NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 14-3122 & 15-1039

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UNITED STATES OF AMERICA

v.

ELIYAHU WEINSTEIN,

Appellant

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Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Nos. 3-11-cr-00701-001 & 3-14-cr-00219-001)

District Judge: Honorable Joel A. Pisano

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Argued April 19, 2016

Before: McKEE, Chief Judge, AMBRO, and RESTREPO, Circuit Judges

(Filed: August 12, 2016)

Eric M. Creizman

Creizman LLC

565 Fifth Avenue, 7th Floor

New York, NY 10017

Richard A. Greenberg

Steven Y. Yurowitz [Argued]

William J. Dobie

Newman & Greenberg

950 Third Avenue, 32nd Floor

New York, NY 10022

Counsel for Appellant
2

Paul J. Fishman

 United States Attorney

Mark E. Coyne (Argued)

 Assistant U.S. Attorney

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee

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OPINION*

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AMBRO, Circuit Judge

Eliyahu Weinstein pleaded guilty in two cases now consolidated before us on 

appeal. In the first (“Weinstein I”) he admitted to operating a Ponzi scheme from 2004-

2011 whereby he misappropriated hundreds of millions of dollars that victims thought 

they were investing in specific real estate transactions. In the second (“Weinstein II”) he 

admitted to engaging in similar conduct from 2012-2013. 

Weinstein tried unsuccessfully to withdraw his Weinstein I guilty plea, claiming 

(1) the District Court participated in plea negotiations in violation of Federal Rule of 

Civil Procedure 11, and (2) his attorneys rendered ineffective assistance of counsel 

because they were actually conflicted when they encouraged him to plead guilty. He also 

tried unsuccessfully to have Weinstein II dismissed as a breach of the Weinstein I plea 

agreement and a Double Jeopardy violation. Those unsuccessful attempts are the basis of 

his current appeals. For the reasons that follow, we affirm.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

I. Background

The Weinstein I indictment alleges that Weinstein defrauded multiple victims from 

2004 to 2011. He convinced one victim, Morris Rotenstein, to invest in an insurance 

transaction, but then used for unauthorized purposes the money the latter invested. 

Rotenstein later told the FBI that he decided to invest with Weinstein based in part on 

assurances from Mark Harris, Weinstein’s attorney from the law firm Proskauer Rose 

LLP, that the investment was above board.

Plea negotiations began in November 2012. After the District Court denied 

Weinstein’s pretrial motions in December 2012, counsel for the prosecution and defense 

met with Judge Pisano in his chambers. According to Weinstein, his lawyers reported that 

the conversation focused on plea negotiations and that Judge Pisano gave assurances he 

would “remember” the Government’s past plea offers during sentencing if Weinstein 

pleaded guilty and made restitution. J.A. 149. Weinstein also claims his counsel said that 

Judge Pisano warned he had never had an acquittal in his courtroom. There is no direct 

evidence of what was said during that off-the-record meeting, and Judge Pisano denied

Weinstein’s second-hand account of the exchange.

The parties failed to reach an agreement despite continuing plea negotiations. 

Later in December, attorneys from Proskauer (including Harris) joined Weinstein’s 

criminal defense team. They reviewed the case to prepare for trial but ultimately 

recommended that Weinstein plead guilty. He did not do so until January 2013 when, 

according to him, Robert Cleary, one of his attorneys from Proskauer, reported that Judge 

Pisano said during an ex parte phone call that “all doors [would] be open” if Weinstein
4

were to plead guilty and make restitution but “all doors [would] be closed” if he were

convicted after a trial. J.A. 150. The only direct evidence of what Judge Pisano allegedly 

said ex parte on the phone is Cleary’s unsigned affidavit, which differs from Weinstein’s 

second-hand version of events and says (among other things) that the Judge “never 

articulated any preference for how the case should proceed or be resolved.” J.A. 247.

Judge Pisano denied making the remarks Weinstein attributed to him.

Weinstein then signed a plea agreement providing for a possible sentence of 

restitution and anywhere from 0-300 months’ imprisonment. As part of the plea 

agreement, the Government pledged not to file further charges against Weinstein “for his 

conduct, now known to the Government,” from June 2004 through January 3, 2013, the 

date of his guilty plea. J.A. 97.

Nearly five months after he pleaded guilty in Weinstein I, Weinstein was arrested 

in Weinstein II on a new complaint charging him with additional Ponzi-scheme-related 

offenses. The complaint alleged, among other things, that Weinstein had violated the 

conditions of his bail from Weinstein I, which prohibited him from completing any 

financial transactions worth more than $1,000 without advance notice to and approval 

from a special counsel.

After the complaint in Weinstein II was issued, Weinstein moved three times to 

withdraw his Weinstein I guilty plea, primarily citing two grounds for withdrawal: that 

Judge Pisano participated in plea negotiations in violation of Federal Rule of Criminal 

Procedure 11; and that the Proskauer attorneys rendered ineffective assistance because 

they had conflicts of interest. As proof of a Rule 11 violation, Weinstein presented
5

Cleary’s unsigned affidavit and numerous declarations containing second-hand

descriptions of Judge Pisano’s alleged participation in plea negotiations. As to the 

ineffective-assistance claim, Weinstein argued that Harris was likely to face criminal 

liability or be called as a prosecution witness because of his involvement in the 

Rotenstein transaction, so he could not have provided effective representation to 

Weinstein during plea negotiations.

Judge Pisano denied Weinstein’s motions, citing insufficient proof of a Rule 11 

violation and concluding that defense counsel was not actually conflicted. He sentenced 

Weinstein to 22 years’ imprisonment in Weinstein I.

Then, in April 2014, Weinstein II proceeded to indictment. It alleged that 

Weinstein committed additional Ponzi-scheme-related offenses from 2012 to 2013. The 

scheme involved, among other things, fraudulent representations related to supposed

investments in pre-IPO Facebook shares and real estate. Weinstein entered a conditional 

guilty plea that allowed him to move to dismiss the Weinstein II indictment and appeal 

any adverse ruling on that motion. He sought dismissal on the grounds that the Weinstein 

I plea agreement barred the Government from prosecuting him in Weinstein II and that 

Weinstein II violated the Double Jeopardy Clause of the U.S. Constitution. The District 

Court declined to dismiss the Weinstein II indictment and sentenced Weinstein to 135 

months’ imprisonment, only 24 months of which would run consecutive to the sentence 

in Weinstein I. 

Weinstein now appeals the District Court’s refusal to allow for the withdrawal of 

his Weinstein I guilty plea and its refusal to dismiss the Weinstein II indictment. 
6

II. Standard of Review

We review the denial of a motion to withdraw a guilty plea for abuse of discretion.

United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). In so doing, we review the 

District Court’s factual findings for clear error and its legal conclusions de novo. United 

States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). Similarly, “when reviewing a motion 

to dismiss an indictment, our standard of review is mixed.” United States v. Shenandoah, 

595 F.3d 151, 156 (3d Cir. 2010). “We exercise plenary review over the District Court’s 

legal conclusions and review any challenges to its factual findings for clear error.” United 

States v. Huet, 665 F.3d 588, 594 (3d Cir. 2012).

III. Discussion

A. The Motion to Withdraw the Weinstein I Guilty Plea

“Once a court accepts a defendant’s guilty plea, the defendant is not entitled to 

withdraw that plea simply at his whim.” United States v. Jones, 336 F.3d 245, 252 (3d 

Cir. 2003). Rather, he bears the “substantial” burden of “showing a ‘fair and just reason’ 

for the withdrawal of his plea” prior to sentencing. United States v. King, 604 F.3d 125, 

139 (3d Cir. 2010) (quoting Fed. R. Crim. P. 11(d)(2)(B)). To determine whether he has 

met that burden, “district courts consider whether: (1) [he] ‘asserts his innocence;’ (2) 

[he] proffered strong reasons justifying the withdrawal; and (3) the government would be 

prejudiced by the withdrawal.” Id.

Weinstein has neither “meaningfully reasserted his innocence,” Jones, 336 F.3d at 

252-53, nor demonstrated that the withdrawal would not prejudice the Government, see 

id. at 255. Nonetheless he contends there are two compelling reasons justifying the 
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withdrawal of his guilty plea: (1) Judge Pisano violated Rule 11 by participating in plea 

negotiations, and (2) his attorneys were conflicted and therefore rendered ineffective 

assistance.

We conclude that Judge Pisano did not abuse his discretion in ruling that

Weinstein had not made the substantial showing necessary to warrant the withdrawal of 

his guilty plea. Though Rule 11(c)(1) establishes a “bright line” prohibiting the court 

from participating in plea discussions, see United States v. Ebel, 299 F.3d 187, 191 (3d 

Cir. 2002), the evidence that Judge Pisano actually crossed that line falls short.

1

Weinstein claims Judge Pisano violated Rule 11 on two occasions: when he spoke with 

both sides’ counsel in chambers and when he had an ex parte phone call with Cleary. But 

the record support for Weinstein’s assertions is wanting. Weinstein cites only 

unsubstantiated hearsay to support his claims. Initially this hearsay appeared only in his

self-serving declaration, which was riddled with minor inaccuracies. See Gov’t Br. at 23.

Later it appeared in the declarations and affidavits of his attorneys and his spiritual 

adviser (one of which was unsigned), but even those statements are not enough for 

Weinstein to meet his “substantial” burden. First of all, that Weinstein could have 

presented those statements to the District Court earlier suggests they are post hoc 

attempts to bolster his position. Moreover, two of the declarations contain only double 

hearsay (i.e., they relay what Harris and Cleary allegedly said that Judge Pisano allegedly

said to others), J.A. 184, 244-45, and Cleary’s affidavit is entitled to no weight because it 

 

1 We reject Weinstein’s argument that Judge Pisano should not have been the one 

to rule on the Rule 11 motion because it lacks any support in our case law.
8

is merely an unsigned draft affidavit, J.A. 246. (We also note that even if we were to give 

weight to the Cleary affidavit, the comments it attributes to Judge Pisano do not indicate

a Rule 11 violation. See United States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994) 

(explaining that Rule 11(c)(1) “does not establish a series of traps for imperfectly 

articulated oral remarks”). Finally, though it is not dispositive, Judge Pisano repeatedly 

denied making any of the problematic statements attributed to him, and Weinstein stated 

under oath at his plea hearing that he was not induced to plead guilty and that no one had 

made any promises to him other than what appeared in the plea agreement.2 Thus the 

record lacks any credible evidence to substantiate the alleged Rule 11 violation, and it 

was not an abuse of discretion to deny Weinstein’s requests to withdraw his Weinstein I

guilty plea.

Second, Weinstein argues that defense counsel was ineffective because the

Proskauer attorneys were operating under an actual conflict of interest. An attorney is 

actually conflicted if, in connection with his representation of a client, he is very likely to 

face criminal charges or be a witness for the prosecution. See Gov’t of the Virgin Islands 

v. Zepp, 748 F.2d 125 (3d Cir. 1984). And representation by an actually conflicted 

attorney is ineffective and violates the Sixth Amendment without any need to show 

prejudice. See Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting Strickland v. 

Washington, 466 U.S. 668, 694 (1984)).

 

2

In the alternative, Weinstein argues in a footnote that he is entitled to withdraw 

his guilty plea because his attorneys lied about Judge Pisano’s ex parte remarks. But 

“arguments raised in passing (such as, in a footnote), but not squarely argued, are 

considered waived.” John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 

n.6 (3d Cir. 1997).
9

According to Weinstein, because Rotenstein relied on Harris’s comments when he 

decided to invest with Weinstein, Harris “faced potential criminal liability for aiding and 

abetting . . . [,] and his independent personal knowledge of the circumstances of the 

charges made him a [likely] witness for the prosecution.” United States v. Morena, 547 

F.3d 191, 198 (3d Cir. 2008). But Weinstein mischaracterizes Harris’s situation. The 

latter’s representations to Rotenstein were not false (let alone criminal) because the 

insurance transaction would have been legitimate had Weinstein not misappropriated the 

investment. With no evidence to suggest that Harris assisted in the misappropriation, he 

did not face potential criminal liability. Nor was Harris likely to be a witness for the 

prosecution. The Government could have proven that Weinstein defrauded Rotenstein 

with testimony from Rotenstein and a summary witness describing what Weinstein did 

with the investment; Harris’s testimony was not needed. 

Weinstein compares this case to Government of the Virgin Islands v. Zepp, where

defense counsel could not represent his client without putting himself at risk of criminal 

charges, and a damning stipulation from defense counsel was actually used to convict the 

defendant. See 748 F.2d at 137-39. But Harris was not at risk of criminal liability for his 

actions, and there is no reason to think that he would have been a prosecution witness in 

this case. Thus defense counsel was not actually conflicted and the District Court did not 

abuse its discretion when it ruled that Weinstein could not withdraw his Weinstein I 

guilty plea on the ground that his counsel had been ineffective. 

B. The Motions to Dismiss the Weinstein II Indictment
10

Weinstein next appeals the District Court’s refusal to dismiss the Weinstein II

indictment. He first argues that the Weinstein I plea agreement—which prohibits the 

Government from initiating “any further criminal charges against Eliyahu Weinstein for 

his conduct, now known to the Government, from in or about June 2004” through the 

date of his guilty plea (January 3, 2013), J.A. 97—bars the Government from bringing 

criminal charges against him for any financial fraud he may have committed before he 

pleaded guilty, including the frauds alleged in the Weinstein II indictment. According to 

Weinstein, the “conduct” referred to in the Weinstein I plea agreement encompasses any 

crimes committed using the modus operandi he employed to commit the crimes charged 

in Weinstein I and would include the criminal acts at issue in Weinstein II.

To say we disagree requires little thought beyond the text. “Plea agreements, 

although arising in a criminal context, are analyzed under contract law standards.” United 

States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). And under those standards the 

plain meaning of the agreement controls. See United States v. Davenport, 775 F.3d 605, 

609 (3d Cir. 2015). Here the word “conduct” plainly refers to any acts or omissions by 

Weinstein. The agreement bars the Government only from charging Weinstein in 

connection with specific criminal acts of which it was aware at the time he pleaded

guilty; it does not immunize him from prosecution when (as in Weinstein II) the 

Government later learns of a criminal act he committed before pleading guilty, even if the 

newly discovered act resembled the crimes to which he pleaded guilty. In context, it 

would be absurd to say that “conduct” refers to a type of crime and not a criminal act.
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Weinstein then argues that the charges in Weinstein II duplicate the charges in 

Weinstein I and therefore violate the Double Jeopardy Clause, which “prohibits 

successive prosecution or multiple punishment for” the same offense. Witte v. United 

States, 515 U.S. 389, 391 (1995). True enough, the District Court evaluated Weinstein’s 

Double Jeopardy challenge using the test from Blockburger v. United States, 284 U.S. 

299 (1932), and that was incorrect. Blockburger applies where the issue is “whether two 

offenses are sufficiently distinguishable to permit the imposition of cumulative 

punishment.” Brown v. Ohio, 432 U.S. 161, 166 (1977). Where, as here, the issue is 

whether the Government has improperly divided a single conspiracy into multiple 

conspiracies, the “totality of the circumstances” test from United States v. Liotard, 817 

F.2d 1074, 1078 (3d Cir. 1987), controls. See United States v. Rigas, 605 F.3d 194, 212 

(3d Cir. 2010).

But that misstatement was harmless. Under Liotard we consider factors like “the 

‘locus criminis’ of the alleged conspiracies [(i.e., where the crime was committed)]”; “the 

degree of temporal overlap between the conspiracies”; “the overlap of personnel between 

the conspiracies”; and “the similarity in the overt acts charged and role played by the 

defendant in each indictment.” United States v. Smith, 82 F.3d 1261, 1267 (3d Cir. 1996). 

Here they indicate there was no Double Jeopardy violation because the Weinstein I and 

Weinstein II conspiracies involved different victims in different locations, different time 

periods, different co-conspirators, and different schemes. 

* * * * * *
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We have considered Weinstein’s remaining arguments and find them 

unpersuasive. He has presented no credible evidence establishing that Judge Pisano 

violated Rule 11 or that Harris was actually conflicted. Nor has he presented sufficient 

reason to believe that Weinstein II breaches his Weinstein I plea agreement or is 

otherwise barred by Double Jeopardy. Thus we affirm.