FBIs sting the only charge on which guilty verdicts have
been returned and pleas have been entered (other than the Waxs' pleas) violated fundamental
fairness standards that have been articulated by the Court of Appeals for the Third Circuit and by
other federal courts.
In United States v. Twigg, 588 F.3d 373 (3d Cir. 1978), the Court of Appeals for the
Third Circuit vacated convictions because it found that the conduct of the DEA reached a
demonstrable level of outrageousness that should not be countenanced by a court. In light of
the jurys verdict which convicted defendants only on the sting conducted by the FBI the
Court should now consider the fairness of prosecuting and possibly imprisoning one or more
individuals when government agents (a) concocted a hypothetical crime, (b) forged a religious
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marriage certificate, (c) made repeated phony representations so as to induce the Beth Din of
America, a respected religious institution, to give them a formal ecclesiastical document attesting
to an emergency situation, (d) trolled in rabbinic waters until they found a vulnerable rabbi, (e)
rejected the rabbis initial suggestions that did not involve attempted kidnapping, (f) exploited
the rabbis religious convictions by exaggerated false emotional displays, (g) selected a location
for an attempted kidnapping, and (h) encouraged and participated in preparation for violence and
attempted kidnapping. In these circumstances the government conduct that produced the jurys
guilty verdict was outrageous, and fundamental fairness requires that any conviction resulting
from it be vacated.
A. The Claim of Outrageous Government Conduct Is Timely Because Relevant
Facts Were Not Known Before Trial.
When the outrageous character of the governments conduct is known by the
defendants before trial, the Third Circuit has held that a motion based on outrageous government
conduct is waived if not made before trial. See United States v. Salahuddin, 765 F.3d 329, 350
(3d Cir.2014); United States v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999); see also United States v.
Mausali, 590 F.3d 1077, 1080-1081 (9th Cir. 2010). But the decisions requiring the motion to be
made before trial have been limited to situations in which the facts constituting outrageousness
were known to the defendant before trial. Salahuddin, 765 F.3d at 350 (Cooper has presented no
explanation or excuse for his failure to present these arguments prior to trial. He had sufficient
opportunity to do so, as the evidence upon which he now relies in support of these claims was
available to him well before trial.); Pitt, 193 F.3d at 760 ([T]he necessity for the pretrial
motion to dismiss is obvious unless the evidence supporting the claim of outrageous government
conduct is not known to the defendant prior to trial.); Mausali, 590 F.3d at 1081 (Defendant
has offered no explanation whatsoever, and we find none in the record. Defendant knew of the
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factual basis supporting his claim at least six months before trial began, when the indictment
issued.)
Detailed facts regarding the sting first emerged at trial. At trial, the defense learned
details of the origin of the sting and the convoluted route by which the FBI undercover agents
found Rabbis Wolmark and Epstein. The testimony at trial concerned details of the false
representations made to ORA and to the Beth Din of America (such as the fabricated ketubah
and the forged email from the purported husband)4 to mislead the leading Jewish religious
institution into issuing an official ecclesiastical seruv. Trial testimony showed that the FBI agents
went searching for a rabbi whom they could ensnare with their concocted story, first probing
ORA and then the Beth Din of America. Not until Special Agents Weisman and Weis testified
did the full picture emerge of the repeated efforts by FBI Agents Weisman and Weis to persuade
Rabbi Epstein that the situation was dire. The full picture of the FBI agents overinvolvement
in creating and executing the attempted kidnapping was not known by defense counsel before the
facts emerged during trial.
Moreover, the acquittal of all defendants on Counts 2 and 3 justifies closer examination
of the sting, which is the only factual basis for the guilty verdicts on Counts 1 and 5. When it
was assumed that the husbands who, according to the prosecution, had actually been kidnapped
were credible and that the prosecution could prove that Rabbi Epstein had been guilty of prior
kidnappings, the contention that the sting was outrageous had much less force than after the
jurys verdict that rejected the testimony of the husbands and found Rabbi Epstein not guilty of

See Tr. of 2/19, pp. 135, 143.

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Counts 2 and 3.5 The jury apparently did not believe prosecution witnesses Markowitz,
Bryskman, and the Waxs. It would similarly have disbelieved Chaimowitz if the prosecution had
ventured to put him on the witness stand. Witnesses testified that men who acted as Markowitz,
Bryskman, and Chaimowitz did i.e., who refused, notwithstanding rabbinic decrees, to
authorize a get for wives who were agunot were scoundrels. The jury was not ready to render
guilty verdicts against defendants who had participated in coercing such scoundrels. In the
sting the FBI created a scenario in which it never had to produce a live scoundrel husband.
One may infer from the verdict that the absence of a real husband whose villainy could be
demonstrated to the jury during his testimony led the jury to return a guilty verdict against those
who participated in the wholly fictional sting.
Following the jury verdict, the relevant issue is not whether the FBI had some legitimate
basis for seeking to lure into a fictional attempted kidnapping an individual who had engineered
or participated in three earlier kidnappings which is how the charges looked before trial. It is,

The prosecutors opening statement asserted that the conspirators had committed
kidnappings in 2009, 2010, and 2011, and were subsequently caught in 2013 by an FBI sting.
See Tr. of 2/18, p. 34:
5

You are going to hear as part of this conspiracy in 2009, the defendants and their
co-conspirators lured a man named Israel Markowitz from Brooklyn, New York.
They grabbed him, they tied him up and they threw him in a car, and beat him
until he did what they wanted him to do. You are going to hear in 2010 the
defendants and their co-conspirators lured a man named Yisrael Bryskman from
Brooklyn, New York, to Lakewood, New Jersey. They grabbed him, they
handcuffed him, and they beat him until he gave them what they wanted. You are
going to hear in 2011 the defendants and their co-conspirators broke into the
apartment of two men, Usher Chaimowitz and Menachem Teitelbaum. They
grabbed them. They tied them up, and they beat them both until Chaimowitz gave
them what they wanted. And you are going to hear in 2013, the defendants and
their co-conspirators planned to kidnap an undercover FBI Agent in connection
with this FBI operation.
The governments dismissal of Count 4 and the jurys verdict on Counts 2 and 3
eradicated the purported three-year justification for the sting.
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rather, whether an elaborate FBI sting that ensnared a rabbi with a past history that the jury has
found to be unblemished violates principles of fundamental fairness.
B. Under the Standards Articulated by the Third and Ninth Circuits, the FBIs
Involvement in the Attempted Kidnapping Was So Excessive That It Is Fundamentally
Unfair To Permit Convictions To Stand.
In United States v. Black, 733 F.3d 294 (9th Cir. 2013), the Ninth Circuit rejected an
outrageous government conduct challenge to a reverse sting operation that the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) created to ensnare individuals who were
willing to carry out an armed robbery of a (fictional) cocaine stash house. 733 F.3d at 297298. In the Black case, the ATF hired a confidential informant who was assigned to try and find
some people that . . . are willing to go commit a home invasion. 733 F.3d at 299. That
assignment paralleled the assignment of the undercover FBI agents in this case to try and find
some people who are willing to commit a kidnapping in order to secure a get for an agunah.
The efforts made by the ATF to find a suitable target and the false representations made
to the target when one was identified are comparable to the conduct of the FBI in this case. See
733 F.3d at 298-301. The Ninth Circuit noted that the ATF operation differed in two respects
from the usual law enforcement tactics that have been held reasonable: First, [t]he crimes of
conviction . . . resulted from an operation created and staged by ATF. Most of the hard evidence
against the defendants consisted of words used at meetings . . . . [D]efendants were responding to
the governments script. 733 F.3d at 303. Second, how the government recruited these
defendants. ATF was not infiltrating a suspected crew of home invasion robbers, or seducing
persons known to have actually engaged in such criminal behavior. Rather, ATF found Simpson
by trolling for targets. Id. These two distinctions from usual law enforcement tactics were
present in this case. The operation was created and staged by the FBI, and the hard evidence
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(emphasized over and over by the prosecutions presentation of Rabbi Epsteins words on
videotape) consisted of words used at meetings which were responses to the governments
script. And, as clearly emerged from the trial testimony, the FBI Agents trolled for targets.
They were not infiltrating a suspected crew of kidnappers. They went first to ORA, then to the
Beth Din of America, then to Rabbi Wolmark, and finally contacted Rabbi Epstein.
The Ninth Circuit in Black articulated standards for determining whether government
conduct in such a sting should be considered outrageous and require a fundamental fairness
reversal of a conviction. Application of those standards set out at pages 303-310 of the Black
opinion warranted the Ninth Circuits affirmance of the conviction of defendants charged as a
result of the Black sting. In this case application of the same standards requires reversal:
(1) There was no individualized suspicion when the sting began of one or more
defendants. Rabbis Wolmark and Epstein were discovered only after the unfruitful ORA and
Beth Din of America probes. (2) The principal target Rabbi Epstein -- had no criminal
background or propensity and the FBI learned of his involvement in other alleged kidnappings
after it first contacted him. (3) The government approached the defendant initially and
proposed the criminal enterprise. (4) The government encouraged [the] defendant to
participate in the charged conduct and exerted pressure or concern by exploiting Rabbi
Epsteins religious convictions regarding a desperate agunah. (5) The duration of the
governments participation in [the] criminal enterprise was not short-term government
involvement but extended from start to finish. (6) There was particularly offensive conduct
taken by the government in creating a false religious wedding contract and in lying to a
religious judicial body to obtain a rabbinic order that appeared to warrant extraordinary relief. (7)
The nature of the crime being investigated was that it posed no great risk of violence in
residential communities.
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The standards articulated in the recent Ninth Circuit opinion in Black are substantially
identical to those applied by the Third Circuit in Twigg. If those standards are applied to the facts
of this case, the FBIs sting must be held to have crossed the line.
A final factor that makes the sting in this case particularly reprehensible is the
governments exploitation of the defendants religious obligations. The Court has excluded
reliance on religious duty as a potential defense to the conspiracy and kidnapping charges, but it
cannot deny that the FBI counted on the religious duty of Orthodox Jews when it approached
Rabbis Wolmark and Epstein (as well as ORA and the Beth Din of America) and sought to lure
them into the commission of an offense. In Twigg and Black and in all reported outrageous
government cases the motivation for the conduct that produces a conviction was pecuniary the
target found by the government agents managing the sting succumbed to the government
agents suggestion in order to make money. In the present case, the principal motivation of all
defendants who were ensnared by the sting was the religious obligation to free an agunah.
C. The Current Policy of the Department of Justice Disfavors Such Stings.
The Chicago Tribune of January 29, 2015, reported: Federal prosecutors in Chicago
have quietly dropped narcotics conspiracy charges against more than two dozen defendants
accused of ripping off drug stash houses as part of controversial undercover stings that have
sparked allegations across the country of entrapment and racial profiling. The full article in the
Chicago Tribune and a similar report in the New York Times are reproduced as Exhibit IV to this
Memorandum.
This policy decision by the Department of Justice to reverse the sting practices that
permitted the ATF to concoct fictional crimes and lure potential defendants into participation in
government-created illegality applies with even greater force to the sting that resulted in
convictions in this case. This sting was directed at the Orthodox Jewish community. It
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undermined the communitys efforts to deal with an intractable problem the plight of chained
women whose unscrupulous husbands maintain unjustified barriers to their remarriage. This
Court should repudiate the FBIs efforts and enter a judgment of acquittal for all defendants,
including Rabbi Stimler.
CONCLUSION
In addition to the contentions presented above, Rabbi Stimler adopts post-trial arguments
applicable to him made by Rabbis Epstein and Goldstein. He also moves again under Rule 29 of
the Federal Rules of Criminal Procedure for a judgment of acquittal on grounds stated in writing
at the conclusion of the governments case and again at the conclusion of all the evidence. (The
Court reserved judgment on these motions.) Accordingly, this Court should (a) grant Rabbi
Stimlers motions for judgment of acquittal, or (b) grant Rabbi Stimler a new trial under Rule 33
of the Federal Rules of Criminal Procedure, or (c) grant a judgment of acquittal in the interest of
fundamental fairness.
Respectfully submitted,
Date: May 26, 2015

s/Nathan Lewin
__________________________
NATHAN LEWIN
LEWIN & LEWIN, LLP
888 17th Street NW, 4th Floor
Washington, DC 20006
202-828-1000 phone
202-828-0909 fax
nat@lewinlewin.com

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