Case 3:14-cr-00287-FLW Document 448 Filed 07/11/16 Page 1 of 4 PageID: 8785

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

(609) 989-2182
CHAMBERS OF

Clarkson S. Fisher Federal

Building & U.S. Courthouse
402 East State Street
Trenton, New Jersey 08608

FREDA L. WOLFSON
UNITED STATES DISTRICT JUDGE

July 11, 2016

Robert G. Stahl, Esq.

Law Offices of Robert G. Stahl, LLC
220 St. Paul Street
Westfield, New Jersey 07090
R. Joseph Gribko, Esq.
U.S. Attorney's Office
970 Broad Street
Newark, New Jersey 07102
RE:

United States v. Epstein

Crim. No.: 14-287(FLW)

Counsel:
For the second time, I have received a request from Defendant Mendel Epstein
(Defendant) for bail pending appeal. Since the denial of Defendants first request for bail after
his conviction and sentencing, Defendant has voluntarily surrendered to the Bureau of Prison
(BOP) in Fort Dix. Apparently, certain health issues have arisen in the prison setting that
Defendant argues would justify this Court to reconsider its prior detention order. For the reasons
that follow, I remain unconvinced, and therefore, Defendants request is DENIED.
At the outset, I note that Defendant claims that this Court has the inherent power to
reconsider its prior order of detention based on changed circumstances. The Government has not
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addressed, or objected to, that part of Defendants argument. Under Fed R. App. P. 9, after a
district court issues its detention order, Defendant may seek an appeal of that order to the circuit
court. See Fed. R. App. P. 9(b). Defendant did not do so. The Rule is silent on whether this
Court has jurisdiction to entertain another request for bail when the first motion for bail pending
appeal has been denied. Therefore, I express reservations as to whether I am permitted under the
Rules to reconsider Defendants request. However, because I find that the reasons upon which
Defendants renewed motion are based do not justify bail, I need not discuss this issue here.
As a brief summary of my prior decision, I denied Defendants request for bail pursuant to
18 U.S.C. 3145(c). Specifically, Defendant claimed on that motion that bail pending appeal
was appropriate because, inter alia, of his poor health. I rejected that argument, because Defendant
failed to demonstrate how the BOP would be inadequate to treat his medical conditions. This
Court noted that health reasons rarely present an exceptional circumstance to warrant bail under
3145(c). The new medical basis raised by Defendant in the present request is no exception to the
rule.
Here, Defendant paints a parade of horribles related to his health since entering Fort Dix.
First, because of his diabetes, Defendant developed a diabetic ulcer on his foot, which progressed
into cellulitis, a skin infection. After being treated in the prison infirmary, the infection apparently
did not resolve and worsened. Because of the aggressive nature of the infection, the BOP
transferred Defendant to a local hospital with resources to treat osteomyelitis. He currently
remains hospitalized in this facility, where he is expected to remain for at least 4-6 weeks.
Defendant claims that bail is necessary so that he can be properly treated by his own physicians,
at his own expense. In addition, Defendant speculates that his rapid deterioration of health could
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result in a transfer to a medical facility far from his family and the Orthodox community at Fort
Dix, which is essential to his religious practice.
I have reviewed Defendants submissions, particularly the medical record prepared by the
BOP. While Defendant claims that his infection was the result of the prison conditions in Fort
Dix, there is no medical evidence of that assertion. Indeed, the Government submitted an affidavit
from Nicoletta A. Turner-Foster M.D., the Clinical Director for the United States Department of
Justice who supervises all physicians employed at Fort Dix. Ms. Turner-Foster suggests that the
condition of Defendants infection most likely was already present before he arrived in prison, and
that it manifested a week after his arrival. Regardless where the infection originated, this is not a
situation where it has been conclusively found that any prison setting would aggravate Defendants
illnesses. Even so, however, Defendant has also failed to demonstrate similar to his prior
request that the BOP is not equipped to treat his conditions. In fact, to the contrary, Defendant
was immediately transferred to an outside hospital where he has been adequately treated and
remains stable.
To meet his burden under 3145(c), Defendant must establish that any necessary medical
treatment or monitoring would be inadequate in his prison setting. See United States v. Haugen,
No. 12-305, 2015 U.S. Dist. LEXIS 57864, at *5-6 (D. Minn. May 4, 2015); United States v.
Rodella, 101 F. Supp. 3d 1075, 1133 (D.N.M. Apr. 21, 2015)(finding that the defendant has the
burden of proof to clearly show that his incarceration would substantially impact his health
conditions negatively). There is no medical indication, here, that Defendant would not receive
proper care, or that the care he is receiving is lacking in any way. See United States v. Turner,
531 F.Supp. 2d 123, 131 (D.D.C. 2008)(rejecting defendants claim that his own physicians were
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in a better position to treat him, which assertion was based on defendants speculation that the
BOPs treatment would be insufficient).
Finally, even if Defendants condition necessitates a transfer to a different but farther
facility away from family and religious community, I do not find that such occurrence would meet
the exceptional circumstance requirement under 3145(c). Indeed, these personal reasons do not
qualify as extraordinary reasons. See United States v. Green, 250 F. Supp. 2d 1145, 1149 (E.D.
Mo. 2003); United States v. Huggins, No. 15-50025, 2015 U.S. Dist. LEXIS 99509, at *7-8 (D.S.D.
Jul. 30, 2015). Defendant further argues that he stands on a differently footing because of his
advanced age. However, without any other extraordinary circumstance, age is not a sufficiently
compelling reason for bail. See, e.g., United States v. Guajardo, 950 F.2d 203, 208 (5th Cir.
1991); United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990); United States v. Summers, 893
F.2d 63, 68-69 (4th Cir. 1990).
Accordingly, Defendants renewed request for bail pending appeal is denied.

SO ORDERED.
Sincerely,

/s/ Freda L. Wolfson

Freda L. Wolfson
United States District Judge