Jay Goldstein Appeal August 2016

Case: 15-4095
Document: 003112373342
Page: 1
Date Filed: 08/05/2016
Nos. 15-4053, 15-4094, 15-4095

IN THE
United States Court of Appeals

FOR THE THIRD CIRCUIT
United States of America,
v.
Jay Goldstein et al.,
Defendants-Appellants.
On Appeal from the United States District Court
For the District of New Jersey,
No. 14-cr-00287-FLW, Before the Hon. Freda L. Wolfson, U.S.D.J.
BRIEF FOR APPELLANT JAY GOLDSTEIN

AIDAN P. OCONNOR, ESQ.
PASHMAN STEIN WALDER HAYDEN, P.C.
21 MAIN STREET, SUITE 200
HACKENSACK, NEW JERSEY 07601
(201) 488-8200
Attorneys for Defendant-Appellant
Jay Goldstein
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TABLE OF CONTENTS
JURISDICTIONAL STATEMENT ......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED ...................................................... 1
STATEMENT OF THE CASE ................................................................................. 3
SUMMARY OF THE ARGUMENT ....................................................................... 5
ARGUMENT ............................................................................................................ 8
POINT ONE
THE DISTRICT COURTS JURY INSTRUCTIONS ON THE
ELEMENTS OF CONSPIRACY AND THE UNDERLYING OFFENSE
OF FEDERAL KIDNAPPING WERE CONSTITUTIONALLY
DEFECTIVE AND REQUIRE A REVERSAL OF JAY GOLDSTEINS
CONVICTIONS .................................................................................................. 8
POINT TWO
JAY GOLDSTEINS CONVICTIONS MUST BE REVERSED BECAUSE
THE DISTRICT COURT IMPROPERLY ADMITTED TESTIMONIAL
HEARSAY STATEMENTS AGAINST JAY GOLDSTEIN IN
VIOLATION OF HIS RIGHTS UNDER THE CONFRONTATION
CLAUSE OF THE SIXTH AMENDMENT ...................................................... 8
District Court Ruling ......................................................................................... 13
Standard of Review ........................................................................................... 15
A.
The hearsay statements admitted through Ralbags testimony

do not satisfy the requirements of the hearsay exclusion for coconspirator statements, and thus were inadmissible .......................... 15
1.
The Government failed to establish by a preponderance of the

evidence that Avrohom and Bulmash were co-conspirators of
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the defendants Mendel Epstein, Jay Goldstein and Binyamin

Stimler...16
2.

evidence that these statements, made two months after the
Chaimowitz get, were made in furtherance of the
conspiracy...17
B.
Jay Goldsteins rights under the Confrontation Clause were

violated by the introduction of these testimonial statements
because he was unable to cross examine the non-testifying
declarants ............................................................................................ 19
C.
Because Ralbag did not have sufficient recollection about the

testimony from the beth din, and the contents of the document
relied upon to refresh his recollection were of questionable
origins, Ralbags testimony was unreliable and should have been
excluded.............................................................................................. 21
POINT THREE
JAY GOLDSTEINS CONVICTIONS SHOULD BE REVERSED
BECAUSE THE GOVERNMENT UTILIZED CELL SITE LOCATION
INFORMATION, OBTAINED WITHOUT A WARRANT, TO
CONNECT JAY GOLDSTEIN TO THE ALLEGED KIDNAPPINGS,
IN VIOLATION OF HIS FOURTH AMENDMENT RIGHTS ...................... 24
The District Court Ruling.................................................................................. 26
The CSLI Evidence at Trial .............................................................................. 27
Standard of Review ........................................................................................... 29
A.
The Governments failure to obtain a warrant on probable cause

before collecting historic CSLI from Jay Goldsteins cellular
provider violated the Fourth Amendment .......................................... 29
1.
The Government obtained CSLI for the cell phone
ii
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associated with Jay Goldstein without a warrant, without

demonstrating probable cause, and without demonstrating
reasonable suspicion ................................................................ 31
B.
2.
Because Jay Goldstein maintained a reasonable expectation

of privacy in his whereabouts and movements over an
extended period of time, the Governments collection of
CSLI constituted a search ........................................................ 33
3.
Recent Supreme Court jurisprudence on reasonable

expectations of privacy in the digital age undermines
the decisions that uphold the Governments collection of
CSLI in the absence of a warrant ............................................. 35
4.
A warrant requirement for CSLI would not interfere

with effective law enforcement investigations ....................... 47
The Government cannot rely on the good-faith exception to the

warrant requirement to excuse the illegal collection of Jay
Goldsteins CSLI without a warrant .................................................. 48
POINT FOUR
THE DISTRICT COURT IMPROPERLY DENIED DEFENDANTS
THE RIGHT TO PRESENT A DEFENSE TO THE KIDNAPPING
AND CONSPIRACY CHARGES BY PROHIBITING DEFENDANTS
FROM PRESENTING EVIDENCE OR ARGUMENT AS TO THEIR
BELIEFS ABOUT ORTHODOX JEWISH DIVORCE LAW TO
NEGATE THE ELEMENTS OF SPECIFIC INTENT AND PURPOSE ........ 52
POINT FIVE
THE DEFENDANTS CONVICTION VIOLATE THE RELIGIOUS
FREEDOM RESTORATION ACT BECAUSE THE DEFENDANTS
ACTIONS WERE MOTIVATED EXCLUSIVELY TO ENGAGE IN
THE FREE EXERCISE OF RELIGION .......................................................... 52
POINT SIX
iii
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THE DISTRICT COURTS RESPONSE TO A JURY QUESTION

PREJUDICED DEFENDANTS BECAUSE IT ERRONEOUSLY
SUGGESTED TO THE JURY THAT A DEFENDANT COULD BE
FOUND GUILTY OF CONSPIRACY TO KIDNAP OR ATTEMPTED
KIDNAPPING MERELY FOR FAILURE TO INTERVENE TO
PREVENT THE KIDNAPPING....................................................................... 52
POINT SEVEN
THE GOVERNMENTS STING OPERATION WAS
UNCONSTITUTIONALLY OUTRAGEOUS AND VIOLATED DUE
PROCESS STANDARDS ................................................................................ 53
CONCLUSION ....................................................................................................... 53
iv
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TABLE OF AUTHORITIES
CASES
PAGE
Crawford v. Washington,
541 U.S. 36 (2004)........................................................................................... 19-20
Illinois v. Krull,
480 U.S. 340 (1987).............................................................................................. 48
In re Application of U.S.,
620 F.3d 304 (3d Cir. 2010) .......................................................................... passim
In re Application of the U.S.,
724 F.3d 600 (5th Cir. 2013) ......................................................................... passim
727 F. Supp. 2d 571 (W.D. Tex. 2010) ........................................................... 49-50
2011 WL 679925 (E.D.N.Y. Feb. 16, 2011) ........................................................ 49
Katz v. United States,
389 U.S. 347 (1967).............................................................................................. 30
Kyllo v. United States,
533 U.S. 27 (2001).......................................................................................... 30, 35
Ohio v. Clark,
135 S.Ct. 2173 (2015) ........................................................................................... 20
Riley v. California,
134 S.Ct. 2473 (2014) ..................................................................................... 30, 38
Smith v. Maryland,
442 U.S. 735 (1979)..............................................................................29-30, 41-42
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United States v. Adams,

759 F.2d 1099 (3d Cir. 1985) ............................................................................... 15
United States v. Berrios,
676 F.3d 118 (3d Cir. 2012) ................................................................................. 20
United States v. Bobb,
471 F.3d 491 (3d Cir. 2006) ................................................................................. 17
United States v. Carpenter,
819 F.3d 880 (6th Cir. 2016) ......................................................................... passim
United States v. Davis,
754 F.3d 1205 (11th Cir. 2014) ............................................................................ 49
United States v. Davis,
785 F.3d 498 (11th Cir.) ................................................................................ passim
United States v. Desena,
260 F.3d 150 (2d Cir. 2001) ................................................................................. 18
United States v. Fullmer,
584 F.3d 132 (3d Cir. 2009) ................................................................................. 29
United States v. Jones,
132 S.Ct. 945 (2012)...................................................................................... passim
United States v. Karo,
468 U.S. 705 (1984)......................................................................................... 35-37
United States v. Knotts,
460 U.S. 276 (1983).............................................................................................. 36
United States v. Miller,
425 U.S. 435 (1976).............................................................................................. 43
United States v. Mitchell,
31 F.3d 628 (8th Cir. 1994) .................................................................................. 18
vi
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United States v. Provenzano,

620 F.2d 985 (3d Cir. 1980) ................................................................................. 17
United States v. Serafini,
233 F.3d 758. n.14 (3d Cir. 2000) ........................................................................ 15
United States v. Turner,
718 F.3d 226 (3d Cir. 2013) ............................................................................ 15-16
United States v. Vasquez-Algarin,
821 F.3d 467 (3d Cir. 2016) ................................................................................. 29
STATUTES
18 U.S.C. 1201 ....................................................................................................... 3

18 U.S.C. 1952(a)(2) ............................................................................................ 16
18 U.S.C. 2703 ............................................................................................... passim
28 U.S.C. 1291 ....................................................................................................... 1
RULES
Fed. R. App. P. 28(i) ..................................................................................... 8, 52, 53

Fed. R. Evid. 801(d)(2)(A) ..................................................................................... 10
Fed. R. Evid. 801(d)(2)(E) ............................................................................... passim
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JURISDICTIONAL STATEMENT
Defendant-Appellant Jay Goldstein appeals as of right, pursuant to 28
U.S.C. 1291 from a final judgment of conviction filed on December 17, 2015,
following a jury trial, for conspiracy to commit kidnapping and for attempted
kidnapping, Counts 1 and 5 of the superseding indictment. (JA-108a to JA-112a.)1
Jay Goldstein was sentenced on December 16, 2015, to 96 months imprisonment

on each count, to be served concurrently. (JA-109a.) Timely notice of appeal was
filed on December 29, 2015. (JA-2a.)
STATEMENT OF THE ISSUES PRESENTED
1.
Whether the District Courts jury instructions regarding the elements of

conspiracy and the underlying offense of federal kidnapping were deficient
because the court refused (i) to require the jury to find, in order to convict
the defendants for conspiracy, that the agreement, if accomplished, would
satisfy the interstate commerce element; (ii) to instruct the jury that the
victims had to be held for an appreciable period of time; and (iii) to limit
the jury to finding the ransom or reward or otherwise actually alleged in
the superseding indictment?
JA refers to the Defendants-Appellants Joint Appendix.
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2.
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Whether the out-of-court statements of the beth din witnesses to Rabbi

Aryeh Ralbag two months after the alleged kidnapping of Usher Chaimowitz
were admissible as co-conspirator statements or whether their admission
violated Jay Goldsteins Sixth Amendment right to confrontation?
3.
Whether Jay Goldsteins Fourth Amendment rights were violated by the
introduction of the cell site location information obtained pursuant to a court

order under 18 U.S.C. 2703(d) instead of a warrant supported by probable
cause?
4.
Whether the District Court erred in prohibiting the defendants from

presenting a defense to the kidnapping and conspiracy charges as to their
beliefs about Orthodox Jewish divorce law to negate the elements of specific
intent and purpose?
5.
Whether the prosecution and convictions of the defendants for their

religiously motivated conduct violates the Religious Freedom Restoration
Act?
6.
Whether the District Courts improper response to a jury question prejudiced
the defendants because it erroneously suggested that a defendant could be

found guilty of conspiracy to kidnap or attempted kidnapping for failure to
intervene to prevent the kidnapping?
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7.
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Whether the Governments sting operation was unconstitutionally

outrageous in violation of due process standards?
STATEMENT OF THE CASE
Jay Goldstein was convicted, following a jury trial, of conspiracy to commit
kidnapping and attempted kidnapping. Jay Goldstein appeals his convictions

because of numerous errors by the District Court that were not harmless and that
denied him a fair trial. Jay Goldstein adopts the statement of the case provided in
the opening brief of Appellant Mendel Epstein in No. 15-4095, and adds the
following.
The superseding indictment, issued on September 11, 2014, charged Jay
Goldstein in four counts. (JA-172a to JA-188A.) He was charged in Count 1 with
conspiring, in violation of 18 U.S.C. 1201(c), from 2009 to in or about October
2013, to commit to federal kidnappings, contrary to id. 1201(a)(1). The
conspiracy charge encompassed three substantive kidnappings from 2009, 2010,
and 2011, alleged as overt acts, as well as the attempted kidnapping arising out of
the 2013 sting. Counts 2, 3, and 4 charged the substantive kidnappings alleged to
have taken place in 2009, 2010, and 2011, respectively; Count 5 charged the
attempted 2013 kidnapping. Jay Goldstein was charged in all counts except for the
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substantive kidnapping alleged in Count 2. Count 4 was dismissed at trial on the

Governments motion. (JA-155.)
After an eight-week trial and two-and-one-half days of deliberation, the jury
acquitted Jay Goldstein of the substantive kidnapping counts. (JA-4855a to JA4859a.) He was found guilty only of conspiracy (Count 1) and attempted
kidnapping (Count 5) relating to the Government sting operation. Id. By Opinion
and Order filed December 11, 2015, the District Court denied the defendants
motions for judgment of acquittal or a new trial. (JA-74a to JA-97a.)
At sentencing, with the exception of the kidnapping that had been charged in
Count 4 but was dismissed at the end of trial, the District Court agreed with the
jury that proof was lacking to hold Jay Goldstein responsible for the other alleged
kidnappings in 2009 and 2010, underlying Counts 2 and 3 of the superseding
indictment, and, therefore did not consider them as part of the conspiracy or for
purposes of the Guidelines sentencing grouping calculation. (See DDE 436
(Goldstein Sentencing Tr., 12/16/15, at 7).) The court sentenced him to 96 months
imprisonment on Count 1 and on Count 5, to be served concurrently. (JA-108a

JA-112a.) In addition the court imposed a five-year term of supervised release,
and a special assessment of $200, but no fine. Judgment was entered on December
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17, 2015. (JA-108a to JA-112a.) A timely notice of appeal was filed on December
29, 2015. (JA-2a.) Jay Goldstein is currently incarcerated serving his sentence.
SUMMARY OF THE ARGUMENT
The District Court erred when it permitted the Government to introduce,
through the testimony of Rabbi Areyh Ralbag, testimonial hearsay statements of
individuals claimed to be Jay Goldsteins co-conspirators. Ralbag had presided
over a beth din that was convened to determine whether the get that was
purportedly obtained during the alleged kidnapping that was charged in Count 4 of
the indictment was valid. According to Ralbag, four witnesses testified before him
at the beth din on October 29 and October 30, 2011, about the procedures used to
obtain that get two months earlier on August 22, 2011. Those witnesses did not
testify at trial, but the court permitted the Government to admit their statements,
through Ralbags testimony, pursuant to the hearsay exclusion for co-conspirator
statements, to demonstrate the involvement of the defendants in the August 22,
2011 alleged kidnapping.
The admission of these statements was improper. These statements did not
qualify as co-conspirator statements because they were not made in furtherance of
the conspiracy, whose object had been obtained two months earlier, and because
several statements came from individuals who pled to extortion and not to the
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kidnapping or conspiracy charges at issue. Moreover, these statements were

clearly testimonial, as they occurred in a prior hearing, and thus, their admission
against the defendants, without an opportunity for the defendants to cross examine
the declarants, violated the defendants rights under the Sixth Amendments
Confrontation Clause. Lastly, Ralbags testimony was unreliable because he
clearly did not have sufficient recollection about the testimony from the beth din,
and the contents of the document relied upon to refresh his recollection were of
questionable origins.
The District Court also erred when it admitted at trial, over Jay Goldsteins
objection, historic cell site location information (CSLI) for the cell phone
associated with Jay Goldstein. Whenever a cell phone makes or receives a call or
text, it has to connect to a nearby cell tower in order to send or receive the call or
text. Cell phone companies keep recordshistoric CSLIof what cell phones
connect to what towers at what times. In criminal prosecutions, the government
often seeks to introduce CSLI to place a defendant (specifically the cell phone
associated with a defendant) in the proximity of a crime at the time a crime
occurred.
In this case, the Government obtained CSLI for the cell phone associated
with Jay Goldstein without a warrant and without probable cause. Instead, the
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Government obtained an order under 18 U.S.C. 2703(d), which allows a court to

issue an order for disclosure of records from a provider of electronic
communication services upon a showing of reasonable suspicion. Because Jay
Goldstein has a reasonable expectation of privacy in his whereabouts over an
extended period of time, the Governments collection of historic CSLI constituted
a search. Because this was a search, the Government was required to seek a
warrant supported by probable cause. The application submitted by the
Government for the order under 2703(d) failed to demonstrate reasonable
suspicion, let alone probable cause. Thus, the Governments collection and use of
CSLI at Jay Goldsteins trial violated his Fourth Amendment rights.
Jay Goldstein further joins in the arguments set forth in the briefs of his codefendants, Mendel Epstein, No. 15-4095 and Binyamin Stimler, No. 15-4053.
These errors were not harmless, and Jay Goldsteins convictions on Counts 1
and 5 should be reversed with instructions to enter a judgment of acquittal.
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ARGUMENT
POINT ONE
THE DISTRICT COURTS JURY INSTRUCTIONS ON THE ELEMENTS
OF CONSPIRACY AND THE UNDERLYING OFFENSE OF FEDERAL
KIDNAPPING WERE CONSTITUTIONALLY DEFECTIVE AND
REQUIRE A REVERSAL OF JAY GOLDSTEINS CONVICTIONS.
Pursuant to Fed. R. App. P. 28(i), Jay Goldstein adopts the argument set
forth in the opening brief of Appellant Mendel Epstein in No. 15-4095.
POINT TWO
JAY GOLDSTEINS CONVICTIONS MUST BE REVERSED BECAUSE
THE DISTRICT COURT IMPROPERLY ADMITTED TESTIMONIAL
HEARSAY STATEMENTS AGAINST JAY GOLDSTEIN IN VIOLATION
OF HIS RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE
SIXTH AMENDMENT.
At trial, the Government offered the testimony of Rabbi Aryeh Ralbag
(Ralbag) to connect several of the defendants to the alleged kidnapping of Usher
Chaimowitz (Chaimowitz) on August 22, 2011 in Brooklyn, New York, which
was charged in Count 4 of the superseding indictment and which was one of the
overt acts of the alleged conspiracy charged in Count 1.2 (JA-172a to JA-182a.)
Ralbag, who had been given immunity from the Government in exchange for his
2
Count 4 was ultimately dismissed at the end of trial (JA-155), but the jury was
instructed that it could consider testimony and evidence relating to the alleged
kidnapping of Chaimowitz as an overt act for the conspiracy charged in Count 1.
(JA-4116a; JA-4124a to JA-4125a.)
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testimony, testified that he had been contacted by a court in Israel to convene a

beth din, or rabbinical court, and take testimony from four witnesses to determine
whether the get given by Chaimowitz on August 22, 2011, was kosher or valid.
(JA-1802a to JA-1805a; JA-1848a to JA-1849a; JA-1873a; JA-1897a to JA1898a.)
According to Ralbag, those four witnesses were Jay Goldstein, Jay Goldsteins son
Avrohom Goldstein (Avrohom), co-defendant Benjamin Stimler (Stimler), and
Simcha Bulmash (Bulmash). (JA-1804a.)
The beth din, which was held on October 29 to October 30, 2011, in
Ralbags home in Brooklyn, consisted of three judges, including Ralbag, who was
the head judge or Av Beth Din. (JA-1802a; JA-1819a; JA-1834a; JA-1841a; JA1899a.) Ralbag testified that it was unusual for a beth din to be convened
following the giving of a get. He said that generally: If I see a kosher get which
has two witnesses signed on it, I would accept it, and no investigation into its
validity would be required. (JA-1850a.) However, because the Chaimowitz get
was contested after it was written, the rabbinical court in Israel asked Ralbag to do
an in-depth investigation into whether the get was kosher, meaning that the get
procedures were strictly followed. (JA-1849a to JA-1851a.) Because another
rabbinical court had previously authorized the use of force in obtaining a get from
Chaimowitz, Ralbag, as judge of the beth din, was not focused on the specifics of
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the force, such as who inflicted any force or who observed any force. Ralbag
testified that he instead focused on whether the proper procedures were followed
for obtaining a kosher get. (JA-1849a to JA-1852a; JA-1882a to JA-1885a; JA1889a to JA1890a; JA-1893a.)
Ralbag further testified at trial about the statements provided by the four
witnesses at the beth din, and those hearsay statements were admitted against the
defendants to implicate them in the alleged kidnapping of Chaimowitz. The
defendants own statements were admitted against them individually, without
objection, under the hearsay exclusion for party admissions, Fed. R. Evid.
801(d)(2)(A). However, Jay Goldstein unsuccessfully objected to the introduction
of the statements of the other three witnesses against him, which were admitted by
the District Court pursuant to the hearsay exclusion for co-conspirator statements,
Fed. R. Evid. 801(d)(2)(E) (Rule 801(d)(2)(E)). (JA-1775a; JA- 1778a to JA1787a.)
Ralbags testimony about the statements of the witnesses at the beth din was
as follows. According to Ralbag, Avrohom explained that when he and three
others, one of whom was Avrohoms brother, entered Chaimowitzs apartment to
obtain the get, they initially subdue[d] Chaimowitz and his unnamed roommate.
(JA-1806a to JA-1807a.) Ralbag further stated that Avrohom said that he and his
10
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brother, who was not a witness at the beth din, dealt with the roommate and
subdued him, tied his hands, and the other two people dealt with the husband.
Then they switched ... people whom they were subduing, and tied their hands.
(JA-1807a.) Chaimowitz and his roommate put up resistance, particularly the
roommate, but they were overpowered. (JA-1807a.) Ralbag testified that
Avrohom also said that, after Chaimowitz provided the get and the get was written,
he received a phone call from the scribe, his father Jay Goldstein, which meant
that they could leave the apartment. (JA-1829a.)
With respect to Bulmash, Ralbag testified that Bulmash told the beth din that
he and David Hellman (Hellman) were originally handling Chaimowitz but then
they switched with Avrohom and his brother to handle the roommate. (JA-1825a
to JA-1826a.) Bulmash and Hellman removed the roommate from the room where
Chaimowitz was to prevent the roommate from interfering with Chaimowitz giving
the get or from invalidating the get before it was handed over. (JA-1826a.)
Bulmash explained that he and Hellman held [the roommate] down and kept
watch over him to ensure that he did not hear the husband invalidating the get.
(JA-1813a.) Bulmash stated that the roommate was resistant, of course, and they
dealt with him, but Bulmash didnt say what exactly he and Hellman did to deal
with the roommate. (JA-1813a to JA-1814a.)
11
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Ralbag told the jury that Jay Goldstein testified before the beth din that his
role in obtaining the Chaimowitz get was [t]o ensure that the procedure, the
process of the get was valid. (JA-1814a to JA-1815a.) According to Ralbag, Jay
Goldstein mainly described the procedure for obtaining the get to the beth din, but
he supposedly informed the beth din that, initially, Chaimowitz stated that he was
willing to give the get, but then he went back and reversed himself and said No,
no, no. (JA-1817a.) Ralbag testified that he was told that Chaimowitz was dealt
with in response and threatened by the other men. (JA-1817a.) Ralbag continued,
testifying that ultimately, Chaimowitz gave the get, and that Jay Goldstein told the
beth din that he left the room and went into an adjacent place and wrote the get,
had the get signed, and gave it over. (JA-1817a; JA-1827a.) After the get was
written, Jay Goldstein did not return to the room but instead called up after the get
was written ... to say it was finished and they could go. (JA-1827a.) Ralbag
claimed that Jay Goldstein explained that he was sure that it was actually
Chaimowitz who gave the get because Rabbi Mendel Epstein, his co-defendant,
had provided him with Chaimowitzs picture. (JA-1816a.) Jay Goldstein never
testified to the beth din that Rabbi Mendel Epstein was present on August 22,
2011, when the Chaimowitz get was obtained. (JA-1899a.)
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With respect to Jay Goldsteins co-defendant Stimler, Ralbag testified that

Stimler indicated to the beth din that Chaimowitz and his roommate were bound
and that Chaimowitz initially did not want to give the get. (JA-1820a.) Stimler
explained that the husband didnt want to give the get at the outset, and he was
he wanted to be released from his bounds from his bindings, his rope and at the
end, he said the proper words. (JA-1817a.) After this, Stimler left the room to go
where the get was being written out, and Stimler signed the get as a witness. (JA1817a to JA-1819a; JA-1894a.)
District Court Ruling
Jay Goldstein objected to the admission of the co-conspirator statements,
arguing that the entirety of the hearsay statements introduced by Ralbag did not
satisfy the requirements for co-conspirator statements and that the admission of
these statements violated his Sixth Amendment right to confront the witnesses
against him. (JA-219a to JA- 228a; JA-1778a to JA-1787a.) Specifically, Jay
Goldstein argued that the Government failed to demonstrate by a preponderance of
the evidence that Avrohom and Bulmash, who had pled guilty to a Travel Act
violation based on extortion instead of kidnapping or a conspiracy to commit
kidnapping, were co-conspirators, as required by Rule 801(d)(2)(E). (JA-1778a to
JA-1781a.) Jay Goldstein further contended that the statements made by the
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alleged co-conspirators to Ralbag on October 29 and October 30, 2011, were not
made in furtherance of the alleged conspiracy as required by Rule 801(d)(2)(E)
because the object of that conspiracy, obtaining a get, was completed two months
earlier on August 22, 2011, when Chaimowitz gave the get; instead, these
statements were mere recollections of past events and they did not advance the
conspiracy in any way. (JA-1784a to JA-1787a.)
The District Court, in an oral ruling, concluded that the statements to Ralbag
satisfied the hearsay exclusion for co-conspirator statements and were therefore
admissible. (JA-1783a to JA- 1787a.) The court found that Rule 801(d)(2)(E)s
requirement that the statements in question came from a co-conspirator was
satisfied, by a preponderance of the evidence, based on the presence and arrest of
all of the beth din witnesses at the warehouse utilized in the Governments sting
operation. (JA-1783a.) The court further ruled that the in furtherance requirement
of Rule 801(d)(2)(E) was satisfied because, even though the beth din was two
months after the Chaimowitz get, it was convened to determine if the get could be
undone, and if it were undone, the object of the conspiracy was not achieved. (JA1785a to JA-1787a.)
14
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Standard of Review
This Court reviews a district courts rulings on the admissibility of
evidence for abuse of discretion. United States v. Serafini, 233 F.3d 758, 768.
n.14 (3d Cir. 2000). However, to the extent that [such] rulings were based on an
interpretation of the Federal Rules of Evidence or the other legal principles, such
as the Confrontation Clause, this Courts review is plenary. Id.; see also United
States v. Adams, 759 F.2d 1099, 1105-06 (3d Cir. 1985). With respect to a district
courts factual findings, and, in this case, that district courts conclusion that the
requirements of Rule 801(d)(2)(E) were satisfied, this Court reviews for clear
error. United States v. Turner, 718 F.3d 226, 231 (3d Cir. 2013).
A.
The hearsay statements admitted through Ralbags testimony do

not satisfy the requirements of the hearsay exclusion for coconspirator statements, and thus were inadmissible.
Pursuant to Rule 801(d)(2)(E), a statement by a partys coconspirator

during and in furtherance of the conspiracy is not hearsay when offered against
that party. For a statement to be admissible under this rule,
the Government must prove by a preponderance of the evidence that:
(1) a conspiracy existed; (2) the declarant and the party against whom
the statement is offered were members of the conspiracy; (3) the
statement was made in the course of the conspiracy; and (4) the
statement was made in furtherance of the conspiracy.
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Turner, 718 F.3d at 231. The Government failed to satisfy these requirements by a
preponderance of the evidence, and thus, Ralbag should not have been permitted to
testify to the hearsay statements.
1.

evidence that Avrohom and Bulmash were co-conspirators of
the defendants Mendel Epstein, Jay Goldstein and Binyamin
Stimler.
Ralbag testified in part to the statements of Avrohom and Bulmash, who

were not defendants in the trial below. Instead, Avrohom and Bulmash entered
guilty pleas, but had not yet been sentenced, at the time of this trial. They each
pled guilty to a Travel Act violation, based on an underlying New Jersey State law
extortion, in violation of 18 U.S.C. 1952(a)(2). Their convictions are
significantly different than and separate from the kidnapping charges against Jay
Goldstein and his co-defendants.
In connecting Avrohom and Bulmash to the alleged underlying conspiracy,
the District Court relied solely on their involvement in the sting operation and their
arrest resulting from the sting operation. (JA-1783a.) This is insufficient to
establish their involvement in the charged conspiracy to commit kidnapping by a
preponderance of the evidence. At best, this establishes that they were involved in
and present at an attempted extortion. But this in no way suggests their larger
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involvement in an alleged kidnapping conspiracy that purportedly involved

numerous kidnappings over several years. Relying on their presence at a single
event involving an extortion is insufficient to establish their status as coconspirators to a conspiracy to commit kidnappings. Thus, the District Court erred
in allowing the statements of Avrohom and Bulmash to be admitted through
Ralbags testimony.
2.

evidence that these statements, made two months after the
Chaimowitz get, were made in furtherance of the conspiracy.
The in furtherance requirement, which is broadly construed, considers

whether there was a reason, material to the conspiracy, for the listener to know the
information that was being conveyed by the co-conspirator. See United States v.
Provenzano, 620 F.2d 985, 1001 (3d Cir. 1980). While a casual conversation
between co-conspirators does not meet the in furtherance requirement,
statements between co-conspirators which provide reassurance, serve to maintain
trust and cohesiveness among them, or inform each other of the current status of
the conspiracy further the ends of the conspiracy and are admissible as long as the
other requirements of Rule 801(d)(2)(E) are met. United States v. Bobb, 471 F.3d
491, 498 (3d Cir. 2006) (internal quotation marks and citation omitted).
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Notably, a narrative description of past events, such as exists in this case, is

insufficient to meet the in furtherance requirement. Instead, [s]tatements in
furtherance of a conspiracy prompt the listener ... to respond in a way that
promotes or facilitates the carrying out of a criminal activity. United States v.
Desena, 260 F.3d 150, 158 (2d Cir. 2001). A statement that simply informs a
listener of the declarants criminal activities is not made in furtherance of the
conspiracy; instead, the statement must somehow advance the objectives of the
conspiracy. United States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994) (internal
quotation marks and citation omitted).
Here, the superseding indictment alleges that [t]he object of the conspiracy
was for defendants to obtain money and other things of value from an agunot and
their families by kidnapping the husbands of the agunot and violently coercing the
husbands to give gets to their wives and thereby consent to Jewish divorces. (JA174a.) Thus, the object of the conspiracy was met on August 22, 2011, when the
Chaimowitz get was obtained. The statements made over two months later to
Ralbag at his home did not advance the conspiracy because the object of the
conspiracy was complete. See Mitchell, 31 F.3d at 632.
Nor were the statements made in an effort to prompt Ralbag to respond a
certain way. See Desena, 260 F.3d at 158 (2d Cir. 2001). As Ralbag testified, it
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was extremely unusual to have a beth din following the giving of a get. Thus, as
far as the co-conspirators were concerned, the conspiracy was complete when
Chaimowitz gave the get, because that was the normal procedure and nothing more
was needed. (JA-1850a (Ralbag testified that when he sees a get with two witness
signatures, he accepts it, and no investigation is required.).) That Rabbi Ralbag
asked them to give statements about the forced get was of no moment to the
underlying purposes of the charged conspiracy.
B.
Jay Goldsteins rights under the Confrontation Clause were

violated by the introduction of these testimonial statements
because he was unable to cross examine the non-testifying
declarants.
The Confrontation Clause of the Sixth Amendment provides, [i]n all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him. In Crawford v. Washington, the Court explained that
testimonial hearsay ... is [the Sixth Amendments] primary object. 541 U.S. 36,
53 (2004). Where testimonial evidence is at issue, ... the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity for
cross examination. Id. at 68. The Court stated that the word [testimonial]
applies at a minimum to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations. Id. Further, while a
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statement to a law enforcement officer is more likely to be testimonial, the Court

has concluded that statements to individuals who are not law enforcement may be
testimonial depending on the circumstances in which they were made. Ohio v.
Clark, 135 S.Ct. 2173, 2182 (2015).
With respect to nontestimonial hearsay ..., the Confrontation Clause has no
role to play in determining the admissibility of the declarants statement ... [and]
admissibility is governed solely by the rules of evidence. United States v.
Berrios, 676 F.3d 118, 126-27 (3d Cir. 2012). Additionally, the Supreme Court
has stated that a statement that meets the hearsay exclusion for co-conspirator
statements is, by its very nature, nontestimonial. Crawford, 541 U.S. at 56. In this
case, however, it would be disingenuous for the Government to argue that
statements to a religious court are not testimonial.
As previously discussed, the hearsay statements admitted at trial do not
satisfy the requirements of the hearsay exclusion for co-conspirator statements.
This conclusion is further compelled by the testimonial nature of the statements at
issue. These statements were given during a beth din a prior hearing in what has
consistently been described as a court. The statements were indisputably
testimonial given the context in which they were provided. See Crawford, 541 at
68 (prior testimony at a preliminary hearing is clearly testimonial). The failure
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of these statements to satisfy the in furtherance requirement and their testimonial

nature are two sides of the same coin. The context in which they were given
renders them testimonial and not in furtherance of the conspiracy. As a result, the
admission of these testimonial hearsay statements at trial violated Jay Goldsteins
Sixth Amendment right to confront the witnesses against him.
C.
Because Ralbag did not have sufficient recollection about the

testimony from the beth din, and the contents of the document
relied upon to refresh his recollection were of questionable
origins, Ralbags testimony was unreliable and should have been
excluded.
Even if the hearsay statements admitted through Ralbags testimony satisfied

the hearsay exclusion for co-conspirator statements and the admission of those
statements did not offend the Confrontation Clause, those statements should have
been excluded because of the patent unreliability of Ralbags testimony.
According to Ralbag, he took notes during the beth din about what various
witnesses said, and after the proceedings, he compared his notes with the notes of
the other two rabbis and typed up a summary. (JA-1880a to JA-1881a.) During
his testimony at trial, Ralbag frequently referred to this summary, or asked if he
could review this summary, to refresh his recollection of who said what at the beth
din. (JA-1806a to JA-1811a; JA-1829a; JA-1835a to JA-1838a; JA-1855a toJA1856a; JA-1880a to JA-1885a.)
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There are serious questions about the extent to which Ralbag actually
remembered the testimony of the witnesses at the beth din. Based on the testimony
adduced at trial, it is unlikely that the summary truly refreshed Ralbags
recollection. Instead, it was apparent that Ralbags testimony essentially involved
him reading the summary before responding to questions posed to him on direct
and cross examination and that the Government simply asked the questions based
on this summary rather than any independent recollection.
Even more troubling, Ralbags testimony in part relied upon notes that may
not accurately reflect Ralbags independent recollection and may instead reflect the
recollections of the other two rabbis, recollections that may not have previously
matched Ralbags memory at the time. This significantly undermines the
reliability of Ralbags testimony, which is particularly problematic when his
testimony was used to introduce out-of-court hearsay statementsstatements that
the defendants were unable to challenge with effective cross examination because
the declarants did not testify.
Jay Goldstein raised issues relating to Ralbags reliability to the court prior
to trial and requested a Rule 104 hearing for these reliability issues to be explored.
(JA-1787a to JA-1792a.) The District Court denied the request, leaving Jay
Goldstein to rely solely on cross examination to explore the extent and limitations
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of Ralbags knowledge. This was insufficient to protect Jay Goldstein from the
overwhelming prejudice of Ralbags testimony, particularly where neither
Chaimowitz nor his roommate identified Jay Goldstein as one of the individuals
involved in the Chaimowitz get (and where the Government did not even call
Chaimowitz, the alleged victim, as a witness at the trial).
In sum, the admission through an unreliable witness of unreliable hearsay
statements that cannot be subjected to cross examination is precisely what the
Confrontation Clause was designed to prohibit. Even though Count 4 of the
superseding indictment, which related to the alleged kidnapping of Chaimowitz,
was dismissed at trial, Ralbags testimony was prejudicial because that kidnapping
was one of the overt acts that the jury was permitted to rely upon in reaching its
guilty verdict as to Jay Goldstein on the conspiracy count, and there was
prejudicial spillover over to the attempted kidnapping conviction. Because the
District Court erred in admitting hearsay statements of the alleged co-conspirators
through Ralbags testimony, Jay Goldsteins convictions must be reversed.
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POINT THREE
JAY GOLDSTEINS CONVICTIONS SHOULD BE REVERSED BECAUSE
THE GOVERNMENT UTILIZED CELL SITE LOCATION
INFORMATION, OBTAINED WITHOUT A WARRANT, TO CONNECT
JAY GOLDSTEIN TO THE ALLEGED KIDNAPPINGS, IN VIOLATION
OF HIS FOURTH AMENDMENT RIGHTS.
As part of the Governments case-in-chief, the Government sought to
introduce historic cell site location information (CSLI) of the defendants in an
effort demonstrate their presence and involvement in the alleged kidnappings
charged in the superseding indictment. Specifically, the Government applied for
an ex parte order under the Stored Communications Act (SCA), 18 U.S.C.
2703(d), requiring AT&T to provide CSLI information pertaining to a number of
AT&Ts cellular subscribers, including Jay Goldstein and some of his codefendants. (JA-448a to JA-463a.) A magistrate judge granted the Governments
request and issued the order on October 30, 2014. At trial, the Government
introduced the CSLI obtained pursuant to this order over Jay Goldsteins objection
through the testimony of FBI Special Agent Wendell Cosenza (Agent Cosenza),
who was accepted by the court as an expert in historic cell site and cell data
analysis. (JA-3467a to JA-3469a; JA-3477a.)
In essence, historic CSLI identifies the cell towers that cell phones interact
with when sending or receiving phone calls and texts. From this, it can be inferred
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that a given cell phone was in the vicinity of a given tower at the time it interacted
with the tower. See United States v. Graham, -- F.3d (4th Cir. 2016) (en banc)
(slip op. at 1). CSLI is only generated when a phone sends or receives calls or
texts. (JA-3498a to JA-3499a; JA-3520a.) Because the phone is designed to use
the tower providing it with the strongest signal, the tower utilized in transmitting
the signal will generally, but not always, be the tower closest to the cell phone.
(JA-3470a to JA-3471a.) A phone can only utilize one tower during call set up,
but, after setup, the phone may use multiple towers to continue the transmission of
the call. (JA-3471a to JA-3472a.) Cell phone companies keep records cell site
data regarding, inter alia, the time that a particular phone interacted with a
particular tower, whether the call or text was incoming or outgoing, and the phone
number of the sender or recipient of the call or text. (JA-3472a.) With respect to
calls, most cell service providers collect CSLI only at the time of the calls
inception and again at the time of the call was ended. (JA-3497a.) If the
beginning and end tower for a given call are not the same, this may suggest that the
phone is moving; however, it is possible for a phone to change from one tower to a
different tower nearby during a call without the phone having moved. (See JA3515a to JA-3516a; JA-3714a to JA-3715a.) Additionally, CSLI frequently
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identifies which side of a (typically) three sided tower was utilized for the call or
text in question. (JA-3478a.)
Based on the foregoing, it can be assumed that, using the CSLI, that a phone
was in a general area, and traveling in a certain direction, at a particular time. (JA3479a.) The Government often seeks to introduce this evidence in criminal matters
to place a suspect in the vicinity of a crime at the time the crime occurred by
demonstrating that the phone associated with the suspect was interacting with cell
towers near the location of the crime around the time of the crime. (JA-3474a.)
CSLI data is less precise than GPS data; it generally only indicates the
phones proximity to the tower in a general direction. (JA-3492a.) That area can
be quite broad depending on several factors, including the locality, geography, and
tower height. (JA-3710a to JA-3714.)
The District Court Ruling
Jay Goldstein timely objected to the Governments introduction of CSLI
data and testimony. He argued that, because CSLI was obtained pursuant to a
court order under 18 U.S.C. 2703(d), not a warrant supported by probable cause,
his Fourth Amendment rights were violated by the search, and the illegally
obtained CSLI cannot be admitted at trial. (JA-198a to JA-199a; JA-427a to JA447a; JA-3467a.) Further, Jay Goldstein argued that the Governments application
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for CSLI did not meet the reasonable suspicion standard of 18 U.S.C. 2703(d).
(JA-199a.) Thus, he argued that the evidence must be suppressed.
The District Court denied the motion to suppress. (JA-59a to JA-73a.) The
court reasoned that this Court had previously ruled in 2010 that CSLI is obtainable
under 18 U.S.C. 2703(d) without the traditional probable cause determination.
(JA-62a (citing In re Application of U.S., 620 F.3d 304 (3d Cir. 2010) [hereinafter
U.S. Application Third Circuit].)) The court concluded that subsequent
Supreme Court decisions did not change the legal landscape regarding social
expectations of privacy in electronic data. (JA-63a to JA-66a.) The court further
concluded that the application submitted by the Government for the CSLI records
sufficiently met the reasonable suspicion standard of 18 U.S.C. 2703(d). (JA-69a
to JA-70a.) Alternatively, the court reasoned that even if 18 U.S.C. 2703(d) were
unconstitutional, the CSLI was still admissible under the good-faith exception to
the warrant requirement based on the Governments reasonable reliance on the
constitutionality of 18 U.S.C. 2703(d). (JA-70a to JA-73a.)
The CSLI Evidence at Trial
At trial, the Government introduced historic CSLI data for a cell phone
number associated with Jay Goldstein for various dates around the times of the
alleged kidnappings charged in the superseding indictment. (See, e.g., JA-3484a to
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JA-3485a.) The superseding indictment identified three alleged kidnappings and

one alleged attempted kidnapping, both as independent charges and as overt acts
underlying the conspiracy. (JA-172a to JA-188a.) The attempted kidnapping
charge related to the Governments sting operation, which resulted in several of the
defendants arrests, including Jay Goldstein, on October 9, 2013, at a warehouse in
Edison, New Jersey. (JA-176a to JA-182a; JA-186a.) The three alleged
kidnappings charged in the superseding indictment were: (1) Israel Markowitz on
December 1, 2009, in Lakewood, New Jersey; (2) Yisrael Bryskman on October
17, 2010, in Lakewood, New Jersey; and (3) Usher Chaimowitz on August 22,
2011, in Brooklyn, New York. (JA-175a to JA176a; JA-183a to JA-185a.)3 In an
effort to prove Jay Goldsteins presence and involvement in the alleged
kidnappings, the Government introduced CSLI data and Agent Cosenzas
testimony about that data for the phone associated with Jay Goldstein to show that,
prior to the kidnappings, the phone was interacting with towers consistent with
travel from Jay Goldsteins home in Brooklyn to the locations of the kidnappings
and that, during the time of the kidnappings, the phone was interacting with cell
Jay Goldstein was charged in all counts of the superseding indictment with the
exception of Count 2 relating to the alleged kidnapping of Israel Markowitz. (JA172a to JA-188a.) Count 4 was dismissed during the trial. (JA-155.)
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towers in the neighborhood of the alleged kidnappings. (JA-3496a to JA-34897a;

JA-3514a to JA-3525a.)
Standard of Review
Jay Goldstein appeals the denial of his motion to suppress the CSLI obtained
pursuant to a court order under 18 U.S.C. 2703(d) instead of a warrant supported
by probable cause. When reviewing the denial of a motion to suppress, this Court
review[s] the District Courts legal conclusions de novo and the underlying
factual findings for clear error. United States v. Vasquez-Algarin, 821 F.3d 467,
471 (3d Cir. 2016). This appeal also inherently challenges the constitutionality of
18 U.S.C. 2703(d), which purports to allow the Government to obtain CSLI on
something less than probable cause. This Court reviews challenges to the
constitutionality of a statute under a de novo standard of review. United States v.
Fullmer, 584 F.3d 132, 151 (3d Cir. 2009).
A.
The Governments failure to obtain a warrant on probable cause

before collecting historic CSLI from Jay Goldsteins cellular
provider violated the Fourth Amendment.
The Fourth Amendment provides in relevant part that [t]he right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated. A search, for Fourth
Amendment purposes, occurs when government action invades an individuals
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justifiable, reasonable, or legitimate expectation of privacy. Smith v.

Maryland, 442 U.S. 735, 741 (1979). As explained in Justice Harlans
concurrence in Katz v. United States, 389 U.S. 347 (1967), this inquiry of whether
government action constitutes a search embraces two questions: first, whether the
individual, by his conduct, has exhibited an actual (subjective) expectation of
privacy; and second, whether the individuals subjective expectation of privacy
is one that society is prepared to recognize as reasonable. Smith, 442 U.S. at
740 (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). A warrantless search
is reasonable, under the Fourth Amendment, only if it falls within a specific
exception to the warrant requirement. Riley v. California, 134 S.Ct. 2473, 2482
(2014).
When, without a warrant, the government utilizes technology that is not in
general public use to uncover facts in which individuals have a reasonable
expectation of privacy, even in the absence of a physical intrusion, the search
violates the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27, 40
(2001). Here, the Government utilized technology that is not in general public use
to uncover information about Jay Goldsteins whereabouts on various dates and
times, information in which Jay Goldstein had a justifiable, reasonable expectation
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of privacy. This constituted a search, and, in the absence of a warrant based on

probable cause, this search was unreasonable.
1.
The Government obtained CSLI for the cell phone associated

with Jay Goldstein without a warrant, without demonstrating
probable cause, and without demonstrating reasonable
suspicion.
Under the SCA, a government entity can obtain CSLI and other information
from a cellular provider about a subscriber by obtaining, inter alia, a warrant
supported by probable cause, a court order under 18 U.S.C. 2703(d), or consent
of the subscriber. 18 U.S.C. 2703(c)(1). Pursuant to 18 U.S.C. 2703(d), a
court may issue such an order if the governmental entity offers specific and
articulable facts showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication ... are relevant and material to an
ongoing criminal investigation. This specific and articulable facts standard is
less stringent than the Fourth Amendment probable cause standard and thus
requires a lesser showing than is necessary for obtaining a warrant. U.S.
Application Third Circuit, 620 F.3d at 314-15.
In this case, the Government never submitted a search warrant to a neutral
and detached magistrate demonstrating probable cause. Instead, the Government
presented an application pursuant to the SCA, 18 U.S.C. 2703(c)(1) and (d), for
an order requiring AT&T to produce subscriber information, including CSLI, for
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the cell phone associated with Jay Goldstein and others for five time periods:
November 1, 2009 to December 3, 2009; October 15, 2010 to October 20, 2010;
August 19, 2011 to August 24, 2011; July 26, 2012 to July 31, 2012; and October
5, 2013 to October 10, 2013. (JA-448a to JA-459a.) That order was granted on
October 30, 2014. (JA-461a to JA-463a.)
While the Government has never contended that it established probable
cause in its application, the application falls far short of the reasonable suspicion
standard, let alone the probable cause standard. The application recites the cell
phone number associated with Jay Goldstein, discusses the circumstances
surrounding the alleged kidnappings, and asserts that the items requested will help
the United States identify the location of the alleged participants in the scheme
during the time periods when the alleged kidnappings and attempted kidnappings
occurred. (JA-450A to JA-456a.) However, the application is grossly deficient
because it provides no basis for the Governments belief that Jay Goldstein is the
actual user of that phone as opposed to another family member or a third party, or
that the phone records and CSLI for that phone would contain information relevant
to a criminal investigation. At a minimum, reasonable suspicion requires the
Government explain its basis for connecting Jay Goldstein to the cell phone
number in question, both as the subscriber and the actual user. Moreover, the
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Government failed to explain the basis of its belief that the cell phone would have
been on Jay Goldsteins person at the time of any of the alleged kidnappings in
question. The applications conclusory assertion that there are reasonable
grounds to believe that the records and other information described [therein] are
relevant and material to an ongoing criminal investigation (JA-456a), falls far
short of 2703(d)s requirement that the Government provide specific and
articulable facts to support the order for CSLI.
2.
Because Jay Goldstein maintained a reasonable expectation of

privacy in his whereabouts and movements over an extended
period of time, the Governments collection of CSLI constituted
a search.
There is no dispute that the Government obtained the CSLI without meeting
the Fourth Amendments probable cause standard. Even if the Governments
application satisfied the reasonable suspicion standard, this simply means that the
Government complied with the SCA, which is altogether different than satisfying
the demands of the Fourth Amendment. Because the Government obtained the
CSLI, which intruded upon Jay Goldsteins reasonable and legitimate expectation
of privacy in constitutionally protected zones, the Government ran afoul of the
Fourth Amendment when it collected this data without a warrant.
CSLI provides the Government with details about an individuals
movements and whereabouts inside constitutionally protected spaces. Specifically,
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the CSLI allowed the Government to determine whether or not the phone
associated with Jay Goldstein, and thereby impliedly Jay Goldstein, was present in
a given location, including his home. While CSLI is indisputably less accurate (at
this point in its development) than GPS technology, this Court has acknowledged
that CSLI can be useful in establishing an individuals historical whereabouts at a
given point in time. This Court stated, CSLI could provide information tending to
show that the cell phone user is generally at home from 7 p.m. until 7 a.m. the next
morning, and, using this information, the Government may argue in a future case
that the jury can infer that the cell phone user was at home at the time and date in
question. U.S. Application Third Circuit, 620 F.3d at 311. And, unlike
eyewitness observation or surveillance, CSLI allows the Government to recreate a
suspects movements retroactively and draw inferences about the suspect from the
aggregation of that data. This aggregation of historic location information over a
long period of time violates an individuals reasonable expectations of privacy.
See United States v. Jones, 132 S.Ct. 945, 956 (2012) (Sotomayor, J., concurring)
(I would ask whether people reasonably expect their movements will be recorded
and aggregated in a manner that enables the Government to ascertain, more or less
at will, their political and religious beliefs, sexual habits, and so on.).
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The information discerned from CSLI would previously have been

unknowable without physical intrusion. Kyllo, 533 U.S. at 40; see also United
States v. Karo, 468 U.S. 705, 715 (1984) (The monitoring of an electronic device
such as a beeper is, of course, less intrusive than a full-scale search, but it does
reveal a critical fact about the interior of the premises that the Government is
extremely interested in knowing and that it could not have otherwise obtained
without a warrant.). The Government is not free from the constraints of the
Fourth Amendment to determine, by means of an electronic device, without a
warrant and without probable cause or reasonable suspicion, whether a particular
articleor a person, for that matteris in an individuals home at a particular
time. Karo, 468 U.S. at 716.
3.
Recent Supreme Court jurisprudence on reasonable

expectations of privacy in the digital age undermines the
decisions that uphold the Governments collection of CSLI in
the absence of a warrant.
We acknowledge that every Court of Appeals, including this Court, to

consider the issue of obtaining CSLI data on less than probable cause has thus far
ultimately upheld the constitutionality of the SCA and the Governments collection
of the CSLI data. See United States v. Graham, -- F.3d -- (4th Cir. 2016) (en
banc); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016); United States v.
Davis, 785 F.3d 498 (11th Cir.) (en banc), cert. denied, 136 S.Ct. 479 (2015); In re
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Application of the U.S., 724 F.3d 600 (5th Cir. 2013) [hereinafter U.S. Application
Fifth Circuit]; U.S. Application Third Circuit, 620 F.3d at 312-13. However,
this Court is not bound by the decisions of the other circuits, and, with respect to
this Courts decision from 2010, the legal landscape has since changed
dramatically.
This Court in 2010 ruled that the Government could obtain CSLI pursuant to
a court order under 2703(d) by demonstrating reasonable suspicion instead of
probable cause without running afoul of the Fourth Amendment. U.S. Application
Third Circuit, 620 F.3d at 312-13. This Court further ruled that a magistrate, in
appropriate circumstances, could require the Government to meet the higher
probable cause standard and seek a warrant rather than an order under 2703(d).
Id. at 315-17. This Court relied on the Supreme Courts decisions in Karo and
Knotts, which considered warrantless installation of tracking devices inside
chemical drums. Id. at 312 (citing Karo, 468 U.S. 705; United States v. Knotts,
460 U.S. 276 (1983)). The Court found no Fourth Amendment violation in Knotts,
where the tracking device was used to follow the movements of the drum on public
highways. Id. (citing Knotts, 460 U.S. 276). However, in Karo, the Court ruled
that the Government violated the Fourth Amendment when it used the tracking
device to ascertain the presence of the drum in a residence. Id. (citing Karo, 468
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U.S. 705). Based on these precedents, this Court concluded that, while CSLI may
be used to approximate an individuals past and present locations, the privacy
interests at issue are confined to the interior of the home, and there is no evidence
that CSLI extends to that realm. Id. at 312-13. Notably, this Court
acknowledged that [a] cell phone customer has not voluntarily shared his
location information with a cellular provider in any meaningful way and that it is
unlikely that cell phone customers are aware that their cell phone providers collect
and store historical location information. Id. at 317.
The Courts rationale in 2010 that CSLI does not reveal information about
the interior of the home has been largely debunked. Indeed, in this case, Agent
Cosenza, looking at the aggregate CSLI for the phone associated with Jay
Goldstein, opined that Jay Goldstein (or the phone associated with Jay Goldstein at
least) was home at certain periods of time. (JA-3496a to JA-3499a.) In that
manner, CSLI records at issue here resemble the tracking information from the
chemical drum in Karo. As in Karo, where the Government learned that the
chemical drum was inside a residence based on the tracking device previously
attached to the drum, the Government in this case was able to utilize CSLI to
determine when Jay Goldstein (or at least the phone associated with Jay Goldstein)
was present in Jay Goldsteins home.
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Moreover, since this Courts decision in 2010, two Supreme Court rulings
have significantly changed the legal landscape with regard to shifting expectations
of privacy in an increasingly digital world. Most recently, in Riley v. California,
the Supreme Court ruled that, before the Government could search the contents of
a cell phone found on an arrestee as a search incident to arrest, the Government
must obtain a warrant. 134 S.Ct. at 2485. The Court reasoned that the risks
inherent in custodial arrests underlying the warrant exception for a search incident
to arrestharm to the officers and destruction of evidenceare not comparable
when the search is of digital data. Id. at 2484-85. Notably, the Court discussed
the degree of mundane to intimate details that may be discerned from an
individuals cell phone. The Court stated, Data on a cell phone can also reveal
where a person has been. Historic location information is a standard feature on
many smart phones and can reconstruct someones specific movements down to
the minute, not only around town but within a particular building. Id. at 2490.
Even more significant is the Supreme Courts 2012 decision in United States
v. Jones. In Jones, the Court ruled that the Government violated the Fourth
Amendment when it installed a GPS tracking device on the undercarriage of a
suspects car while parked in a public lot and used that device to monitor the
vehicles location. 132 S.Ct. at 949. The Justices were unanimous in their
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conclusion that this action violated the Fourth Amendment. Their reasoning
varied. The lead opinion for five justices, written by Justice Scalia, relied on the
trespass theory instead of the Katz reasonable expectation of privacy approach.
See id. at 952. Specifically, the act of attaching the device to the suspects vehicle
physically encroached on a protected area and thus was a search. Id. The Court
stated that [s]ituations involving merely the transmission of electronic signals
without trespass would remain subject to Katz analysis. Id. at 953. The Court
expressly left open the question presented in the instant appeal, and stated, It may
be that achieving the same result through electronic means, without an
accompanying trespass, is an unconstitutional invasion of privacy, but the present
case does not require us to answer that question. Id. at 954.
However, five justices opted to consider and discuss that question. Justice
Sotomayor joined Justice Scalias majority opinion but wrote separately to raise
concerns about the impact of nontrespassory surveillance techniques on the Katz
reasonable expectation of privacy test. She explained that GPS monitoring
generates a precise, comprehensive record of a persons public movements that
reflects a wealth of detail about her familial, political, professional, religious, and
sexual associations. Id. at 955 (Sotomayor, J., concurring). She went on to ask
whether people reasonably expect that their movements will be recorded and
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aggregated in a manner that enables the Government to ascertain, more or less at

will, their political and religious believes, sexual habits, and so on. Id. at 956.
Justice Sotomayor elaborated that, given the amount of information disclosed to
third parties in the digital age in connection with mundane tasks, it may be
necessary to reconsider the premise that an individual has no reasonable
expectation of privacy in information voluntarily disclosed to third parties. Id. at
957. She stated that she would not assume that all information voluntarily
disclosed to some member of the public for a limited purpose is, for that reason
alone, disentitled to Fourth Amendment protection. Id.
Similarly, Justice Alito, joined by three justices, concurred in Jones, but
reached the result under the Katz reasonable expectation of privacy theory instead
of relying on common-law trespass principles. Id. at 958 (Alito, J., concurring).
Justice Alito discussed how developments in technology may shape a persons
expectations of privacy about his or her daily comings and goings. Id. at 963. He
concluded that the extended GPS monitoring of Jones impinged on reasonable
expectations of privacy. Id. at 964.
The concurrences in Jones are significant because they reveal that a majority
of the Court has expressed beliefs that people still maintain a reasonable
expectation of privacy in their movements even in a digital age. Justice Sotomayor
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specifically questioned the viability of the third-party doctrine as described in

Smith v. Maryland in 1979. Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring).
Yet, the Courts of Appeals to rule on the issue of the Governments obtaining
CSLI data without a warrant have heavily relied on the third-party doctrine as
described in Smith. See Graham, slip op. at 3-8; Carpenter, 819 F.3d at 887-89;
Davis, 785 F.3d at 511-13; U.S. Application Fifth Circuit, 724 F.3d at 610-15.
In Smith, the Court ruled that the Government did not violate the Fourth
Amendment when it requested that a telephone company install a pen register at its
central offices to record the numbers dialed from a suspects home phone. 442
U.S. at 745-46. The Court concluded that this was not a search because people do
not have a reasonable expectation of privacy in the numbers they dial, particularly
because this information is voluntarily conveyed to third parties, namely telephone
companies. Id. at 742-44.
In reliance on Smith, the courts have reasoned that CSLI is a business record
of the cell phone companies that is automatically generated whenever a cell phone
user sent or received a call or text, and thus, the defendants exposed the CSLI to a
third party and assumed the risk. See Graham, slip op. at 4; Carpenter, 819 F.3d at
887-88; Davis, 785 F.3d at 511; U.S. Application Fifth Circuit, 724 F.3d at 61112. They reason that the cell phone user has voluntarily conveyed this information
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to his cell phone provider because the user understands that importance of signal
strength and the need to connect to a nearby tower to complete his or her call or
text. See Graham, slip op. at 5; Carpenter, 819 F.3d at 888; Davis, 785 F.3d at
511; U.S. Application Fifth Circuit, 724 F.3d at 613. These underpinnings must
be questioned.
This Court has already acknowledged that any claim that this information is
transmitted voluntarily is not meaningful. U.S. Application Third Circuit, 620
F.3d at 317 ([I]t is unlikely that cell phone customers are aware that their cell
phone providers collect and store historical location information.). That a cell
phone user appreciates that proximity to a cell tower is important to the ability to
make or receive calls or texts in no way suggests that a user appreciates that
information about which towers were used is conveyed to the cell phone company
and stored for later use. A cell user may believe that connecting to a tower is an
automated process, like a motion sensor activating a door. To suggest that a user is
aware that that the connectivity is being recorded does not comport with reality.
Furthermore, the CSLI at issue here is distinguishable from the pen register
data at issue in Smith. Smith specifically relied upon the presence of the numbers
dialed on a subscribers telephone bill as a basis for concluding that the disclosure
to a third party was knowing and voluntarily. Smith, 442 U.S. at 742. The same
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cannot be said of CSLI. No ones monthly cell phone bill contains a listing of the
towers and locations in which the cell phone was used. Graham, slip op. at 18
(Wynn, J., dissenting) (Nor does CSLI subsequently appear on a cell phone
customers statement, as the relevant information did for ... the phone call in
Smith.).
Additionally, in contrast to the numbers affirmatively dialed by the suspect
in Smith, CSLIs creation does not depend on any affirmative action by the cell
phone user. [C]ell phone users do not affirmatively enter their location data in
order to make a call. Davis, 785 F.3d at 534 (Martin, J., dissenting). Moreover,
CSLI is generated when a user receives a call or text, which requires absolutely no
action on the part of the user. Graham, slip op. at 16, 19 (Wynn, J., dissenting)
(distinguishing CSLI from the pen register data in Smith because Smith knew the
numbers he was dialing and from the bank records in United States v. Miller, 425
U.S. 435 (1976) because Miller knew the amount of money he was depositing with
the bank); Davis, 785 F.3d at 534, 542 (Martin, J., dissenting) ([S]ince a text or
call could come in at any secondwithout any affirmative act by a cell phone
usera user has no control over the extent of the location information she
reveals.). Thus, the notion that CSLI is voluntarily disclosed to a third party does
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not jibe with the reality of how CSLI is generated without any action by the cell
phones user.
Aside from concerns that the disclosure of CSLI was voluntary in any
meaningful sense, the notion of voluntary disclosure to a third-party cannot be the
touchstone for reasonable expectations of privacy in a digital age. The concurring
and dissenting decisions in the CSLI decisions of the other Courts of Appeals have
rightfully recognized the concerns espoused in Jones as being determinative with
respect to CSLI data. See Carpenter, 819 F.3d at 895-96 (Stranch, J., concurring)
(upholding the search under the good-faith exception, but expressing concerns that
the third-party doctrine does not address the issue of the governments
comprehensive tracking of an individual using CSLI data without a warrant);
Davis, 785 F.3d at 538 (Martin, J., dissenting) (Given the extraordinary
technological advances, I believe the Supreme Court requires us to critically
evaluate how far to extend the third-party doctrine.); U.S. Application Fifth
Circuit, 724 F.3d at 623-24, 630 (Dennis, J., dissenting) (comparing similarities
between CSLI and GPS tracking and explaining that Jones concurrences and the
Third Circuits reasoning that disclosure of CSLI is not voluntary illustrate the
uncertain Fourth Amendment terrain in the CSLI context).
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Technology continues to evolve, but our expectations of privacy are not

altered because of these developments. See Davis, 785 F.3d at 524, 532-33
(Rosenbaum, J., concurring) ([O]ur historical expectations of privacy do not
change or somehow weaken simply because we now happen to use modern
technology to engage in activities in which we have historically maintained
protected privacy interests.). It is not reasonable to conclude that people
surrender their expectations of privacy simply by participating in a digital society,
particularly where the types of information sought are disclosed to a third party
only for a very limited purpose. See Jones, 132 S.Ct. at 957 (Sotomayor, J.,
concurring) (I would not assume that all information voluntarily disclosed to
some member of the public for a limited purpose is, for that reason alone,
disentitled to Fourth Amendment protection.); Davis, 785 F.3d at 533 (Martin, J.,
dissenting) (The judiciary must not allow the ubiquity of technologywhich
threatens to cause greater and greater intrusions into our private livesto erode
our constitutional protections.).
Eventually, car manufacturers may incorporate automatic GPS location
services into a cars design, which would generate location data to be stored by the
manufacturer for future use in locating the car. Under the approach of the Courts
of Appeals to consider this issue, the Government could obtain this location data
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about the historical whereabouts of a car without a warrant or probable cause

simply because the Government could get this information from a third party. This
would be a completely different result from Jones, but the only meaningful
difference between Jones and these circumstances is who was responsible for
installing the tracking device. See Carpenter, 819 F.3d at 888 (Whether a
defendant had a legitimate expectation of privacy in certain information depends in
part on what the government did to get it.); U.S. Application Fifth Circuit, 724
F.3d at 610 (The question of who is recording an individuals information is
key.). Whether a tracking device is installed by the Government or a third party
does not influence an individuals expectations of privacy in his or her
whereabouts, yet, under the District Courts approach, it is determinative for
Fourth Amendment purposes. This approach incentivizes the Government to coopt a third party to do what it cannot do itself. Reasonableness is the touchstone
under the Fourth Amendment, and drawing the lines of expectation privacy in
accordance with the third-party doctrine is not reasonable is this digital age.4
The lack of precision of CSLI data in comparison to GPS tracking information is

not a justification for the incongruent results in this case and in Jones because
CSLI is becoming increasing more precise. See Davis, 785 F.3d at 541 (Martin, J.,
dissenting). (As technology advances, the specificity of cell site location
information has increased. Cell phone companies are constantly upgrading their
networks with more and more towers.).
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A warrant requirement for CSLI would not interfere with

effective law enforcement investigations.
It bears noting that requiring law enforcement to get a warrant before

obtaining CSLI data would hardly shackle the governments criminal investigatory
abilities. Historic CSLI is created, stored, and maintained by a third party, out of
reach of a suspects ability to destroy or alter it. CSLI is not the type of
information which would spoil or perish during the short time it takes to get a
warrant. Davis, 785 F.3d at 543 (Martin, J., dissenting). Additionally, the
Government has the ability pursuant to 18 U.S.C. 2703(f) to require that a mobile
telephone company or communication service provider preserve evidence until it
has the opportunity to seek a warrant or other court order. To the extent the
Government has a legitimate, particularized concern about the spoliation of CSLI,
the Government may still rely on the well-established exceptions to the warrant
requirement, including exigent circumstances.
For these reasons, this Court should reverse Jay Goldsteins convictions and
hold that the CSLI information obtained by the Government without a warrant
offends the Fourth Amendment and merits suppression of the CSLI data.
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The Government cannot rely on the good-faith exception to the

warrant requirement to excuse the illegal collection of Jay
Goldsteins CSLI without a warrant.
If this Court concludes that the CSLI was obtained in violation of the Fourth
Amendment, the Government cannot rely on the good-faith exception to the
warrant requirement to support the admission of the CSLI evidence. Pursuant to
the good-faith exception, courts will decline to suppress evidence obtained by an
officer acting in objectively reasonable reliance on a statute ... [u]nless a statute is
clearly unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50 (1987).
Exclusion is still warranted if: in passing the statute, the legislature wholly
abandoned its responsibility to enact constitutional laws or if the statutes
provisions are such that a reasonable officer should have known that the statute
was unconstitutional. Id. at 355.
The Government could not have reasonably relied on the constitutionality of
18 U.S.C. 2703(c)(1) and (d). As an initial matter, the statute purports to allow
the Government to obtain CSLI either pursuant to a warrant supported by probable
cause or by a court order supported by reasonable suspicion. The statute endows
law enforcement with unbridled discretion and provides no guidance on when one
mechanism should be preferred over another. See U.S. Application Fifth Circuit,
724 F.3d at 618 (Dennis, J., dissenting). In the absence of such guidance and in
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light of the resulting inherent ambiguity, the authorization to obtain CSLI on less
than probable cause cannot reasonably be relied upon.
Moreover, at the time the order was obtained on October 30, 2014, the cases
were far from conclusive that this approach was constitutional. At that time, the
Fourth and Sixth Circuit had not decided their 2016 decisions in Graham and
Carpenter respectively. And, at that time, the Eleventh Circuits precedential
opinion on the issue, dated July 19, 2014, held that obtaining CSLI without a
warrant supported by probable cause violated the Fourth Amendment. United
States v. Davis, 754 F.3d 1205, 1217 (11th Cir. 2014). That opinion was vacated
and the matter set for rehearing en banc on September 4, 2014, United States v.
Davis, 573 Fed. Appx 925 (11th Cir. 2014), but the ultimate Eleventh Circuit
decision upholding the constitutionality of CSLI obtained on less than probable
cause was not issued until May 5, 2015. Davis, 785 F.3d 498. Thus, at the time
the Government sought the order in this case, one circuit had ruled against the
constitutionality of the procedure.
Furthermore, while this Court had upheld the SCA and the Governments
ability to obtain CSLI on less than probable cause, U.S. Application Third
Circuit, 620 F.3d 304, that decision was issued two years before the Courts
decision in Jones and four years before the Courts decision in Riley. Those cases
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substantially changed the legal landscape with respect to reasonable expectations

of privacy in the digital age. Additionally, the Third Circuit decision was not
entirely a win for the Government. This Court determined that a cell phone user
could not be said to have voluntarily disclosed the CSLI information to a third
party in any meaningful way. Id. at 317. The Court also curbed the Governments
unilateral decision making authority under the statute and ruled that magistrates
have discretion to require the Government to seek a warrant supported by probable
cause instead of resorting to a court order supported by reasonable suspicion. Id. at
319.
Thus, at the time the Government sought the order in this case, only two
circuit decisions supported its approach of obtaining CSLI on less than probable
cause, U.S. Application Fifth Circuit and the U.S. Application Third Circuit,
which had been undermined by subsequent Supreme Court jurisprudence. The
Eleventh Circuit had ruled against the Government, and that decision, though
vacated, was being reviewed en banc. While several district courts had upheld the
warrantless procedure, several others had ruled that a warrant is required for CSLI
data. See, e.g., In re Application of the U.S., No. 11-0113, 2011 WL 679925
(E.D.N.Y. Feb. 16, 2011); In re Application of the U.S., 727 F. Supp. 2d 571, 584
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(W.D. Tex. 2010). Therefore, at a minimum, the Government was on notice that
the constitutionality of 2703 was being heavily scrutinized by the courts.
For these reasons, the Government could not reasonably rely on the
constitutionality of 2703 and the ability to obtain CSLI on less than probable
cause. As a result, the Government is not entitled to reliance on the good-faith
exception, and the CSLI should have been suppressed. And, even if the statute
were constitutional, the Governments application falls woefully short of the
reasonable suspicion standard. Either way, the District Court erred when it
permitted the Government to admit CSLI.
Despite the fact that the CSLI was introduced to connect Jay Goldstein to the
alleged kidnappings and Jay Goldstein was acquitted on all the underlying
kidnapping counts, the admission of the CSLI was prejudicial because the
underlying kidnappings were part of the overt acts for the alleged conspiracy for
which Jay Goldstein was convicted, and there was prejudicial spillover to the
attempted kidnapping conviction. Therefore, Jay Goldsteins convictions must be
reversed.
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POINT FOUR
THE DISTRICT COURT IMPROPERLY DENIED DEFENDANTS THE
RIGHT TO PRESENT A DEFENSE TO THE KIDNAPPING AND
CONSPIRACY CHARGES BY PROHIBITING DEFENDANTS FROM
PRESENTING EVIDENCE OR ARGUMENT AS TO THEIR BELIEFS
ABOUT ORTHODOX JEWISH DIVORCE LAW TO NEGATE THE
ELEMENTS OF SPECIFIC INTENT AND PURPOSE.
forth in the opening brief of Appellant Mendel Epstein in No. 15-4095.
POINT FIVE
THE DEFENDANTS CONVICTIONS VIOLATE THE RELIGIOUS
FREEDOM RESTORATION ACT BECAUSE THE DEFENDANTS
ACTIONS WERE MOTIVATED EXCLUSIVELY TO ENGAGE IN THE
FREE EXERCISE OF RELIGION.
forth in the opening brief of Appellant Binyamin Stimler in No. 15-4053.
POINT SIX
THE DISTRICT COURTS RESPONSE TO A JURY QUESTION
PREJUDICED DEFENDANTS BECAUSE IT ERRONEOUSLY
SUGGESTED TO THE JURY THAT A DEFENDANT COULD BE FOUND
GUILTY OF CONSPIRACY TO KIDNAP OR ATTEMPTED KIDNAPPING
MERELY FOR FAILURE TO INTERVENE TO PREVENT THE
KIDNAPPING.
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POINT SEVEN
THE GOVERNMENTS STING OPERATION WAS
UNCONSTITUTIONALLY OUTRAGEOUS AND VIOLATED DUE
PROCESS STANDARDS.
CONCLUSION
The judgment of conviction against Jay Goldstein on Counts 1 and 5 should
be reversed with instructions to enter a judgment of acquittal.
Respectfully submitted,
Dated: August 5, 2016
s/ Aidan P. OConnor
AIDAN P. OCONNOR, ESQ.
PASHMAN STEIN WALDER HAYDEN, P.C.
21 MAIN STREET, SUITE 200
HACKENSACK, NEW JERSEY 07601
(201) 488-8200
Attorneys for Defendant-Appellant
Jay Goldstein
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COMBINED CERTIFICATION
I, Aidan P. OConnor, whose name appears on the forgoing Brief for the
Appellant Jay Goldstein, certifies as follows:
Certification of Admission-Bar Membership
I am admitted to practice before the United States Court of Appeals for the
Third Circuit and am a member in good standing.
Certification of Compliance with Federal Rule of Appellate Procedure 32(a)
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(b) because this brief contains 11,443 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2010 in 14 point Times New Roman font.
Certification of Service upon the Court and Counsel
I have filed and served the Brief for the Appellant Jay Goldstein upon all
counsel by CM/ECF.
I will send seven hard copies of the Brief for the Jay Goldstein by UPS to
the Office of the Clerk within five days of electronically filing.
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Certification of Identical Compliance and Virus Check Pursuant to Rule 31.1

The text of the brief filed electronically on August 5, 2016, and the text of
the hard copies sent to the Office of the Court Clerk are identical.
The electronic version of this brief was scanned using Malwarebytes AntiMaleware Software version 2.2.1.1043 (updated August 5, 2016) and no viruses
were detected.
s/ Aidan P. OConnor
55

Jay Goldstein Appeal August 2016

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Case: 15-4095

Date Filed: 08/05/2016

Nos. 15-4053, 15-4094, 15-4095

United States Court of Appeals

BRIEF FOR APPELLANT JAY GOLDSTEIN

Date Filed: 08/05/2016

The hearsay statements admitted through Ralbags testimony

The Government failed to establish by a preponderance of the

Date Filed: 08/05/2016

the defendants Mendel Epstein, Jay Goldstein and Binyamin

The Government failed to establish by a preponderance of the

Jay Goldsteins rights under the Confrontation Clause were

Because Ralbag did not have sufficient recollection about the

The Governments failure to obtain a warrant on probable cause

The Government obtained CSLI for the cell phone

Date Filed: 08/05/2016

associated with Jay Goldstein without a warrant, without

Because Jay Goldstein maintained a reasonable expectation

Recent Supreme Court jurisprudence on reasonable

A warrant requirement for CSLI would not interfere

The Government cannot rely on the good-faith exception to the

Date Filed: 08/05/2016

THE DISTRICT COURTS RESPONSE TO A JURY QUESTION

Date Filed: 08/05/2016

Date Filed: 08/05/2016

United States v. Adams,

Date Filed: 08/05/2016

United States v. Provenzano,

18 U.S.C. 1201 ....................................................................................................... 3

Fed. R. App. P. 28(i) ..................................................................................... 8, 52, 53

Date Filed: 08/05/2016

Jay Goldstein was sentenced on December 16, 2015, to 96 months imprisonment

Whether the District Courts jury instructions regarding the elements of

the superseding indictment?

JA refers to the Defendants-Appellants Joint Appendix.

Date Filed: 08/05/2016

Whether the out-of-court statements of the beth din witnesses to Rabbi

Whether Jay Goldsteins Fourth Amendment rights were violated by the

introduction of the cell site location information obtained pursuant to a court

Whether the District Court erred in prohibiting the defendants from

Whether the prosecution and convictions of the defendants for their

Whether the District Courts improper response to a jury question prejudiced

the defendants because it erroneously suggested that a defendant could be

Date Filed: 08/05/2016

Whether the Governments sting operation was unconstitutionally

kidnapping and attempted kidnapping. Jay Goldstein appeals his convictions

Date Filed: 08/05/2016

substantive kidnapping alleged in Count 2. Count 4 was dismissed at trial on the

imprisonment on Count 1 and on Count 5, to be served concurrently. (JA-108a

Date Filed: 08/05/2016

Date Filed: 08/05/2016

kidnapping or conspiracy charges at issue. Moreover, these statements were

Date Filed: 08/05/2016

Government obtained an order under 18 U.S.C. 2703(d), which allows a court to

Date Filed: 08/05/2016

Date Filed: 08/05/2016

testimony, testified that he had been contacted by a court in Israel to convene a

Date Filed: 08/05/2016

Date Filed: 08/05/2016

Date Filed: 08/05/2016

Date Filed: 08/05/2016

With respect to Jay Goldsteins co-defendant Stimler, Ralbag testified that

Date Filed: 08/05/2016

Date Filed: 08/05/2016