Wednesday, August 02, 2017

Government does not need warrant for cell tower information when complying with statutes allowing for court orders to cell phone companies for location information/ Religious Freedom Restoration Act cannot be used to violent crimes

USA v. Stimler, et al., No . 15-4053, 4094 and 4095 (3d Cir, 7/7/17)

The defendants were all Orthodox rabbis convicted of attempted kidnapping and conspiracy for a scheme of kidnapping and torturing Jewish men to convince them grant their wives  divorces under Jewish law. The panel opinion, in a Hebrew and Yiddish laden explication, described the ritual practices the Defendants believed Jewish law required or entitled them to  engaged in. “Observant” Jews (anyone familiar with the politics of Israel these past few months will understand the quotation marks) adhere to a doctrine that a wife cannot divorce her husband without his permission, not matter what the cause of her desire to leave the marriage. A rabbinical court can order Jewish men to give consent, but if the husband refuses, the court, outside of Israel where such courts have the power to order recalcitrant men jailed for failing to give consent, it is considered a mitzvah to get such a man to give consent, and the Defendants herein hired themselves out to perform such mitzvahs. Gey vays.

Learning of the scheme, the an FBI agent posing as a Jewish woman deprived  a Jewish  divorce for lack of her husband’s consent, met with one of the defendants who promised her “what we’re doing is basically gonna be kidnapping a guy for a couple of hours and beatin’ him up and torturing him . . ..”   Two of the defendants convened their court with a third rabbi and issued a judgment authorizing the use of force to gain consent. One of the defendants with the FBI agent then planned the kidnapping, and at the time and place of the planned kidnapping one of the court members and a third defendant met to surveil the area where it would occur. The FBI then arrested all of them.

The panel considered at length only three of the issues the defendants raised. First, it considered a challenge to evidence obtained pursuant to a court order the Government received under Section 2703(d) of the Stored Communications Act (SCA), compelling AT&T to turn over historic cell site location information (CSLI) generated by one of the defendant’s phones. The information gave the location of cell towers nearest the phone that relayed calls or messages from it. The Court, in a lengthy discussion, rejected the defendant’s challenge that pursuant to the 4th Amendment, a warrant was needed for the disclosure. Note that the United States Supreme Court has granted cert. on this issue in another case— if you want to preserve the claim, you can use this ACLU cert. petition filed in that matter for reference. It also rejected the defendant’s argument that the Government failed to establish the “reasonable grounds” necessary for a magistrate to order the disclosure of the cell tower information— the information provided about the kidnapping ring, how a co-conspirator implicated the defendant, and a description of the involvement of each defendant satisfied the statutory standard.  Judge Restrepo dissented from this part of the opinion, opining that a warrant is necessary for this information.

The defendants then challenged their convictions under the Religious Freedom Restoration Act (“RFRA”). The RFRA ““substantially burden[s] a person’s exercise of religion” unless the government can demonstrate, inter alia, that the burden is the “least restrictive means of furthering [a] compelling government interest.” Invoking the RFRA requires “making out a prima facie case by showing that (1) it possesses a sincerely held religious belief, and (2) the government’s conduct substantially burdened that belief. “ The burden then shifts to the government to show that the prosecution is the least restrictive way of supporting a compelling interest. The defendants failed to show that their actions overrode the government’s interest in preventing kidnapping and torture. Another religion based challenge to the district court’s ruling barring the introduction of evidence explaining Jewish marital law to negate the specific intent required for conviction failed too. The motive to perform a mitzvah could be the reward for a kidnapping, and in any event, religious motivation cannot negate the intent to commit a crime. The district court also correctly ruled inadmissible evidence that Jewish men who signed a Jewish marital contract impliedly consented to being kidnapped and tortured at the behest of rabbis. Such consent must be specific to have any meaning at all.

The defendants challenged the admission of certain co-conspirator statements. Some of the challenged statements were made in response to a challenge to the rabbis authority by one of their victims. As none of the defendants could have believed they were making statements to help a criminal prosecution, they were not testimonial, and thus not subject to a Confrontation Clause challenge. They were also admissible under F.R.E. 801. The statements were made to assert the authority of the defendants to act as they did, and were thus admissible.


Challenges to the sufficiency of the evidence and the alleged outrageousness of the FBI conduct of the investigation were also dismissed.

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