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Case of Rabbi Yehudah Friedlander
Assistant to Rabbi Israel Grunwald
Boro Park, NY
A federal grand jury returned a one-count indictment of sexual abuse of a minor against Yehudah Friedlander who was an assistant to Rabbi Israel Grunwald (who leads a small faction of Pupa Chassidim in Boro Park, Brooklyn).
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Timeline
1995
Two Rabbis Are Charged In Sexual Abuse on a Plane (06/02/1995)
1996
1997
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YEHUDA P. FRIEDLANDER, Defendant - Appellant. (03/27/1997)
Also see:
Brooklyn Rabbi Is Freed on Bail In Sex Case, but Assistant Is Held
By ROBERT D. MCFADDEN (NYT) 435 words
New York Times - June 3, 1995
A Brooklyn rabbi charged in Los Angeles with touching the breast of a 15-year-old girl on a flight from Australia returned home yesterday, but his assistant, facing a more serious sex-abuse charge, was ordered held pending an inquiry into his involvement in a 1991 sexual-abuse case in upstate New York.
The two rabbis were returning on a United Air Lines flight to Los Angeles on Wednesday when an American girl traveling alone ran sobbing to the crew and accused the men of molesting her. The rabbis were arrested on arrival in Los Angeles.
Rabbi Grunwald, the leader of Congregation Tuldos Yakov Yosef, was charged with sexually touching a minor and was released on a $10,000 signature bond at a hearing on Thursday. He flew to New York yesterday and went into seclusion at his home at 1137 53d Street.
But Rabbi Friedlander, who was charged with more extensive sexual abuse, was held without bail after prosecutors said he had admitted some of the acts, although contending that the girl had encouraged him.
Prosecutors also told the court on Thursday that Rabbi Friedlander had been involved in a 1991 sexual-abuse case in Monticello, N.Y. The prosecutors erroneously told the court then that he had pleaded guilty to a charge of third-degree sexual abuse, the records of which had been sealed. The magistrate ordered the defendant held pending the unsealing of those records.
Returning to court yesterday, prosecutors said they had not yet received permission from a New York judge to obtain the sealed records. Federal Magistrate Carolyn Turchin ordered the hearing continued and Rabbi Friedlander held until Tuesday.
In New York yesterday, Justice Robert C. Williams of State Supreme Court in Monticello, acting on a request relayed by the Sullivan County District Attorney, Stephen Lungen, ordered the case record sent to Federal prosecutors in Los Angeles.
Prosecutors refused to disclose the contents of the record. But officials close to the inquiry said that Rabbi Friedlander, while working at a yeshiva, had been accused of sexual abuse by a dismissed employee.
In an appearance in Monticello Village Court in October, 1991, he did not plead guilty, officials said. Instead, a judge ordered a six-month adjournment in contemplation of dismissal, on condition of good behavior. After six months, the charge was dismissed and the case record was sealed.
Rabbi Friedlander's lawyer, Mitchell Egers, said yesterday that the charges against his client were false.
Bail Set for Rabbi In Sex Abuse
Case
New York Times - June 8, 1995
A Federal magistrate set bail at $200,000 today for a Brooklyn rabbi accused of molesting a 15-year-old girl during an airplane flight.
Magistrate Carolyn Turchin set bail for the rabbi, Yehudah Friedlander, after his sister and his daughter's father-in-law posted bonds to insure the bail.
Rabbi Friedlander, 44, an assistant to Rabbi Israel Grunwald, was expected to leave the Metropolitan Detention Center here by Thursday, his lawyer, Mitchell Egers, said.
When he returns to Brooklyn, he will be under house arrest and be required to stay away from juveniles except his own children. He must also be supervised during flights to Los Angeles for court appearances, Ms. Turchin said.
Rabbi Friedlander and Rabbi Grunwald, 44, were arrested on May 29 at Los Angeles Airport on charges that they fondled the girl during a flight from Australia to Los Angeles. Both men were charged with abusive sexual conduct.
Rabbi Grunwald was released earlier on $10,000 bail. Ms. Turchin rejected Rabbi Friedlander's request for bail on Tuesday.
Grand jury to hear sexual misconduct case involving
rabbis
by TOM TUGEND
Jewish Telegraphic Agency - June 9, 1995
http://www.jewishsf.com/bk950609/uscase.htm
LOS ANGELES -- Federal authorities will decide next week whether to seek indictments of a respected Chassidic rabbi and his assistant, both of whom have been charged with sexually abusing a 15-year old girl on a flight from Australia to Los Angeles.
The assistant U.S. attorney in Los Angeles, Joel Thvedt, said he intended to present the case to a grand jury, which would decide whether to prosecute.
The accused are Rabbi Israel Grunwald of Brooklyn, a leader of the Hungarian Pupa Chassidim, and his assistant, Yehudah Friedlander, both 44 years old.
Their arrests have sparked outrage in the Chassidic and Orthodox communities of New York, while Los Angeles rabbis moved quickly to aid their colleagues.
Both of the accused have vehemently denied the charges, according to their attorney, Mitchell W. Egers.
After a hearing here June 2, U.S. Magistrate Judge Carolyn Turchin released Grunwald on $10,000 bail. He immediately flew back to New York.
Grunwald, charged with sexually touching a minor, faces a maximum of two years in prison and a $250,000 fine if he is convicted.
Friedlander remained in detention over the Sabbath and the Shavuot holiday, despite Egers' protests. He was being held pending clarification of the disposition of a 1991 arrest in New York state, in which he was charged with a sexual offense.
On Tuesday, Turchin denied a cash bail to Friedlander, calling him "a danger to society."
The judge said Friedlander only would be released if someone put up his or her house with equity valued at least at $100,000.
If convicted, Friedlander, who was charged with more extensive sexual abuse, faces up to 15 years in prison and a $250,000 fine.
Friedlander has been identified in the media as a rabbi or "assistant rabbi," but according to Egers and New York sources, he is actually a non-rabbinical assistant.
A nine-page affidavit submitted to the court by an FBI agent, which cites statements by the young girl, a witness on the plane and Friedlander, alleges a number of occurrences during the long United Air Lines overnight flight.
The girl, an American traveling alone, accused Grunwald of leaning across an empty seat and, following some conversation, touching her necklace and fondling her breasts.
At some point, Friedlander allegedly exchanged seats with Grunwald, and while the cabin lights were dimmed, Friedlander allegedly groped and fondled the girl's private parts and breast for some five to eight minutes, the complaint charged.
The teenager told authorities that she tried to fend off the advances but was too embarrassed to call for help. However, a woman passenger observed the alleged incident, talked to the girl and then notified the flight crew, which radioed a report to authorities.
When the plane landed in Los Angeles, FBI agents, who assumed jurisdiction under the laws governing American aircraft in flight, arrested the two men.
One agent quoted Friedlander as telling him that it was the girl who initiated the advances, adding that "I shouldn't have done it, but it happened."
Egers said Friedlander was "in a state of shock and deeply upset that the whole Jewish world" knows about the accusations.
Egers, a veteran trial lawyer with close ties to the Orthodox community, said when he and his two clients appeared in court last week, he was "besieged by armies of reporters, with just about all the media from New York and Los Angeles on hand." For a day, "we were bigger than the O.J. Simpson case."
Reaction to the arrests was sharpest in the Boro Park section of Brooklyn, where Grunwald serves as rabbi of Congregation Tuldos Yacov Yosef.
Rabbi Bernard Freilich, administrator of the Council of Jewish Organizations in Boro Park, told The New York Times that "people are outraged at these charges. They are unbelievable, impossible nonsense. It is impossible that an Orthodox Chassidic person would even speak to a female, much less touch her."
Rabbi Abner Weiss of the Orthodox Beth Jacob Congregation in Beverly Hills took a less categorical view. He was being installed as the new president of the Board of Rabbis of Southern California when he received word of the arrests.
In his first act in office, Weiss conferred with Aaron Kriegel, a Conservative rabbi who serves as prison chaplain, to assure that the two Chasidim would receive kosher food. Weiss said he personally bought loaves of challah for Grunwald and Friedlander.
Without passing judgment on the case, Weiss, who holds a graduate degree in psychology, noted that, in general, "Jews are not immune to any kind of illness, physical or mental."
Two Rabbis Are Charged In Sexual Abuse on a
Plane
By ROBERT D. MCFADDEN (NYT) 887 words
New York Times - June 2, 1995
The chief rabbi of a Hungarian Hasidic congregation in Borough Park, Brooklyn, and his assistant rabbi were charged in Los Angeles yesterday with sexually abusing a 15-year-old girl on a flight from Melbourne, Australia, where the men had been on a lecture tour. The rabbis denied the allegations.
The suspects, Rabbi Israel Grunwald, 44, the head of Congregation Tuldos Yakov Yosef, and his assistant, Rabbi Yehudah Friedlander, 44, were arrested as they stepped off a plane at Los Angeles International Airport on Wednesday on the basis of a complaint made during the flight by a sobbing girl and radioed ahead, Federal officials said.
Arraigned in Los Angeles yesterday before a United States magistrate, Carolyn Turchin, Rabbi Grunwald was released on $10,000 bail for a June 21 preliminary hearing on a Federal charge of sexually touching a minor, an offense with maximum penalties of two years in prison and a $250,000 fine.
Rabbi Friedlander, who was charged with more extensive sexual abuse, was held for further investigation after the court was told he had admitted some of the acts to Federal agents, though contending that the girl had encouraged him, and that Rabbi Friedlander had pleaded guilty to a charge of third-degree sexual abuse in Monticello, N.Y., in 1991. If convicted, he faces up to 15 years and a $250,000 fine.
Neither suspect entered a formal plea during the hearings, which were attended by dozens of rabbis from Los Angeles and New York in support of their colleagues. But outside the court, Mitchell Egers, a lawyer representing both men, said his clients vehemently denied the charges.
"These are fine, decent, moral men, highly respected and looked up to by thousands of people in their community," Mr. Egers said. He said neither rabbi knew the girl, who is American, and he called the case "a mixup" and said he was "confident that the truth will emerge and that we'll all be happy."
Rabbi Bernard Freilich, administrator of the Council of Jewish Organizations of Borough Park, which represents 250 Jewish congregations, said Rabbi Grunwald was the son of Josef Grunwald, the late Grand Rabbi of the Pupa Hasidim, who transplanted Holocaust survivors from Pupa, Hungary, to Brooklyn after World War II.
Today, the sect has more than 12,000 members in Monsey, N.Y., Montreal, London and Jerusalem, as well as in Williamsburg and Borough Park in Brooklyn. Yakov Grunwald, the founder's eldest son, is the Grand Rabbi and head of the Williamsburg community, and Israel Grunwald leads several hundred families in Borough Park.
The acts were said to have occurred on United Air Lines Flight 842 over the Pacific. Federal prosecutors, who assumed jurisdiction under laws governing United States aircraft in flight, said the girl, whose name was withheld because of her age -- she turned 15 during the flight -- had accused Rabbi Grunwald, after first engaging her in conversation, of reaching across an empty seat, placing his hand under her shirt and touching her breast.
The girl's detailed complaint said Rabbi Friedlander, who had been sitting on the far side of his colleague, exchanged seats with Rabbi Grunwald, and made a series of unwanted approaches while the cabin lights were dimmed for movies and rest periods during the long overnight flight.
She said he forced his hand under her clothing and touched her breast repeatedly and her vagina, despite her pleas for him to stop and her efforts to push his hand away. The girl said she finally began sobbing and retreated to the lavatory.
An affidavit by Mark Van Steenburg, the Federal Bureau of Investigation's senior agent at the Los Angeles Airport, said that another passenger, Sheila Myers, seated across an aisle just forward of the girl, told him she saw Rabbi Friedlander grope the girl for five to eight minutes under a blanket and alerted the flight crew.
Mr. Van Steenburg said Rabbi Friedlander told him the girl had put his hand on her breast twice, and on her pelvic area. "I did it, I shouldn't have done it, but it happened," the agent quoted the rabbi as saying.
The allegations stunned the rabbis' colleagues, neighbors and members of their community in Borough Park, many of whom called the actions unthinkable and the charges unbelievable, possibly trumped up by the teen-aged girl. They also complained that the rabbis, who were dressed in their traditional black garb and wore beards and sidecurls, had been humiliated by Federal agents who handcuffed them as they stepped off the plane.
"It's the most shocking thing I could ever think of," said a neighbor of Rabbi Grunwald, who lives with his family above his synagogue at 1137 53d Street.
Rabbi Freilich spoke of "tremendous anger in the Jewish community" over the charges, and said: "It is impossible that an Orthodox Hasidic person would even speak to a female, much less touch her. Our information is that she was trying to get into a conversation with them. To us, it looks like she drummed up a charge."
Federal child sex charge has local tie
By TOM RUE
The River Reporter, June 15, 1995
http://www.riverreporter.com/news/rue/950615b.htm
MONTICELLO - An ultra-orthodox rebbe arrested in Los Angeles for sexually abusing a 15-year-old girl on a jetliner had a prior similar charge dismissed in Village of Monticello Justice Court, according to The New York Times and Cable News Network.
Yehuda Friedlander, now 44, was charged in 1991 with sexual abuse in the third degree, a misdemeanor. The charge was reportedly adjourned in contemplation of dismissal, and ultimately dismissed and sealed. It allegedly involved an offense against an adult woman.
At the time of the accusation, Friedlander reportedly managed a children's summer camp in Sullivan County.
Former village justice Mark Schulman was the judge who dismissed the charge against the rebbe, according to two sources familiar with the case. Local authorities declined to release any information, claiming the case was sealed by the justice court.
Friedlander was arrested on June 1 with Israel Grunwald, the chief rabbi of an Hungarian Hasidic congregation in Brooklyn, known as the Pupas, on May 29 after arriving on a flight from Australia. Friedlander is assistant rabbi of the same congregation. Both pled not guilty.
The girl, whose name was not reported, told authorities one rabbi reached inside her shirt and fondled her breasts during the flight, and the other pushed his hands into her underpants.
Federal magistrate Carolyn Turchin is Los Angeles denied Friedlander bail, stating she wanted to know more about the Monticello case first. Grunwald was released on a $10,000 bond, pending a June 21 appearance.
Rabbi's aide indicted in sex attack of girl
JTA - June 16, 1995
http://www.jewishsf.com/bk950616/usaide.htm
LOS ANGELES (JTA) -- A federal grand jury on Tuesday returned a one-count indictment of sexual abuse of a minor against Yehudah Friedlander, an assistant to Rabbi Israel Grunwald, who leads a small faction of Pupa Chassidim in Boro Park, Brooklyn.
Friedlander and Grunwald were arrested together, but Assistant U.S. Attorney Debra Yang said it has not been determined whether an indictment of the rabbi will be sought.
Friedlander is currently free on $200,000 bail and has been ordered to appear in L.A. court June 19 to hear the charges and enter a plea, which will be "not guilty," said his attorney, Michael Abzug.
If convicted, Friedlander could face a sentence of up to 15 years in prison and a $250,000 fine.
The charges against the two men, contained in a nine-page FBI affidavit, allege that during a plane ride from Australia to Los Angeles, Grunwald and Friedlander fondled and groped a 15-year old American girl, sitting one seat away.
A woman who said she witnessed the alleged attack convinced the girl to tell the flight crew, and the two men were arrested as they disembarked in Los Angeles.
Grunwald, who would face the lesser charge of sexually touching a minor, was released on $10,000 bail and returned to New York. He was to appear in court June 26, but his attorney, Mitchell Egers, said there will be a delay.
The FBI affidavit said Friedlander told one agent that it was the girl who initiated the advances. "I shouldn't have done it, but it happened," he reportedly said.
Abzug denied that Friedlander, the father of five children, had made the confession, and questioned whether other statements were obtained lawfully.
Focus on crimes involving religious Jews
sparks debate
by DEBRA NUSSBAUM COHEN
Jewish Telegraphic Agency - June 16, 1995
NEW YORK -- Is it right to expect more moral behavior from those who present themselves as religious Jews than from those who do not?
The answer depends on which rabbi you ask.
The question arises in the wake of the indictment on sex crime charges of an aide to a prominent Chassidic rabbi and several instances of alleged breaches of ethical behavior by Jews who call themselves religious.
Among those whose morality has been called into question is a Reform rabbi, who has been the focus of community suspicion in the murder of his wife, though he has neither been arrested nor formally ruled out as a suspect.
On the other end of the religious spectrum are two leaders of a Chassidic community, who were arrested on charges of sexually molesting a teenage girl, and an Orthodox district attorney, whose financial abuses of his office and marital infidelities were recently exposed.
Such crimes are not limited to members of the rabbinate and Orthodox world, of course, but there is much greater interest in such cases when these individuals are involved.
Recognizing that even rabbis need explicit guidance about behaving ethically in financial and sexual matters in complicated times, the Reform movement updated its rabbinic ethics policy in 1991.
And a few months ago, the Reconstructionist Rabbinical Assembly adopted its own rabbinic ethics policy on similar matters.
The Conservative movement has no formal policy, though its rules for filing and dealing with a complaint against a rabbi are in the process of being clarified, said Rabbi Joel Meyers, executive vice president of the movement's Rabbinical Assembly.
For the mainstream Orthodox rabbinical group, the Rabbinical Council of America, the ethics policy is "the laws of the Torah," said Rabbi Steven Dworken, the group's executive vice president.
"We presuppose that an Orthodox rabbi doesn't need more of a policy than that," he said.
But the current case involving allegations that a rabbi of the Pupa Chassidic sect and his assistant sexually abused a teenage girl while flying from Australia to Los Angeles suggests that not every Orthodox Jew follows the Torah closely.
Rabbi Israel Grunwald, the leader of Congregation Toldos Yakov Yosef in the Boro Park section of Brooklyn, was charged with the federal crime of sexually touching a minor, while his assistant, Yehudah Friedlander, was indicted for sexual abuse.
The court was told the rabbi had admitted to federal agents that he had committed some of the acts, which the girl said included forcing his hand under her clothing and repeatedly touching her breast and her vagina despite her pleas not to, according to news reports.
Friedlander reportedly pleaded guilty in 1991 to the charge of third-degree sexual abuse in a Monticello, N.Y., case.
A federal magistrate, in initially denying bail, called Friedlander "a danger to the entire community." The rabbis' attorney told reporters that both denied the charges.
The case is clearly getting more attention in the media than it would have had the alleged assailants been non-religious.
Rabbis of several denominations interviewed said the attention is justified.
According to one Orthodox rabbi, Irving "Yitz" Greenberg, "It is legitimate to expect more" moral behavior from the observant. Still, "no system, no matter how good, will not have individual failures."
That Friedlander had allegedly pleaded guilty to sexual abuse several years earlier, yet retained a position of importance within his community, was also cause for concern, said Greenberg.
"Was that behavior treated with the seriousness it deserves, or did the `oldboys' close ranks behind him? It raises that question," said Greenberg, president of CLAL -- the Jewish Institute for Learning and Leadership.
"In the Orthodox community there is too much closing ranks and a `no one rock the boat' mentality. There is authoritarian leadership, and dissent is not tolerated. Criticism is seen as disloyalty," he said.
The spokesman for an ultra-reglious group, Agudath Israel of America, said he was not so certain that the focus on religious Jews' failings is legitimate.
"The attention paid to them because they're Chassidim is understandable but lamentable," said Rabbi Avi Shafran.
"What results from it is the reinforcement of the stereotype that Chassidim are hypocrites. The overwhelming majority of the observant world is people determined to keep to the stringencies of their faith," he added.
"For people to think Chassidim are this way, hiding a darker self, is embarrassing to all of us who wear beards and yarmulkes."
In another high-profile New York case, Rockland County District Attorney Kenneth Gribetz, an Orthodox Jew, quit his post last month shortly before pleading guilty to two misdemeanor counts of defrauding the government in a deal he worked out with the U.S. Attorney.
Although married, a father and grandfather, Gribetz was partly done in by his former mistress, who went to the media with information about him. Gribetz aspired to being a congressman and was admired by many of his area's religious Jews.
Rabbi Moshe Tendler, Gribetz's longtime rabbi, said in an interview that he had often cited Gribetz in his speeches to illustrate how a devout Jew can remain faithful to the laws of kashrut and Shabbat while pursuing any career --even in law and politics.
But evidence police collected from Gribetz's ex-lover's home included whips, a dog collar, sex toys and pictures of Gribetz modeling women's clothing. Their three-year affair apparently included trips they took together funded by taxpayers' dollars.
Tendler, who organized a meeting of community rabbis to levy social sanctions against Gribetz just before his breaches became public, described the former politician's behavior as a "chilul haShem," or a desecration of God's name.
His behavior "emasculated our Torah. It reduces or minimizes the claim of Torah, that this is the divine law fit for the human experience. If someone who has been exposed to Torah does these things, what will people say?" said Tendler.
It is the reverse of what a religious Jew is supposed to do, that "the name of God shall be loved by your actions in Kiddush HaShem," said the rabbi,who is also a professor at Yeshiva University and a respected expert on medical ethics.
When a pulpit rabbi is implicated in a breach of ethics, as was the case with Rabbi Fred Neulander, the spiritual leader of Congregation M'kor Shalom, a Reform temple in Cherry Hill, N.J., it can shed light on the congregants' expectations of rabbinic behavior.
Neulander resigned from his position in March, four months after his wife Carol was bludgeoned to death. He has not been arrested, but the police have not ruled him out as a suspect in the ongoing investigation.
In addition, the widespread coverage it has received in the local media "has brought to light Neulander's involvement in marital infidelities," according to the Jewish Exponent in Philadelphia.
His congregation is reportedly still reeling in shock from the brutal murder and subsequent upheaval.
Should people be more profoundly disappointed by rabbis' failings than those of lay people?
According to Reform Rabbi Eugene Borowitz, "all Jews are expected to behave to a high standard of human conduct."
But "if that's true of all Jews, it's certainly true of clei kodesh," or holy vessels, said Borowitz, meaning that religious Jews have a responsibility for representing the highest ethical standards.
Borowitz is a professor of Jewish religious thought at Hebrew Union College, the Reform movement's seminary in New York City. He also authored a booktitled, "Reform Jewish Ethics and the Halacha."
Leila Gal Berner, a Reconstructionist rabbi and expert on Jewish ethics, said all religious Jews, and especially rabbis, have to guard against "the hubris that comes with the moral authority that people give them."
"When we allow ourselves to fall into a sense of self-importance, moral lapses can happen. In this situation, those involved could have thought that `no one would believe I would do such a thing,'" said Berner, director of the Center for Jewish Ethics at the Reconstructionist Rabbinical College in Wyncote, Pa.
"Part of the baggage that comes with being a rabbi or religious Jew is the kavod [honor] people give you," she added. "It's very nice, but also aburden. With that sense of hubris, then anything goes."
Rabbi's Aide Pleads Guilty in Sex
Charge
REUTERS - November 2, 1995
A rabbi's assistant accused of sexually molesting a 15-year-old girl on a flight from Australia pleaded guilty to the charge on Tuesday, a day before his trial was set to begin, and faces up to two years in prison.
The assistant, Rabbi Yehudah Friedlander, an aide to Rabbi Israel Grunwald of Brooklyn, is to be sentenced on Jan. 18, the United States Attorney's office here said.
A spokeswoman said Rabbi Friedlander had pleaded guilty to abusive sexual acts with a minor, which carries a maximum sentence of two years.
Rabbi Friedlander, 44, was arrested along with Rabbi Grunwald when their United Airlines plane landed in Los Angeles on May 31 after a flight from Melbourne, Australia.
Rabbi Grunwald was initially accused of touching the unidentified girl on the breast but charges against him were dropped. He heads Congregation Tuldos Yakov Yosef, a Hungarian Hasidic congregation in Borough Park, Brooklyn.
According to an F.B.I. affidavit, Rabbi Friedlander sat next to the girl, who was traveling alone. He groped her breast, put his hand inside her pants and touched her vagina.
REUTERS - January 20, 1996
A rabbi's assistant from Brooklyn was sentenced to 22 months in prison today for sexually abusing a 15-year-old girl who sat beside him during a flight from Australia to Los Angeles.
Yehudah Friedlander, wearing traditional Hasidic attire, dabbed his eyes with a handkerchief as he was jailed for groping the girl's breast and touching her genitals on a flight last May 31.
Your honor, I stand before you disgraced," Mr. Friedlander, 44, told Judge Spencer Letts of Federal District Court. "Nothing I can say, nothing I can do will change this. The pain and suffering I caused is deep and immeasurable."
Mr. Friedlander, the father of five, is a personal assistant to Rabbi Israel Grunwald, head of a Hungarian Hasidic congregation in Borough Park, Brooklyn.
Case Name: UNITED STATES v.
FRIEDLANDER
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. YEHUDA P. FRIEDLANDER, Defendant - Appellant.
1997 U.S. App. LEXIS 5322 *
NO. 96-50074
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 6, 1997, Argued and Submitted, Pasadena, California
March 18, 1997, FILED
Notice:
[*1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Prior History:
Appeal from the United States District Court for the Central District of California. D.C. NO. CR-95-00516-JSL. J. Spencer Letts, District Judge, Presiding.
Subsequent History:
Reported in Table Case Format at: 110 F.3d 71, 1997 U.S. App. LEXIS 10847.
Disposition: AFFIRMED.
Keywords: vulnerable, guideline, unusually, enhancement, counting, double, impermissible, criminal conduct, susceptible, sexual contact, sexual abuse, proportionality, wrongfulness, sentence, several times, vulnerability, unrelated
Counsel: For UNITED STATES OF AMERICA, Plaintiff - Appellee: Nora M. Manella, AUSA, Los Angeles, CA. Debra A. Yang, Esq., USLA - OFFICE OF THE U.S. ATTORNEY, Criminal Division, Los Angeles, CA.
For YEHUDA P. FRIEDLANDER, Defendant - Appellant: Brian D.
McMahon, Esq., CRANE, RAYLE & LENNEMANN, Santa Monica, CA.
Richard P. Crane, Jr., Esq., CRANE & McCANN, Santa Monica, CA.
Judges:
Before: D.W. NELSON and TROTT, Circuit Judges, and BRYAN, District Judge. **
** Honorable Robert J. Bryan, United States District Judge for the Western
District of Washington, sitting by designation.
Opinion:
MEMORANDUM *
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[*2]
Yehuda P. Friedlander appeals his sentence imposed following his guilty plea to abusive sexual contact in violation of 18 U.S.C. § 2243(a). At sentencing, the district court found that the victim was unusually vulnerable and adjusted the offense level upward two points pursuant to U.S.S.G. § 3A1.1. Friedlander argues that this enhancement amounts to double counting because the age of the victim had already been considered under U.S.S.G. § 2A3.2. n1 n1 The Statutory Index references U.S.S.G § 2A3.4 for violations of 18 U.S.C. § 2244(a)(3). However, section 2A3.4 indicates that if the crime involves sexual abuse, rather than sexual contact, of a minor, U.S.S.G. § 2A3.2 should be applied.
We review the district court's application of the Sentencing Guidelines de novo. United States v. Caterino, 957 F.2d 681, 683 (9th Cir. 1992). We accord the district court's application of the Sentencing Guidelines to the facts due deference, and we review its findings of fact in the sentencing phase for clear error. [*3] United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990) (citing 18 U.S.C. § 3742(e)).
The offense of sexual abuse of a minor (18 U.S.C. § 2243(a)(1) and (2)) requires that the victim be between the ages of 12 and 16, and at least four years younger than the defendant. Here, the victim was 15 years of age, and the appellant was 44 years of age.
U.S.S.G. § 3A1.1(b) states as follows: "If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels." Application Note 2 further explains this section:
Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim's unusual vulnerability. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in a case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. [*4] Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller's position in a bank.
Do not apply subsection (b) if the offense guideline specifically incorporates this factor. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.
(emphasis added).
The text of a Guideline section and its associated application note are construed as consistent where possible. Stinson v. United States, 508 U.S. 36, 38, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993) ("Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."). See also United States v. Anderson, 942 F.2d 606, 613 (9th Cir. 1991) (en banc).
The overall policy of the Guidelines is to punish a defendant for "all harm that resulted from the acts and omission" for which he is responsible. United States v. Reese, 2 F.3d 870, 894-95 (9th Cir. 1993) (quoting U.S.S.G. [*5] § 1B1.3(a)(3)). When more than one type of harm is attributable to the defendant's conduct, enhancement is appropriate to carry out the Commission's goal of proportionality. Id. at 895. So- called "double counting" is permissible "when it is necessary to make the defendant's sentence reflect the full extent of the wrongfulness of his conduct." Id. Double counting is impermissible when expressly forbidden or when "one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by the application of another part of the Guidelines." Id.
We applied these principles in Reese where we upheld the district court's application of the aggravated assault guideline to enhance the offense level for a conviction of deprivation of civil rights by excessive force. Id. At 896; see also United States v. Haggard, 41 F. 3d 1320, 1327 (9th Cir. 1994) (section 3A1.1 accounts for the defendant's choice of victims and allows extra punishment for defendants that prey on unusually vulnerable victims); United States v. Hershkowitz, 968 F.2d 1503, 1505-06 (2d Cir. 1992) (vulnerable victim enhancement [*6] not impermissible double counting because not every civil rights violation involves a victim who is "particularly susceptible to the criminal conduct").
The district court made numerous findings of fact in this case: The offense took place on an airplane; the female victim was traveling alone from Australia to the United States; the seats were assigned; the victim could not leave the plane; Friedlander was a religious leader, "clothed with the stamp of righteousness" and the victim did not expect such conduct from him; the victim had been touched by Friedlander and by his companion, a rabbi, several times previously; the victim tried to stop the advances several times; the victim tried to hide from Friedlander; and the victim did not call for help because she was too embarrassed. The findings of fact of the district court are not disputed by the parties and are supported by ample evidence. Based on these findings, the district judge increased the offense level by two under U. S.S.G. § 3A1.1 because the victim was unusually vulnerable.
Friedlander argues that the district court engaged in impermissible double counting by the two-point enhancement under U.S.S.G. § 3A1.1. He contends [*7] that the victim was vulnerable due to her age, which was already part of the basis for the offense level pursuant to U.S.S.G. § 2A3.2. Friedlander argues that U.S.S.G. § 3A1.1 presents an either-or choice (age or unusual vulnerability), but it does not anticipate use of both factors.
The victim's age alone does not fully reflect the wrongfulness of Friedlander's conduct. Because of the circumstances of this offense, the victim was particularly susceptible to criminal conduct, and was unusually vulnerable for reasons unrelated to age. Therefore, the district court's application of the vulnerable victim enhancement does not amount to double counting. Such application merely carries out the Sentencing Commission's goal of proportionality. The trial court's application of the Sentencing Guidelines to the facts was appropriate. We affirm the district court's sentence.
AFFIRMED.
METROPOLITAN DESK
By NORIMITSU ONISHI (NYT) 311 words
New York Times - July 7, 1995
Federal prosecutors have dismissed charges against one of two rabbis from Borough Park, Brooklyn, who were accused of sexually abusing a 15-year-old girl during a trans-Pacific flight in May, officials said yesterday.
The United States Attorney's office in Los Angeles dropped the complaint of abusive sexual misconduct against Rabbi Israel Grunwald, 44, "without prejudice" -- meaning that the investigation will continue and the charge can be refiled, according to a statement from Assistant United States Attorney Debra W. Yang.
Donald Etra, the rabbi's lawyer, said yesterday, "My client realizes that the charge can be refiled, but the important point is that he is without fault and completely innocent of these charges."
Under Federal law, the Government had until June 29 to indict Rabbi Grunwald or drop the charges.
Rabbi Grunwald, the head of Congregation Tuldos Yakov Yosef, a Hungarian Hasidic congregation, and his assistant, Rabbi Yehudah Friedlander, 44, were returning to Los Angeles from a lecture tour in Australia on May 31 when the incident occurred aboard a United Air Lines plane.
A 15-year-old girl, seated in the same row as the two men, told authorities that Rabbi Grunwald first reached under her shirt and touched her breast. She said Rabbi Friedlander later exchanged seats with his colleague and repeatedly touched her breast and her vagina while the cabin lights were dimmed during movies and rest periods.
Rabbi Friedlander, who was indicted last month on the more serious charge of sexual abuse of a minor, was placed under house arrest in New York. Federal agents who interviewed Rabbi Friedlander said that he admitted some of the acts, but contended that the girl had encouraged him.
His trial has been set for Aug. 8, Mr. Etra said.
Rabbi Friedlander's lawyer, Michael Abzug, could not be reached for comment.
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