Lakewood SCHI Founder's Post-Verdict Motion For Acquittal

MID-17-001661 03/11/2019 4:11:08 PM Pg 1 of 54 Trans ID: CRM2019194823
SUPERIOR COURT OF NEW JERSEY

THE STATE OF NEW JERSEY, MIDDLESEX COUNTY: LAW DIVISION
CRIMINAL PART
Plaintiff,
Indictment No. 18-04-00059-S
vs. Hon. Benjamin S. Bucca, Jr.
OSHER EISEMANN and SERVICES FOR
HIDDEN INTELLIGENCE, LLC,
Defendants.
DEFENDANT OSHER EISEMANN’S BRIEF IN SUPPORT OF MOTION FOR

JUDGMENT OF ACQUITTAL, OR IN THE ALTERNATIVE, A NEW TRIAL
CHIESA SHAHINIAN & GIANTOMASI PC

ONE BOLAND DRIVE
WEST ORANGE, NJ 07052
973.325.1500
Attorneys for Defendant Osher Eisemann
On the Brief:
Lee Vartan, Esq. (#0412520006)
Melissa Wernick, Esq. (#033642010)
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................................. iii
PROCEDURAL HISTORY................................................................................................ 1
INTRODUCTION .............................................................................................................. 1
STANDARD OF REVIEW ................................................................................................ 5
ARGUMENT ...................................................................................................................... 7
POINT I. A JUDGMENT OF ACQUITTAL MUST BE ENTERED................................ 7
A. Mr. Eisemann’s Acquittals on Counts 2 and 4, which

Included the $200,000, Require Entry of a Judgment of
Acquittal on Count 3. .................................................................................. 7
B. Financial Facilitation of Criminal Activity Requires Proof

of Two Crimes, and the State Did Not Prove a “First”
Crime........................................................................................................... 9
1. There Was No “First” Crime because the State

Failed to Prove that Private Dollars Are “Property of
Another.” ....................................................................................... 11
2. There Was No “First” Crime because the State

Failed to Prove Permanent Deprivation. ....................................... 16
C. Public Dollars Can Be Loaned, and the Specific Loan

between the School and the Foundation Was Known to and
Approved by the School’s Independent Auditor. ..................................... 18
D. Financial Facilitation of Criminal Activity Requires Two

Crimes, and the State Did Not Prove Concealment. ................................. 28
E. Financial Facilitation of Criminal Activity Requires Two

Crimes, and the State Did Not Prove Facilitation. .................................... 30
F. A Judgment of Acquittal Must Be Entered on Count 5

because the Foundation Was Acquitted on All Charges. .......................... 34
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TABLE OF CONTENTS (cont’d)

Page
POINT II. A MOTION FOR A NEW TRIAL MUST BE GRANTED ........................... 36
A. The Convictions on Counts 3 and 5 Are Against the Weight

of the Evidence. ........................................................................................ 36
B. The Jury Instructions Were Wrong. .......................................................... 37
1. The Confusion in the Jury Instructions Was the

Result of the Court’s Failure to Follow Well-Settled
Caselaw. ........................................................................................ 41
C. The Superseding Indictment Was Procured through a False

Narrative that the State Repeated to the Jury during the
State’s Closing Argument. ........................................................................ 43
CONCLUSION ................................................................................................................. 48
ii
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TABLE OF AUTHORITIES
Page(s)
Cases
Jones v. State,
302 Ga. 730, 808 S.E.2d 655 (2017)........................................................................................39
Kane v. Hartz Mountain Indus., Inc.,

278 N.J. Super. 129 (App. Div. 1994) .....................................................................................27
Meissner v. Aetna Cas. & Sur. Co.,

195 N.J. Super. 462 (Law. Div. 1984) .....................................................................................18
State v. Aitken,
No. A-0467-10T4, 2012 WL 1057954 (N.J. Super. Ct. App. Div. Mar. 30,
2012) ..........................................................................................................................................6
State v. Anastasia,
356 N.J. Super. 534 (App. Div. 2003) .......................................................................................6
State v. Batiz,
No. A-2070-10T3, 2011 WL 4104069 (N.J. Super. Ct. App. Div. Sept. 16,
2011) ........................................................................................................................................18
State v. Diorio,
216 N.J. 598 (2014) ......................................................................................................... passim
State v. Grimes,
235 N.J. Super. 75 (App. Div. 1989) .................................................................................27, 28
State v. Harris,
373 N.J. Super. 253 (App. Div. 2004) .....................................................................................41
State v. Kommendant,
No. A-2101-05T1, 2006 WL 3025601 (N.J. Super. Ct. App. Div. Oct. 26,
2006) ........................................................................................................................................18
State v. Price,
No. A-2847-06T2, 2011 WL 6030078 (App. Div. Dec. 6, 2011) ...........................................41
State v. South,
28 N.J.L. 28 (Sup. Ct. 1859) ....................................................................................................18
State v. Talafous,
No. A-1838-16T1, 2017 WL 2544790 (App. Div. June 13, 2017)..........................................41
iii
4821-6297-6650.v1
Page
State v. Tindell,
417 N.J. Super. 530 (App. Div. 2011) .......................................................................................6
State v. Van Ness,

450 N.J. Super. 470 (App. Div. 2017) .......................................................................................7
State v. Zeidell,
299 N.J. Super. 613 (App. Div. 1997) .......................................................................................6
Thomas v. United States,

314 F.2d 936 (5th Cir. 1963) ...................................................................................................39
United States v. Aunspaugh,

792 F.3d 1302 (11th Cir. 2015) ...............................................................................................42
United States v. Bala,

489 F.3d 334 (8th Cir. 2007) ...................................................................................................42
United States v. Cantrell,

612 F.2d 509 (10th Cir. 1980) .................................................................................................39
United States v. Cochran,

109 F.3d 660 (10th Cir. 1997) .................................................................................................42
United States v. Conde,

309 F. Supp. 2d 510 (S.D.N.Y. 2003)......................................................................................38
United States v. D’Alessio,

822 F. Supp. 1134 (D.N.J. 1993) .............................................................................................42
United States v. Eason,

434 F. Supp. 1217 (W.D. La. 1977).........................................................................................39
United States v. Kottwitz,

627 F.3d 1383 (11th Cir. 2010) ...............................................................................................26
United States v. Olazabal,

610 F. App’x 34 (2d Cir. 2015) ...............................................................................................25
United States v. Palo,

No. 1:16CR23, 2017 WL 6594196 (W.D. Pa. Dec. 26, 2017) ................................................39
United States v. Rahseparian,

231 F.3d 1257 (10th Cir. 2000) ...................................................................................41, 42, 43
iv
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Page
United States v. Wilson,

630 F. App’x 422 (6th Cir. 2015) ............................................................................................26
Statutes
N.J.S.A. § 2C:21-25 .......................................................................................................................41
v
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PROCEDURAL HISTORY
Defendant Osher Eisemann was charged in a superseding indictment with stealing nearly
$1 million in public monies from the School for Children with Hidden Intelligence (“SCHI” or
“School”). Defendant Services for Hidden Intelligence (“Foundation”) was charged as his
accomplice. Following a several week jury trial, Mr. Eisemann and the Foundation were
acquitted of all charges involving theft of public funds. Mr. Eisemann alone was convicted of
financial facilitation of criminal activity (Count 3) and misconduct by a corporate official (Count
5). The two counts were connected in the superseding indictment—Count 3 requiring a
conviction on Count 5 and Count 5 requiring a conviction on Count 3—but, significantly, neither
implicated public funds. Rather, as charged, the counts involved funds from the School
generally, whether those funds were “paid [by the sending school districts] or donated.” The
convictions on Count 3 and Count 5 cannot stand, and a judgment of acquittal must be entered on
both counts. In the alternative, a new trial must be granted.
INTRODUCTION
The testimony and exhibits at trial proved the following about the $200,000 transaction
charged in Count 3. On March 13, 2015, a cashier’s check from a School bank account was paid
to GZYD. The transaction was recorded on the School’s QuickBooks as a loan to the
Foundation and on the Foundation’s QuickBooks as a loan from the School. The Foundation’s
QuickBooks further recorded the transaction as a loan to “Gemach GZYD” and, thereafter (thirty
seconds later), as a loan to “Loan Payable:O. Eise Loan:Gemach GZYD.” Twelve days later, on
March 25, 2015, the $200,000 was returned to the School. The return transaction was recorded
on the School’s QuickBooks as a repayment from the Foundation and on the Foundation’s
QuickBooks as a repayment to the School. To summarize, the $200,000 was completely repaid,
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the School’s QuickBooks reflected a $200,000, 12-day loan to the Foundation that was repaid in
full, and the School was whole.
Approximately two months after the money was returned to the School, in May 2015, an
unknown bookkeeper made an entry into the Foundation’s QuickBooks that appeared to “write-
off” $200,000 that Mr. Eisemann purportedly owed to the Foundation. Nearly a year later,
“Admin” made an entry into the Foundation’s QuickBooks that changed the recordation of the
loan from “Loan Payable:O. Eise Loan:Gemach GZYD” to “Loan Payable:O. Eise Loan:Birchas
Chaim Loan,” and almost immediately thereafter (forty seconds later), to “Loan Payable:O. Eise
Loan:Bauman Loan.”
The 12-day, $200,000 loan from the School to the Foundation and its subsequent
recordation by “Admin” in QuickBooks formed the basis of the state’s financial facilitation
charge on a theory that shifted from indictment to trial and still remains uncertain. The
superseding indictment was premised on a $200,000 “theft” from the School “in funds paid [by
the sending school districts] or donated” for “the purpose of concealing…the funds.” Vartan
Certification (“Vartan Cert.”), Exh. F pp. 4-5. The trial proofs were premised on that same
$200,000 “theft,” but not for purposes of concealing, but rather for purposes of facilitating and
promoting a second “theft,” the “write-off” of the $200,000 that Mr. Eisemann purportedly owed
to the Foundation. The only thing clear is that the jury convicted Mr. Eisemann based on some
combination of confusion and exhaustion. The state did not prove all of the elements of financial
facilitation beyond a reasonable doubt.
Foremost, the state failed to prove a theft from the School. The state affirmatively
disclaimed any obligation in the superseding indictment and again at trial to prove that the
$200,000 was public money. But if the $200,000 was private money, then the state’s own “lead
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investigator” admitted, and the Court agreed, that no crime was committed. Related, the
$200,000 was loaned and repaid, in full, in 12 days; no evidence of permanent deprivation was
offered. The state likewise failed to prove that Mr. Eisemann knew that the $200,000 was
derived from criminal activity. If the $200,000 was private money, then “everyone agrees” there
was no crime. If the $200,000 was public money, it could be loaned by the School to the
Foundation. The Department of Education regulations said so, but, more importantly, the
School’s independent auditor said so, who had for years submitted unqualified audit reports on
behalf of the School to the Department that included loan balances between the School and the
Foundation and no suggestion that those balances were improper.
The state also failed to prove a laundering transaction. The indictment charged
concealment, but nothing was concealed. The $200,000 was recorded on the School’s
QuickBooks (as a loan to the Foundation), on the Foundation’s QuickBooks (as a loan payable to
the School), and on the Foundation’s QuickBooks as a loan to “Gemach GZYD” and, thereafter,
as a loan to “Loan Payable:O. Eise Loan:Gemach GZYD.” At trial, the state may have tried to
shift to a facilitation theory, but no crime was facilitated or promoted. Putting aside the state’s
wholesale reliance on QuickBooks records that the state’s own witness testified were plain
wrong, at the end of the 12 days, the School was whole, and the QuickBooks for both the School
and Foundation properly recorded the movement out and movement back in of the $200,000.
The “write-off” of the $200,000 “owed” by Mr. Eisemann to the Foundation was disconnected in
time from the 12-day loan, completed two months later by some unknown and forever
anonymous “financial technician” not named Osher Eisemann. Moreover, the state’s own proofs
demonstrated that any $200,000 “write-off” of Mr. Eisemann’s debt to the Foundation was offset
by a $200,000 increase in the loan account between the Foundation and “Loan Payable:O. Eise
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Loan:Bauman Loan.” In non-QuickBooks speak, the Foundation’s QuickBooks reflected that
the Foundation was owed $200,000 before the transaction charged in Count 3, and the
Foundation’s QuickBooks reflected that the Foundation was still owed $200,000 after the
transaction. The Foundation lost nothing.
The takeaway is clear: the jury returned a verdict on financial facilitation of criminal
activity and, thereby, misconduct by a corporate official, which was legally and factually
1
unsupportable. Mr. Eisemann was convicted of financial facilitation based on a $200,000
“theft” from the School designed to conceal that $200,000 or facilitate a $200,000 “theft” from
the Foundation, notwithstanding that the state proved no theft from the School, and
notwithstanding that nothing was concealed, and notwithstanding that no physical dollars ever
entered or exited a Foundation bank account during the transaction, and notwithstanding that
QuickBooks reflected that the Foundation was owed $200,000 before the transaction and the
same $200,000 after the transaction. A judgment of acquittal must be entered.
But the financial facilitation charge should never have even been before a jury. The
superseding indictment was returned based on plainly false testimony from the state’s “lead
investigator,” which was not only never corrected, but was proudly repeated to the second grand
jury. The result was a facially inconsistent superseding indictment that characterized the same
$200,000 as “public funds belonging to one or more public school districts in the State of New
Jersey” for purposes of Counts 2 and 4, and “private” funds for purposes of Count 3. Vartan
Cert., Exh. F pp. 3-6. The resulting jury instructions left jurors hopelessly confused and led them
to wrongly convict on Count 3 and, with that conviction, Count 5.
1
Misconduct by a corporate official (Count 5) required a predicate crime. See Vartan Cert., Exh. A pp. 29-30.
Because Mr. Eisemann was acquitted of all counts but financial facilitation of criminal activity, it was that crime
that must have served as the predicate crime for the jury.
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And juror confusion was compounded by the Court’s specific refusal to properly instruct
the jury. Financial facilitation requires a “first” crime. The superseding indictment identified
that first crime as theft by unlawful taking (Count 2), misapplication of entrusted property
(Count 4), or misconduct by a corporate official (Count 5). Id., p. 4. Misconduct by a corporate
official itself requires a predicate crime. The superseding indictment identified that predicate
crime as corruption of public resources (Count 1), theft by unlawful taking (Count 2), financial
facilitation (Count 3), or misapplication of entrusted property (Count 4). Id. p. 7. The jury
should have been instructed that it could not find Mr. Eisemann guilty of financial facilitation
unless it first found him guilty of Count 2 or Count 4, or, alternatively, Count 5, where the
predicate crime for Count 5 was a crime other than financial facilitation. Likewise, the jury
should have been instructed that it could not find Mr. Eisemann guilty of misconduct by a
corporate official unless it first found him guilty of Count 1, Count 2, or Count 4, or,
alternatively, Count 3, where the “first” crime for Count 3 was a crime other than misconduct by
a corporate official. The Court’s failure to properly instruct the jury sowed confusion, resulted in
convictions where there should have been none, and caused a verdict that is legally indefensible.
The remaining counts of the superseding indictment must be dismissed or, in the alternative, a
2
new trial must be granted on Counts 3 and 5.
STANDARD OF REVIEW
Mr. Eisemann brings this motion for a judgment of acquittal pursuant to R. 3:18-2 or, in
the alternative, for a new trial on Counts 3 and 5 pursuant to R. 3:20-1.
In accordance with R. 3:18-2, a court may “set aside a verdict of guilty and order the
entry of a judgment of acquittal” following the discharge of the jury. R. 3:18-2. The standard
2
Mr. Eisemann expressly preserves all issues raised pre-trial and during the trial for appeal, if necessary.
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for a motion for judgment of acquittal post-verdict is the same as it is at the close of the state’s
case. See, e.g., State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011) (granting post-trial
motion for acquittal and finding that state did not meet its burden beyond a reasonable doubt and
vacating conviction for receiving stolen property). “On a motion for judgment of acquittal, the
governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of
all of its favorable testimony and all of the favorable inferences which can reasonably be drawn
therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant
was guilty of the crime charged.” Id. (internal citations omitted). The motion must be granted
where, as here, the state has failed to prove any of the elements of the crime. See, e.g., State v.
Zeidell, 299 N.J. Super. 613, 619-22 (App. Div. 1997), rev’d on other grounds, 154 N.J. 417
(1998); see also State v. Anastasia, 356 N.J. Super. 534, 541 (App. Div. 2003) (“The State
having failed to prove the essential elements of the crime charged, defendant’s conviction must
be reversed and a judgment of acquittal entered.”); State v. Aitken, No. A-0467-10T4, 2012 WL
1057954, at *17 (N.J. Super. Ct. App. Div. Mar. 30, 2012) (“[W]e reverse the judge’s denial of
the motion for a judgment of acquittal, having determined that the State did not prove all the
elements of the offense.”).
In the alternative, Mr. Eisemann moves for a new trial on Counts 3 and 5, as the jury
verdict as to those counts was against the weight of the evidence, and a new trial is otherwise
required in the interest of justice. Rule 3:20-1 provides that “[t]he trial judge on defendant’s
motion may grant the defendant a new trial if required in the interest of justice. . . . The trial
judge shall not, however, set aside the verdict of the jury as against the weight of the evidence
unless, having given due regard to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a manifest denial of justice under
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the law.” The Appellate Division has clearly explained, “[A] defendant is entitled to a new trial
when such is ‘required in the interest of justice.’ The decision of whether to grant or deny a
motion for a new trial is left to the trial judge’s sound discretion.” See State v. Van Ness, 450
N.J. Super. 470, 495 (App. Div. 2017) (finding “more than sufficient grounds to conclude the
trial court erred in denying defendant’s motion for a new trial under Rule 3:20-1”).
ARGUMENT
POINT I.
A JUDGMENT OF ACQUITTAL MUST BE ENTERED
A. Mr. Eisemann’s Acquittals on Counts 2 and 4, which Included the $200,000,

Require Entry of a Judgment of Acquittal on Count 3.
Count 2 of the superseding indictment charged Mr. Eisemann with theft of “$979,000” of
“property of one or more public school districts.” Vartan Cert., Exh. F p. 3 (emphasis added).
Count 4 charged him with misapplication of “$979,000 in public funds belonging to one or more
public school districts.” Id., p. 6 (emphasis added). Mr. Eisemann was acquitted of both counts;
the jury found that he neither stole public money nor misapplied public money.
Count 3 charged Mr. Eisemann with financial facilitation of criminal activity based on
$200,000 “in funds paid [by the sending school districts] or donated.” Id., p. 4. But while Count
3 purposely refused to characterize the $200,000 as public money or private money, Counts 2
and 4 had already done so. The $200,000 charged in Count 3 was part of the “$979,000” in
“public” monies charged in Counts 2 and 4. Because Mr. Eisemann was acquitted of Counts 2
and 4, the jury determined that Mr. Eisemann did not steal or misappropriate $979,000 in public
monies, of which the $200,000 was a part. So, for purposes of Count 3, even though the state
refused to characterize the money as public or private, the jury’s verdict did. Based on the
verdict, the $200,000 could only be private money.
The trial evidence was unrebutted that private money is unrestricted money:
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DEFENSE: Private money can be spent however the school or the ra—or Mr.
Eisemann or I deem. Right? No restrictions.
PAGE: Yes.
Vartan Cert., Exh. E p. 204, ll. 2-5. And because private dollars come without restriction, the
state’s own “lead investigator” admitted, without hesitation or qualification, that if private dollars
funded the “criminal” transactions charged in Counts 1 through 4, then there was no crime:
DEFENSE: [Y]ou would agree with me that if there were private dollars
sufficient to pay for all of the transactions that the State calls
criminal, then there was no crime?
PAGE: That’s correct.
Id., p. 214, l. 23 through p. 215, l. 3. The Court too accepted Mr. Page’s conclusion, noting that
“everyone agrees” with it:
DEFENSE: Because there’s one person who seems to agree with me in all of
this, and that happens to be Tom Page, their lead detective. Tom
Page testified unequivocally that if private dollars were used, then
there was no crime. He said that multiple times. Private dollars
were used. There was no crime.
COURT: I think—I think everyone agrees with that.
DEFENSE: Okay. So, everybody agree—
COURT: From the evidence that I’ve—
DEFENSE: I—I—
COURT: —and how I have been educated on this issue.
Vartan Cert., Exh. B, p. 96, l. 17 through p. 97, l. 5. The acquittals on Counts 2 and 4, which
8
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included the $200,000, mean that the jury could only have convicted on Count 3 based on the
facilitation of $200,000 in private dollars, even though private dollars are without restriction, and
even though both the state and the Court (and “everyone”) agree that if private dollars were used,
then there was no crime. A judgment of acquittal must be entered.
B. Financial Facilitation of Criminal Activity Requires Proof of Two Crimes,

and the State Did Not Prove a “First” Crime.
“For a transaction to constitute an act of money laundering, the property involved in the
transaction must have been derived from criminal activity. Thus, the statute requires two
transactions, (1) the underlying criminal activity generating the property, and (2) the money-
laundering transaction where that property is either (a) used to facilitate or promote criminal
activity, or (b) concealed, or washed.” State v. Diorio, 216 N.J. 598, 622 (2014) (quotations and
citations omitted). The jury instructions recognized the “two transactions” requirement from
Diorio, requiring the state to prove beyond a reasonable doubt that:
(1) Osher Eisemann knowingly engaged in a transaction involving property;
(2) Osher Eisemann knew, or a reasonable person would have believed, that the property
was derived from criminal activity; [and]
(3) Osher Eisemann knew that the transaction was designed in whole or in part:
a. to conceal or disguise the nature, location, source, ownership or control of the
property derived from criminal activity; or
b. that Osher Eisemann’s intent was to facilitate or promote criminal activity.
Vartan Cert., Exh. A p. 20.
During the first motion for a judgment of acquittal, the Court and the state engaged in an
extended colloquy about the “two transactions” requirement and how the state’s proofs met—or,
really, failed to meet—that requirement:
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COURT: [M]y review of the law is that the money laundering requires two
transactions.
STATE: Yes.
COURT: It requires an underlying crime which generates the proceeds and
then subsequently the laundering of those criminal proceeds to—in
this particular case, I guess it would be to conceal. There’s other—
other elements, but I think we’re dealing with concealing. Right?
STATE: Yes.
COURT: What was the crime?
STATE: The crime is the theft from the school to pay down the debt and
done in a manner which concealed it.
COURT: How could it be a theft if he always intended to return it?
COURT: So, what is the crime? Is the crime a theft on the foundation, or is
the crime a theft on the school?
STATE: That—that he paid off a debt that he owed with money that wasn’t
his, and it was done in a manner to prevent it from making it seem
that way. This money had been owed—
COURT: Okay. Well, okay, so—but I get that. But then that’s a theft on the
foundation, and you haven’t charged that.
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COURT: [S]o, you’re saying there were two crimes?
STATE: Well, in order—as you said, in order for laundering to take place,
you have to have an underlying criminal action.
COURT: Yeah. What—what’s the underlying—yeah.
STATE: The underlying criminal action is the theft of $200,000 from the
school account. At the time that that—
COURT: Yeah, but that’s my problem. If you’re saying it’s a theft at the
time he took the money, but on the other hand you’re also saying
but he always intended to return it.
COURT: So—so, let’s—let’s analyze it from a crime or the theft of the
foundation. Where’s the money laundering?
STATE: But the—the theft is from—
COURT: The money laundering—the money laundering occurred before the
crime was committed, and that’s contrary to the statute.
Vartan Cert., Exh. B p. 118, ll. 14-24; p. 122, ll. 17-23; p. 123, ll. 20-22; p. 124, ll. 12-18; p. 125,
l. 17 through p. 126, l. 5; p. 126, l. 21 through p. 127, l. 3. The Court’s questions on the financial
facilitation count were well-placed. For the reasons argued by the Court, as well as the
additional reasons argued below, the state failed to prove a “first” crime under Diorio.
1. There Was No “First” Crime because the State Failed to Prove that
Private Dollars Are “Property of Another.”
The state clearly identified the “first” criminal transaction, i.e., the “underlying criminal
activity generating the property,” Diorio, 216 N.J. at 622: “The underlying criminal action is the
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3
theft of $200,000 from the school account.” Vartan Cert., Exh. B p. 125, ll. 24-25. The jury
instructions for theft required the state to prove beyond a reasonable doubt that the property
taken was “property of another.” Vartan Cert., Exh. A p. 17. “Property of another includes
property in which any person other than Osher Eisemann has an interest[,] which Osher
Eisemann is not privileged to infringe.” Id. p. 18 (emphasis added).
The testimony at trial was clear that private dollars from private donors were without any
restriction. See, e.g., Vartan Cert., Exh. D p. 41, ll. 1-4 (DEFENSE: But you have no obligation,
the Department of Education—I’ll be clear, the Department of Education does not regulate the
use of private dollars, correct? SADLER-WILLIAMS: Correct.); see also Vartan Cert., Exh. B
p. 249, ll. 18-24 (DEFENSE: And how about unrestricted funds? CORSO: Unrestricted funds
are those funds that come from monies received other than the public school sending district’s
tuition which could include loans, private school placements, private school—private placements
from other schools not public, from fundraising, from endowments, from investment income.);
see also id. p. 259, ll. 15-21 (DEFENSE: Does the Department of Education regulate the use of
these unrestricted private dollars? CORSO: No. DEFENSE: Do unrestricted funds include
private dollars? CORSO: Yes.). And, as noted above, because private dollars are unrestricted,
Mr. Page admitted that if private dollars funded the “criminal” transactions charged in Counts 1
through 4, then there was no crime:
DEFENSE: [Y]ou would agree with me that if there were private dollars
sufficient to pay for all of the transactions that the State calls
criminal, then there was no crime?
3
Theft by unlawful taking, which included the $200,000, was charged as Count 2 of the superseding indictment.
The jury acquitted Mr. Eisemann and the Foundation of Count 2. For the reasons argued in Part II infra, because
Mr. Eisemann was acquitted of the crime that the state identified as the “first” criminal transaction, a judgment of
acquittal must be entered on Count 3.
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Vartan Cert., Exh. E, p. 214, l. 23 through p. 215, l. 3.
The Court agreed:
DEFENSE: Because there’s one person who seems to agree with me in all of
this, and that happens to be Tom Page, their lead detective. Tom
Page testified unequivocally that if private dollars were used, then
there was no crime. He said that multiple times. Private dollars
were used. There was no crime.
COURT: I think—I think everyone agrees with that.
DEFENSE: Okay. So, everybody agree—
COURT: From the evidence that I’ve—
DEFENSE: I—I—
COURT: —and how I have been educated on this issue.
Vartan Cert., Exh. B, p. 96, l. 17 through p. 97, l. 5. “Everyone agrees” with good reason—
because the state offered no evidence at trial that private dollars received by the School or
Foundation were restricted in any way or came with any limitations that Mr. Eisemann “was not
privileged to infringe.” Vartan Cert., Exh. A p. 18. No donor testified to any restriction. No
pledge card was admitted into evidence. And no limitation was included in the “memo” line of
any check. Private dollars could be used by Mr. Eisemann however he chose, and the state
explicitly said so:
PAGE: Yes.
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Vartan Cert., Exh. E p. 204, ll. 2-5. The state offered no witness from the School to the contrary.
There was no one who testified that Mr. Eisemann stole donated dollars from the School. There
was no one who testified that Mr. Eisemann was not permitted to loan $200,000 in private
dollars from the School to the Foundation to be loaned to GYZD. There was no one who
testified that the loan was secreted, hidden, or concealed. In fact, the state’s evidence showed the
opposite. Unknown bookkeepers, unidentified “financial technicians,” and the never revealed
“Admin” were all aware of the loan because they recorded it in the QuickBooks of the School
and Foundation. The state alleges a theft without testimony from any victim.
The discussion of private dollars is of special significance in the context of the financial
facilitation count. Count 3, as charged, is an anomaly. Whereas Count 1 charged corruption of
“public funds,” Count 2 theft of property of “one or more public school districts,” and Count 4
misapplication of “public funds belonging to one or more public school districts,” Count 3
affirmatively disclaimed that the $200,000 was public money. Vartan Cert., Exh. F. The
superseding indictment characterized the $200,000 as “funds paid or donated to a private school
for the handicapped.” Id. p. 4 (emphasis added). The state embraced that language during oral
argument, stating: “I also want to say, Your Honor, both before the grand jury and this jury, the
State put forth evidence that Count 3 referred to both—well, it was not necessarily public money
but money donations from outside sources.” Vartan Cert., Exh. G p. 26, ll. 17-21. The trial
testimony was likewise unequivocal:
DEFENSE: So how do you know that the $200,000 that you testified to before
was school money? That it was tuition money?
PAGE: I never said it was tuition money.
DEFENSE: So you don’t know what it was. It could have been private dollars?
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PAGE: It was—it came out of the school account.
DEFENSE: It came out of a school account.
PAGE: Yes.
DEFENSE: But that’s not my question.
PAGE: Yeah. It could—
DEFENSE: Because you understand—let me ask it this way. You understand,
based upon everything that we’ve seen today, that all of these
school accounts had tuition money coming in, and private money
coming in. Correct?
DEFENSE: And private money is without restriction. Correct?
PAGE: Yes.
DEFENSE: Okay. So my question is, what did you do, if anything, to
determine whether the $200,000 that you testified to was tuition
money or private money without any restriction?
PAGE: I didn’t make that determination.
DEFENSE: You didn’t even consider it?
PAGE: No.
Vartan Cert., Exh. E p. 203, l. 7 through p. 204, l. 12.
The reason that the state refused to characterize the $200,000 in Count 3 is obvious: to
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multiply the state’s opportunities for a conviction. But what may have worked before the jury,
now requires entry of a judgment of acquittal before this Court. Private funds are not “property
of another.” See, e.g., Vartan Cert., Exh. E p. 204, ll. 2-5 (DEFENSE: Private money can be
spent however the school or the ra—or Mr. Eisemann or I deem. Right? No restrictions.
PAGE: Yes.). The state’s intentional decision not to prove that the $200,000 was public money
and, related, the unrebutted testimony that private dollars could be spent however Mr. Eisemann
chose, means that the state never proved that the $200,000 was the School’s property that Mr.
Eisemann was “not privileged to infringe.” Vartan Cert., Exh. A p. 18. There was no theft from
the School, and, therefore, there was no “first” criminal transaction under Diorio. A judgment of
acquittal must be entered.
2. There Was No “First” Crime because the State Failed to Prove

Permanent Deprivation.
The state failed to prove a theft from the School for a second reason: the $200,000 was
outside of the School for just 12 days. There was no permanent deprivation.
The jury instructions for theft required the state to prove beyond a reasonable doubt that
“Osher Eisemann’s purpose was to deprive the other person of movable property.” Id. p. 17.
The term “‘deprive’ specifically means: (1) to withhold or cause to be withheld property of
another permanently or for so extended a period as to appropriate a substantial portion of its
economic value, or with purpose to restore only upon payment of reward or other compensation;
or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will
recover it.” Id. p. 18. The state’s own witness made clear Mr. Eisemann’s purpose in making
the $200,000 loan, and it was not to deprive the School of anything. It was the precise opposite.
Mr. Eisemann’s purpose was to position the Foundation to collect on a loan previously made to
Taz Apparel. Jonathan Rubin testified:
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DEFENSE: And [Mr. Eisemann] told you that he was involved in a loan of
some sort; am I correct?
RUBIN: Correct, sir.
DEFENSE: And isn’t it also a fact that he told you that he might be utilizing
you as a nominee to collect on that loan, or your company?
RUBIN: Correct. That was the whole point of—
DEFENSE: That was the whole point of it, correct?
RUBIN: That was the whole point. He said he couldn’t, due to his position
or his personality, he couldn’t chase after people for money, and
therefore he wanted to use me as a nominee.
DEFENSE: And at the time that all this happened, okay, it was your
understanding that GZYD might be utilized as a nominee to collect
on this indebtedness; am I correct?
RUBIN: Yes, sir, that was the whole point.
Vartan Cert., Exh. C p. 49, ll. 11-22; p. 50, ll. 20-24. The less than two weeks that the money
was outside of the School demonstrates, clearly, that Mr. Eisemann’s purpose was not to deprive,
but rather to collect. The money was not withheld “permanently.” It was not withheld with
“purpose to restore only upon payment of reward.” It was not “disposed” of in a manner to make
its recovery “unlikely.” And 12 days cannot be called “so extended a period as to appropriate a
substantial portion of its economic value.” Vartan Cert., Exh. A p. 18. Indeed, $200,000 was
loaned by the School on March 13, 2015, and the full $200,000 was returned to the School on
March 25, 2015. New Jersey caselaw is clear that a loan made and fully repaid in 12 days does
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not amount to permanent deprivation. See, e.g., State v. South, 28 N.J.L. 28, 29 (Sup. Ct. 1859)
(larceny requires intent “of permanently depriving the owner of his property” … the intent “must
be to deprive the owner, not temporarily but permanently, of his property”); State v.
Kommendant, No. A-2101-05T1, 2006 WL 3025601, at *3 (N.J. Super. Ct. App. Div. Oct. 26,
2006) (reversing conviction for theft where state failed to prove beyond a reasonable doubt that
high school coach intended to permanently deprive the high school of a fence where he removed
it from the property, kept it during the summer, and returned it the day after he learned his
contract had not been renewed for the following school year); State v. Batiz, No. A-2070-10T3,
2011 WL 4104069, at *2 (N.J. Super. Ct. App. Div. Sept. 16, 2011) (reversing conviction where
the state failed to prove removal was intended to “be permanent, for an extended period of time,
or even intended to make it unlikely” that property would be recovered); Meissner v. Aetna Cas.
& Sur. Co., 195 N.J. Super. 462, 466 (Law. Div. 1984) (in action against car insurance company,
fifteen-year-old son’s use of mother’s automobile, without her permission, was not a “theft”
under the comprehensive coverage provisions of her automobile policy where there was no
indication that the son took his mother’s car for anything other than a “joy ride,” and finding no
felonious intent to permanently deprive).
A judgment of acquittal must be entered.
C. Public Dollars Can Be Loaned, and the Specific Loan between the School and
the Foundation Was Known to and Approved by the School’s Independent
Auditor.
The second element of financial facilitation required the state to prove beyond a
reasonable doubt that Mr. Eisemann “knew, or a reasonable person would have believed, that the
[$200,000] was derived from criminal activity.” Vartan Cert., Exh. A p. 20. The trial evidence,
including testimony from the state’s witnesses, proved the opposite.
If the $200,000 was private money, then the only evidence adduced at trial was that
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private money was unrestricted and could be spent however Mr. Eisemann chose. Mr. Page
testified:
PAGE: Yes.
Vartan Cert., Exh. E p. 204, ll. 2-5. If the $200,000 was private, then there was no testimony or
documentary evidence that its use was criminal or Mr. Eisemann would have known or ever
believed its use to be criminal.
And if the $200,000 was public money, the state likewise failed to prove the second
element of financial facilitation beyond a reasonable doubt. The $200,000 transaction was
recorded in the School’s QuickBooks as a loan to the Foundation, and the repayment was
included in the calculation of the loan balance between the School and Foundation disclosed in
the School’s 2015 audit report and on which the School’s independent auditor, Harry Krystalla,
imputed interest. See Vartan, Cert., Exh. H; see also Vartan Cert., Exh. D p. 239, l. 22 through
p. 240, l. 1 (KRYSTALLA: Yes. I mean, during the audit we calculated the interest component
[on the loan balance]. So, it was changed. You know, we had the number, and we tacked on the
interest component, that number changed as a result of the interest component.). Under the plain
language of the Department of Education regulations, public funds can be loaned, and every trial
witness with knowledge, including most notably, Mr. Krystalla, said so.
DEFENSE: This is your words; right? These are your words, your affidavit?
PAGE: Yes.
DEFENSE: “Indeed, the New Jersey Department of Education allows such
loans and specifies the procedures that must be followed if the
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PSSD wishes to loan money.” So, you wrote—you swore out
before a Superior Court Judge that it’s A-okay to loan money;
correct?
PAGE: Yes.
DEFENSE: A-okay for the SCHI School to loan money. That’s what you said
before a Superior Court Judge; correct?
PAGE: Yes.
DEFENSE: Okay. And there’s nothing in there about a related party
transaction or a preapproval. There’s nothing in there about that;
right?
PAGE: No, sir.
DEFENSE: You said it’s okay without restriction; right?
PAGE: Yes.
DEFENSE: That’s what you swore out.
PAGE: Yes.
Vartan Cert., Exh. E p. 185, l. 7 through p. 186, l. 5.
DEFENSE: So this particular provision, 18.4(g), allows tuition dollars to be
loaned as an allowable cost?
WILLIAMS: It does.
Vartan Cert., Exh. D p. 17, ll. 8-10.
DEFENSE: Mr. Corso, moving on to a different topic, can APSSDs loan
tuition dollars?
CORSO: Yes, they can.
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DEFENSE: And is that provided for in the regulations?
CORSO: It is.
DEFENSE: And I’d like to go back to the regulations and look at 18.4G. And
if we just look at the beginning of the provision, it reads, “An
approved private school for students with disabilities that loans
funds to any party.” Do you see where it says that?
CORSO: I do.
DEFENSE: Mr. Corso, how did the Department of Education interpret this
regulation while you were assistant commissioner?
CORSO: The Department’s interpretation while I was the assistant
commissioner said that monies can be loaned as long as they are
not—they were not part of the public school sending district tuition
calculation.
DEFENSE: And Mr. Corso, did the loan require preapproval from the
Department?
CORSO: No, it did not.
DEFENSE: Did the loan need to be related to the programmatic needs of the
APSSD?
CORSO: No, it did not.
DEFENSE: All right. And I just want to be clear, does the regulation provide
that loans can be provided to any party?
CORSO: Yes.
DEFENSE: And are there any other restrictions on loans in this paragraph?
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CORSO: No.
Vartan Cert., Exh. B p. 250, l. 10 through p. 251, l. 16.
But the most important testimony concerning loans came from Harry Krystalla. Mr.
Krystalla was SCHI’s constant companion and guide since the School’s founding in 1995. He
was responsible for every audit for the School from 1995 through 2015. Although paid by the
School, he was independent of it. Effectively, he was an agent of the Department of Education
charged with helping to enforce a regulatory scheme that was complex enough to cause
confusion even among those within the Department responsible for its enforcement. See, e.g.,
Vartan Cert., Exh. D p. 94, ll. 4-5 (STATE: Are you independent of the school?
KRYSTALLA: Yes.). Mr. Krystalla advised the School on how to comply with the regulations,
and the School followed his advice. Well prior to the $200,000 loan, Mr. Krystalla had
conditioned the School that loans, including loans from restricted funds, were acceptable. He
testified that restricted funds were loaned to complete an alternative energy project:
KRYSTALLA: That transaction was that the school lent Green Pea Energy money
in order that Green Pea Energy install solar panels on the roof of
the school.
STATE: Okay. And do you know when that loan was made?
KRYSTALLA: Several years before this. I’d have to refresh my memory on the
exact year.
STATE: Okay. Do you know if that loan was made out of restricted or
unrestricted funds?
KRYSTALLA: It was—it had to be a combination of both. I know there was
simultaneous with—with this transaction $1 million was borrowed,
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which we considered unrestricted, to fund the majority of this. But
it—theoretically, it must—it might have included some restricted
component at that point in time for a period of time other than that
$1 million.
Id. p. 139, ll. 1-16. More significantly, he testified that, for years, monies were loaned between
the School and Foundation with his knowledge and consent:
KRYSTALLA: I believe in the prior two years there was some loan activity from
the school to the Foundation on a smaller scale in those two years
prior to this and that at June 30th it was paid off and didn’t appear.
So, it wasn’t on the financial statement in those two years. But in
’13 it did appear as outstanding on June 30th.
Id., p. 148, l. 24 through p. 149, l. 4. And Mr. Krystalla had no misgivings about issuing an
unqualified audit report that included the loan balance between the School and Foundation on the
financial statements because “there was a history of a relationship with the Foundation.” Id. at p.
151, ll. 7-8. More importantly, he had no misgivings because the Department of Education
regulations allow public funds to be loaned:
STATE: Okay. Are loans allowable from the restricted funds?
KRYSTALLA: There’s nothing to prevent it, to my knowledge.
DEFENSE: An approved private school for students with disabilities, an
APSSD, can loan tuition dollars; correct?
KRYSTALLA: Can loan, yes.
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DEFENSE: Loans are allowable from restricted funds. You testified about that
on direct examination; is that correct?
KRYSTALLA: There’s nothing to my knowledge that prevents you from doing
that.
DEFENSE: So, Mr. Krystalla, I agree with you. There’s nothing that prevents
loans of restricted funds; right? It’s right in the regulation.
KRYSTALLA: Per the administrative code, yes.
Id. at p. 145, ll. 10-12; p. 190, ll. 21-24; p. 230, ll. 9-13; p. 230, ll. 20-23.
Mr. Krystalla did not keep his interpretation of the regulations to himself. The annual
audit reports included a standalone section that required him to disclose “bookkeeping and
accounting procedures” contrary to the regulations. Mr. Krystalla never included the loans
between the School and Foundation in that section, sending the clear and unambiguous message
to Mr. Eisemann, SCHI, and the world that public tuition dollars could be loaned. Mr. Krystalla
admitted as much:
DEFENSE: So, aren’t you implicitly saying in every single audit that you filed
that loans—you’re telling the school loans are okay; right?
KRYSTALLA: All loans?
DEFENSE: Well, you’re telling them that the loan that was disclosed on the
balance sheet is okay; right?
KRYSTALLA: There’s nothing in the administrative code that prevents them from
making a loan.
DEFENSE: And you told them that in 2012, 2013, 2014, and 2015; right?
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KRYSTALLA: Yes.
DEFENSE: Because you never [disclosed the loans as contrary to the
regulations].
KRYSTALLA: Correct.
DEFENSE: So, absolutely you implicitly at a minimum told the school that
these loans are okay; right? It’s in your audit report.
KRYSTALLA: Yeah, I didn’t—I didn’t comment on them, yes.
DEFENSE: You didn’t comment, and you had the opportunity to comment in
multiple places; right?
KRYSTALLA: Yes.
Id. at p. 235, ll. 1-13; p. 236, l. 21 through p. 237, l. 2.
With that trial testimony as predicate, the state clearly failed to prove that Mr. Eisemann
“knew, or a reasonable person would have believed, that the [$200,000] was derived from
criminal activity.” Vartan Cert., Exh. A p. 20. The $200,000 was recorded as a loan from the
School to the Foundation. It was made after the School, Mr. Eisemann, and the world witnessed
Mr. Krystalla file and sign-off on annual audit reports, for years, that disclosed significant loan
balances between the School and Foundation without identifying those loan balances as a
violation of the regulations. Given Mr. Krystalla’s constant professional advice, it was
impossible that Mr. Eisemann knew, or any reasonable person would have believed, that a 12-
day loan from the School to the Foundation was criminal. See, e.g., United States v. Olazabal,
610 F. App’x 34, 36 (2d Cir. 2015) (affirming grant of new trial where defendant relied in good
faith on his accountant’s advice and therefore “d[id] not possess the unlawful intent required to
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find him guilty of tax fraud”); United States v. Wilson, 630 F. App’x 422, 429 (6th Cir. 2015)
(noting that accountant’s testimony may establish good faith defense); United States v. Kottwitz,
627 F.3d 1383, 1384 (11th Cir. 2010) (reliance on accountant who had authority to review and
reclassify some entries in the corporate books basis for good faith defense).
The state’s own summary chart, S-71, further makes the point. Over the defense’s
objection, S-71 included an additional, $30,000 transaction. Allegedly, the money originated
from the School, was deposited into Mr. Eisemann’s bank account, and was used to make a
payment to the Internal Revenue Service. That alleged transaction was not charged as a crime.
The grand jury found the state’s charging decision curious, and asked: “$230,000 came out.
Why aren’t we focusing on the $30,000?” Vartan Cert., Exh. I p. 35, ll. 11-12. The following
colloquy ensued:
STATE: Detective, you’re still under oath. One of the Grand Jurors had a
question regarding this $30,000 pass [sic] of the transaction. I
believe the juror’s question was why isn’t there a focus on that.
What is your understanding of that transaction and whether it is
relevant to this investigation?
PAGE: In terms of this investigation, it wasn’t relevant because they still
had put that $30,000 off as a loan to Osher. He just hasn’t paid it.
Id., p. 35, l. 24 through p. 36, l. 7. Mr. Page’s response is as astounding as it reads. An alleged
$30,000 loan from the School to the Foundation to Mr. Eisemann that was never repaid is not
criminal according to the state, but a $200,000 loan from the School to the Foundation to GZYD
made and repaid in 12 days is not only criminal, but the predicate crime for a financial
facilitation conviction. If the Attorney General himself cannot meaningfully differentiate
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between criminal and non-criminal loans in the context of the Department of Education
regulations, how could Mr. Eisemann?
Finally, to the extent the interpretation of the Department of Education regulations was
left to the jury, Mr. Eisemann’s conviction cannot stand. See, e.g., Kane v. Hartz Mountain
Indus., Inc., 278 N.J. Super. 129, 144 (App. Div. 1994), aff’d, 143 N.J. 141, (1996) (finding
reversible error where trial court failed to “instruct the jury as to which of the regulations should
apply” . . . “it was for the judge to interpret the regulations, and to explain how to apply them to
the facts as the jury might find them to have existed at the time. This the judge failed to do.”);
State v. Grimes, 235 N.J. Super. 75, 90 (App. Div. 1989) (reversing conviction and dismissing
indictment where trial court left the interpretation of unsettled law to the jury). Grimes is
particularly instructive. At issue in that case was whether certain actions of a constable were
authorized under the law, and whether the defendant constable took certain actions in a “public”
or “private” capacity. Rather than instruct the jury as to the governing statutes, the trial court
permitted opinion testimony regarding local law. Under those circumstances, the Appellate
Division was quick to find, “[t]he conviction has to be reversed.” Id. at 81. The Appellate
Division further explained, “[i]n order fairly to expose a public officer to prosecution for
committing an unauthorized act, there must be an available body of knowledge by which the
officer had the chance to regulate his conduct. The law must give a person of ordinary
intelligence fair warning what conduct is proscribed, so that he may act accordingly.” Id. at 89-
90 (internal citations omitted). Where the law was “so uncertain that it was presented to the jury
as a matter of disputed fact,” . . . “[t]hat degree of uncertainty shows that the law does not, in this
area, give a person of ordinary intelligence fair warning what conduct is proscribed. In those
circumstances, it is fundamentally unfair to subject defendant to a criminal prosecution.” The
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same is true here, and as in Grimes, Mr. Eisemann’s conviction must be reversed.
D. Financial Facilitation of Criminal Activity Requires Two Crimes, and the

State Did Not Prove Concealment.
Under Diorio, the state had to prove a “second” crime, “the money-laundering transaction
where [the criminally-derived] property is either (a) used to facilitate or promote criminal
activity, or (b) concealed, or washed.” 216 N.J. at 622.
The state’s original theory, at least before the grand jury and in the superseding
indictment, was concealment. See Vartan Cert., Exh. F. pp. 4-5 (charging defendants with
transferring “$75,000 or more in funds paid or donated to a private school for the handicapped,
as identified to the Grand Jury, knowing that it was stolen or misapplied, to one or more entities
or persons for the purposes of concealing or disguising the nature, location, source, ownership or
control of the funds….”) (emphasis added). Despite concealment being clearly charged, the state
seemed to try at times during the trial to change its theory to facilitation. However, during the
defense’s first motion for judgment of acquittal, the state remained confused as to its theory and
what it had proved (or failed to prove):
COURT: [M]y review of the law is that the money laundering requires two
transactions.
STATE: Yes.
COURT: It requires an underlying crime which generates the proceeds and
then subsequently the laundering of those criminal proceeds to—in
this particular case, I guess it would be to conceal. There’s other—
other elements, but I think we’re dealing with concealing. Right?
STATE: Yes.
Vartan Cert., Exh. B p. 118, ll. 14-24.
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If the “second” crime was concealment as the state agreed with the Court, then the state
failed to offer any evidence that the $200,000 transaction was designed to conceal. The only
testimony on the purpose of the $200,000 transaction came from the state’s own witness,
Jonathan Rubin. Mr. Rubin did not testify that Mr. Eisemann came to him and GZYD for the
purpose of concealing a theft from the School or to launder criminal proceeds or to hide
something from the School’s independent auditor. Any such claim would have been inconsistent
with Mr. Rubin’s description of Mr. Eisemann as a “secular saint.” Vartan Cert., Exh. C p. 52,
ll. 5-6. Mr. Rubin’s testimony was the opposite:
DEFENSE: And [Mr. Eisemann] told you that he was involved in a loan of
some sort; am I correct?
RUBIN: Correct, sir.
DEFENSE: And isn’t it also a fact that he told you that he might be utilizing
you as a nominee to collect on that loan, or your company?
RUBIN: Correct. That was the whole point of—
DEFENSE: That was the whole point of it, correct?
RUBIN: That was the whole point. He said he couldn’t, due to his position
or his personality, he couldn’t chase after people for money, and
therefore he wanted to use me as a nominee.
DEFENSE: And at the time that all this happened, okay, it was your
understanding that GZYD might be utilized as a nominee to collect
on this indebtedness; am I correct?
RUBIN: Yes, sir, that was the whole point.
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Id. p. 49, ll. 11-22; p. 50, ll. 20-24. As well, the state’s own exhibits are inconsistent with
concealment. The loan was disclosed on the School’s QuickBooks, see Vartan Cert., Exh. H,
and on the Foundation’s QuickBooks, see Vartan Cert., Exh. J. In fact, the state’s “smoking
gun” evidence, the audit trail from the Foundation’s QuickBooks labeled S-90, makes clear that
that the Foundation recorded the $200,000 as a loan to “Gemach GZYD” and, thereafter, as a
loan to “Loan Payable:O. Eise Loan:Gemach GZYD.” Nothing was hidden. Nothing was
secreted. Nothing was concealed. A judgment of acquittal must be entered.
E. Financial Facilitation of Criminal Activity Requires Two Crimes, and the

State Did Not Prove Facilitation.
Even had the state charged and attempted to prove facilitation, the state also failed to
carry its burden. Specifically, the state had to prove “that Osher Eisemann’s intent was to
facilitate or promote criminal activity.” Vartan Cert., Exh. A p. 20. That purported “criminal
activity” was a theft from the Foundation through a “write-off” of $200,000 allegedly owed by
Mr. Eisemann to the Foundation. The state failed to show a theft from the Foundation, failed to
show that Mr. Eisemann owed any money to the Foundation, failed to show that there was any
connection between the $200,000 “circular” transaction and the “write-off,” two months later, of
Mr. Eisemann’s purported debt, and failed to show that it was Mr. Eisemann who himself made
the “criminal” entries in QuickBooks or directed that they be made.
The state’s starting point cannot be forgotten. The state alleged a theft from the
Foundation based not on any witness testimony, but upon an interpretation of the QuickBooks
for the School and Foundation, which the state’s own witness declared were wrong and
unreliable, by someone who had no role in maintaining those records and was not designated as
an expert. The controller for the School and the Foundation testified:
DEFENSE: Okay. But are the school’s QuickBook[s] records today materially
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different than they were in June of 2016?
EHRLICH: Very different, yes.
DEFENSE: The school’s records from that time [2011 through 2015] were
inaccurate; correct?
EHRLICH: Correct.
DEFENSE: They didn’t accurately depict the school’s actual accounts; right?
EHRLICH: Correct.
Vartan Cert., Exh. Q p. 61, ll. 12-15; p. 60, ll. 4-9. The School’s QuickBooks were wrong. And
the Foundation’s QuickBooks were also wrong. Mr. Fredrick was forced to admit that there
were material inconsistencies between the Foundation’s QuickBooks and the audited financials
prepared by the Foundation’s certified public accountant, inconsistencies that he chose to ignore
rather than investigate:
DEFENSE: Did you pick up the phone and call Phillip Stern and say, “Mr.
Stern, you’re a CPA. You put your name on the dotted line. You
put your reputation on the dotted line. You’re saying that the
foundation owes Osher Eisemann $321,750. Can you tell me how
you came to that number?” Did you have that conversation?
FREDRICK: I did not.
...
DEFENSE: So here you have the foundation loaning the school $1.3 million.
Here you have school loaning the foundation $1,083,000. Do you
see that?
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FREDRICK: Yes.
DEFENSE: And you didn’t do anything to in any way reconcile these numbers,
did you?
FREDRICK: No. That’s not correct.
DEFENSE: Do you have paperwork, documents, work papers, anything that
you did to reconcile those numbers?
FREDRICK: No paper documents. No, sir.
Id. p. 172, ll. 9-15; Vartan Cert., Exh. B p. 30, ll. 13-23. The state’s only proof of theft from the
Foundation came through the testimony of Mr. Fredrick who read from “materially” incorrect
QuickBooks records with no firsthand (or other) knowledge of what he was reading. There was
no attempt by the state to explain why Mr. Fredrick was justified in relying upon QuickBooks.
No witness from the Foundation testified to a theft. There was nothing but a slipshod
investigation and “trust us.”
But the state’s proofs were still more absurd. The state had to show that it was “Osher
Eisemann’s intent … to facilitate or promote criminal activity.” Vartan Cert., Exh. A p. 20
(emphasis added). The alleged theft from the Foundation was not Mr. Eisemann absconding
with cash from a Foundation safe. It was theft through manipulation of QuickBooks records.
Yet the state offered no evidence that Mr. Eisemann had login credentials for QuickBooks, or
knew how to himself operate QuickBooks, or was the elusive “Admin,” or directed any
bookkeeper, “financial technician,” “Admin,” or anyone to make changes in QuickBooks. There
was literally no evidence. The changes in QuickBooks could have been made by any one of the
hundreds of employees who work for the School and the Foundation. And because the state
offered no evidence from any bookkeeper, there was no explanation of what any of the loan
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accounts meant. There was no testimony about what “Gemach GZYD” meant, or what “Loan
Payable:O. Eise Loan:Gemach GZYD” meant, or what “Loan Payable:O. Eise Loan:Birchas
Chaim Loan” meant, or what “Loan Payable:O. Eise Loan:Bauman Loan” meant, or what “Loan
Payable:O. Eise Loan:osher 022” meant. All the state offered was pure conjecture.
The facilitation theory would suffer from myriad legal problems as well. First, the state
proffers that the same $200,000 was stolen first from the School, and then, two months later,
from the Foundation. That is a legal impossibility. Second, the “first” crime (theft from the
School) was temporally disconnected from the “second” crime (theft from the Foundation) by
months. A conviction on financial facilitation cannot stand where the “two transactions” from
Diorio are so separated in time. Third, and most importantly, there was no theft from the
Foundation. Indeed, no money ever touched a Foundation account. Even had there been a
“write-off” of Mr. Eisemann’s debt to the Foundation, it was offset by an increase in the amount
due to the Foundation from “Loan Payable:O. Eise Loan:Bauman Loan.” At the end of the
“circular” transaction, the Foundation was whole. The $200,000 had been recorded as a loan
from the School to the Foundation, but upon repayment to the School, the obligation was
cancelled on the Foundation’s QuickBooks. At the end of the facilitation transaction, the
Foundation was likewise whole. According to QuickBooks, the Foundation was owed $200,000
from “Loan Payable:O. Eise Loan:osher 022” before the transaction and nothing from “Loan
Payable:O. Eise Loan:Bauman Loan.” After the transaction, the Foundation was owed $200,000
from “Loan Payable:O. Eise Loan:Bauman Loan” and $200,000 less from “Loan Payable:O.
Eise Loan:osher 022.” No theft from the Foundation was charged, but in any event, there was no
theft from the Foundation. A judgment of acquittal must be entered.
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F. A Judgment of Acquittal Must Be Entered on Count 5 because the

Foundation Was Acquitted on All Charges.
Count 5 charged Mr. Eisemann with misconduct by a corporate official for his use of the
Foundation to corrupt public resources, steal public dollars, misapply public dollars, and commit
financial facilitation. See Vartan Cert., Exh. F p. 7. The jury acquitted Mr. Eisemann of the first
three predicate crimes and the Foundation of all crimes. The verdict on Count 5 can be read in
only one way then: Mr. Eisemann used the Foundation, which itself committed no crime, to
commit the crime of financial facilitation, and did so even though the $200,000 transaction
charged in Count 3 never passed through or touched any Foundation bank account in any way.
According to S-71, the $200,000 moved from the School, to GZYD, to Taz Apparel, to Mr.
Eisemann, and back to the School within 12 days; the Foundation was not involved. The jury’s
verdict on Count 5 is unsupported by the evidence and cannot stand.
Financial facilitation requires proof of concealment or facilitation. The Foundation
played a role in neither. If the $200,000 transaction was designed to conceal, the concealment
was self-contained in the “circular” flow of money, and happened without the involvement of the
Foundation. The crime, if committed, began and ended without the Foundation. If instead the
$200,000 transaction was designed to facilitate criminal activity, the Foundation was neither co-
conspirator nor victim. The jury acquitted the Foundation of Count 3. And although the
transaction was recorded on the Foundation’s QuickBooks as a loan from the School, the loan
obligation was canceled when the $200,000 was returned to the School on March 25, 2015.
Likewise, the “write-off” of Mr. Eisemann’s debt to the Foundation, if it existed, was offset by
an increase in the amount due to the Foundation from “Loan Payable:O. Eise Loan:Bauman
Loan.” The state actually highlighted that fact in its closing argument:
STATE: Now, from what little I learned about accounting during this case, I
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know that you just can’t take $200,000 off of something. $200,000
needs to be put back somewhere. So, what happens? It is put back
somewhere. It’s put back under an account—Natalie, if you could
bring up—(inaudible). That’s it. … $200,000 you will have with
you in the jury room, even if it’s not loading with us today. That
was used—that was used to pay down the debt that you saw. It
was then moved to another part of the books. And what you’re
going to see when you look at those is an entry titled Bauman loan
on the same date, 3/25/15, and $200,000 is added to that balance.
Now the books are square, now they’re clear.
Vartan Cert., Exh. G p. 189, l. 12 through p. 190, l. 10. Before the transaction charged in Count
3, the Foundation was owed $200,000 and after the transaction the Foundation was still owed
$200,000, albeit by “Loan Payable:O. Eise Loan:Bauman Loan.” There was no loss to the
Foundation. Again, if the crime of financial facilitation was committed, it began and ended
without the Foundation.
There is another, related point. The jury instructions for misconduct by a corporate
official required the state to prove beyond a reasonable doubt that “Osher Eisemann used,
controlled or operated [the Foundation] for the furtherance or promotion of any criminal object.”
Vartan Cert., Exh. A p. 29 (emphasis added). There was no evidence—none—that it was Mr.
Eisemann who maintained the QuickBooks for the Foundation, had access to the Foundation’s
QuickBooks, was responsible for any of the entries in S-90 (or anywhere), or directed any
bookkeeper, “financial technician,” or “Admin” to make the entries in S-90 or any entries. The
state offered no testimony from the Foundation’s controller who, of course, testified at trial, from
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Mr. Seigel, who also testified at trial, or any witness that Mr. Eisemann used or directed the use
of the Foundation’s QuickBooks or even had the necessary login credentials. A judgment of
acquittal must be entered.
POINT II.
A MOTION FOR A NEW TRIAL MUST BE GRANTED
A. The Convictions on Counts 3 and 5 Are Against the Weight of the Evidence.
For all of the reasons argued in Part I supra, the jury’s verdict on Counts 3 and 5 is
against the weight of the evidence. Without restating those arguments, Mr. Eisemann was
convicted of financial facilitation and misconduct by a corporate official even though the state
refused to prove, and did not prove, that the $200,000 charged in Count 3 was public money, that
the only evidence about private money was that it is unrestricted, that the evidence was
unrebutted that public money can be loaned and that the School and Mr. Eisemann were told so
by their independent auditor who had worked with the School for 20 years, that the state’s core
proofs were based on QuickBooks records that the state’s own witness testified were wrong, and
that there was no evidence that Mr. Eisemann himself had access to or directed that any entries
be made in QuickBooks—ever.
Without exaggeration, Mr. Eisemann was convicted on Counts 3 and 5 based on a 12-day
loan of $200,000 recorded as a loan from the School to the Foundation, whose source was never
proved, although nearly certainly private dollars, was never concealed, left the School and the
Foundation whole, and was accounted for in QuickBooks by someone not Mr. Eisemann who the
state either never identified or refused to produce. The convictions are against the weight of the
evidence.
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B. The Jury Instructions Were Wrong.
The jury instructions were wrong.
The instructions for Count 3 read, “As to the charge of Financial Facilitation of Criminal
Activity, the State alleges that the property used by the Defendant was funds or money belonging
to the School for Children with Hidden Intelligence.” Vartan Cert., Exh. A p. 21. But that same
$200,000 was twice defined specifically—and differently—a few pages before and a few pages
later in the jury instructions. Count 2 defined the same $200,000 as “tuition money paid by
various school districts to the School for Children with Hidden Intelligence for the purpose of
educating special needs students from those districts.” Id. at 18. Count 4 included the same
definition of the same $200,000. See id. p. 26. The jury was left to work out for themselves why
the same $200,000 was public money for purposes of Counts 2 and 4, but something different for
purposes of Count 3. And jurors were obviously confused:
COURT: [T]he jury has been deliberating all day. This is Monday, February
25th. And it is now 10 minutes to 4 and the jury has a question,
which we are marking as what? While that’s being marked, I’ll
read the question into the record. “In Exhibit C-2,” which is the
jury charge, “page 14, paragraph 3, line 7 calls out $779,000 of
tuition money. Where was this money derived from given that
Count 2, page 18, line 2 reads, ‘Tuition money totaling $979,000,’
as well as Count 4, page 26, line 3 reads, ‘Tuition money totaling
$979,000’”?
Vartan Cert., Exh. K p. 4, ll. 5-16.
There should have been no confusion. The superseding indictment should have defined
the $200,000 consistently across Counts 2, 3, and 4 as public money. No evidence was presented
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to either grand jury that the $200,000 was anything but public money. There was no testimony
about “donated” funds before the first grand jury, and, in fact, the original indictment identified
the $200,000 as “public funds paid by one or more public school districts in the State of New
Jersey.” Vartan Cert., Exh. R pp. 4-5 (emphasis added). The testimony before the second grand
jury was even more explicit:
STATE: When you testified previously you illustrated with the help of S-8,
which I’m going to put on the overhead now, the redirection of
public money from the school seemingly back into the school
through a number of intermediaries. Can you explain to the Grand
Jurors what happened there[?]
STATE: With that $200,000, did the total theft amount in your investigation
come to be about $979,000?
PAGE: Yes. It did.
Vartan Cert., Exh. I p. 31, l. 22 through p. 32, l. 2 (emphasis added); p. 34, ll. 22-24. The state
snuck the “or donated” language into the superseding indictment without putting any evidence
before either grand jury, resulting in a facially and logically inconsistent indictment.
An indictment is “defective” if, as here, it contains “logically inconsistent counts.”
United States v. Conde, 309 F. Supp. 2d 510, 511 (S.D.N.Y. 2003) (dismissing one of two
inconsistent counts) (citing United States v. Cantrell, 612 F.2d 509, 511 (10th Cir. 1980)
(reversing verdict on the ground that indictment charging both transport of stolen goods to
Kansas and receipt of stolen goods in Kansas was inconsistent and unfairly hampered
defendants’ ability to prepare for trial)). Thomas v. United States, 314 F.2d 936 (5th Cir. 1963)
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and Jones v. State, 302 Ga. 730, 808 S.E.2d 655 (2017) are instructive. In Thomas, the Fifth
Circuit partially dismissed a conviction based on an inconsistent indictment in which one count
charged an attempt to smuggle drugs into the United State from Mexico, while another count was
predicated on the defendant having obtained the drugs within the United States. Similarly, in
Jones, the Georgia Supreme Court found a jury verdict “mutually exclusive,” where “[t]o find
[defendant] guilty of theft by bringing the stolen [vehicle] into Georgia, the jury must have
determined that he knew or should have known the [vehicle] was stolen (by him) in another
state. If [defendant] stole or converted the [vehicle] in another state, he could not at the same
time have stolen or converted it in Georgia.” Jones, 302 Ga. At 731, 808 S.E.2d at 657.
In Thomas, the drugs could not have been from Mexico for purposes of one count, and
from the United States for another. In Jones, the vehicle could not have been stolen in Georgia
for purposes of one count, and in another state for a second count. The $200,000 could not have
been public money for purposes of Counts 2 and 4, but private money for purposes of Count 3.
Given the inconsistent counts in the superseding indictment, the Court should have dismissed
Count 3 or, alternatively, narrowed Count 3 to conform with the state’s proofs, i.e., that the
$200,000 was public money. See, e.g., Cantrell, 612 F.2d at 510 (reversing conviction on counts
contrary to government’s apparent theory); United States v. Eason, 434 F. Supp. 1217, 1221
(W.D. La. 1977) (ordering the government to decide which of three counts to pursue); United
States v. Palo, No. 1:16CR23, 2017 WL 6594196, at *3 (W.D. Pa. Dec. 26, 2017) (same).
Originally, the Court did so. The Court’s initial proposed jury instructions defined the
“property” involved in Count 3 as including “$200,000.00 of tuition money paid by various
school districts to the School [f]or Children [with] Hidden Intelligence for the purpose of
educating special needs students from those school districts.” Vartan Cert., Exh. P p. 21
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(emphasis added). Had that definition remained, the superseding indictment would have been
made internally consistent, the jury instructions would have conformed to the state’s trial proofs
(and the two grand jury presentations), and Mr. Eisemann would have been given a fair
opportunity for an acquittal.
There was a second cause for confusion in the jury instructions: the failure of the
instructions to properly explain the interrelation between Counts 3 and 5. Financial facilitation
requires a “first” crime. The superseding indictment identified that crime as theft by unlawful
taking (Count 2), misapplication of entrusted property (Count 4), or misconduct by a corporate
official. See Vartan Cert., Exh. F p. 4. Misconduct by a corporate official itself requires a
predicate crime. The superseding indictment identified that crime as corruption of public
resources (Count 1), theft by unlawful taking, financial facilitation, or misapplication of
entrusted property. See id. p. 7. On Count 3, the jury should have been instructed that to convict
Mr. Eisemann, it would first have to find him guilty of Count 2, Count 4, or Count 5, where the
predicate crime for Count 5 was not financial facilitation. Likewise, on Count 5, the jury should
have been instructed that to convict Mr. Eisemann, it would first have to find him guilty of Count
1, Count 2, Count 4, or Count 3, where the “first” crime was not misconduct by a corporate
official. The Court’s refusal to provide those instructions to the jury was not only contrary to the
law, but created the legally nonsensical verdict that is the subject of this motion: Mr. Eisemann
was convicted of financial facilitation based on misconduct by a corporate official, and convicted
of misconduct by a corporate official based on financial facilitation. The Court must dismiss the
remaining counts of the superseding indictment or, in the alternative, grant a new trial.
Related, following the first jury charge conference, the defense team understood that the
Court would give an instruction on Count 3 similar to Count 5, i.e., that Mr. Eisemann could
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only be convicted of Count 3 if he was first convicted of one or more of the predicate crimes
identified in the superseding indictment. Had the defense team known that the state would later
object to that instruction and the Court agree with the state, Mr. Eisemann would have presented
his defense differently. That alone requires that a new trial be granted.
1. The Confusion in the Jury Instructions Was the Result of the Court’s
Failure to Follow Well-Settled Caselaw.
New Jersey’s financial facilitation statute is modeled after the federal money laundering
statute. See State v. Harris, 373 N.J. Super. 253, 261 (App. Div. 2004) (18 U.S.C. § 1956 is the
“the federal counterpart” upon which “New Jersey’s statute is modeled”); State v. Price, No. A-
2847-06T2, 2011 WL 6030078, at *14 (App. Div. Dec. 6, 2011) (noting that 18 U.S.C. § 1956 is
the federal money laundering statute “upon which New Jersey’s statute was based”). As such,
the New Jersey Supreme Court considers federal caselaw in its interpretation of N.J.S.A. §
2C:21-25. See, e.g., Diorio, 216 N.J. at 623 (reviewing federal decisions as to whether financial
facilitation is a continuing offense); State v. Talafous, No. A-1838-16T1, 2017 WL 2544790, at
*2 (App. Div. June 13, 2017) (relying on federal cases in affirming dismissal of financial
facilitation count).
Ample federal caselaw provides that where an indictment identifies a specific predicate
crime or crimes underlying a money laundering charge, the defendant cannot be found guilty of
money laundering without first being found guilty of one or more of the identified predicate
crimes. See, e.g., United States v. Rahseparian, 231 F.3d 1257, 1267 (10th Cir. 2000) (“The
record thus contains no allegation, evidence, or finding that [defendant’s] money laundering
conviction was based on any unlawful activity other than mail fraud. In view of our conclusion
that the evidence is insufficient to sustain [defendant’s] convictions for mail fraud and
conspiracy to commit mail fraud, his money laundering conviction cannot stand.”); see also
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United States v. Aunspaugh, 792 F.3d 1302, 1310 (11th Cir. 2015) (court reversed money
laundering convictions after conviction for substantive offense was reversed due to erroneous
jury instructions); United States v. D’Alessio, 822 F. Supp. 1134, 1146 (D.N.J. 1993) (“Since
counts one through three have been dismissed, there is no basis upon which to support the money
laundering charges in counts four and five, and therefore, they must be dismissed as well.”);
United States v. Cochran, 109 F.3d 660, 669 (10th Cir. 1997) (reversing convictions for money
laundering where underlying convictions “cannot stand”); United States v. Bala, 489 F.3d 334,
342 (8th Cir. 2007) (reversing money laundering convictions where government “proved no
violation” of “specified unlawful activity”).
The federal decisions make sense: due process and basic notions of constitutional fairness
require that a defendant be informed of the charges against him both so that he can prepare his
defense and be protected from a second prosecution for the same offense. The state may not
have been required to include specific predicate crimes in Count 3, but it did, and must now
abide them. To convict Mr. Eisemann of Count 3, the jury should have been instructed that it
first had to find him guilty of theft by unlawful taking, misapplication of entrusted property, or
misconduct by a corporate official, where the predicate crime for misconduct by a corporate
official was a crime other than financial facilitation. The Court’s refusal to provide that
instruction to the jury created a legally unsupportable verdict, where Mr. Eisemann was acquitted
of the predicate crimes for financial facilitation identified by the state, but convicted of financial
4
facilitation. The jury’s verdict cannot stand. In Rahseparian, the Tenth Circuit reached the
same conclusion, explaining:
4
While misconduct by a corporate official is also a predicate crime, it cannot serve as the predicate crime for a
financial facilitation conviction where financial facilitation is the predicate crime for it.
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[M]ail fraud was the only “unlawful activity” charged in the

indictment, argued by the government, and required by the jury
instructions to support the money laundering counts. Under these
circumstances, as discussed below, [defendant’s] money
laundering conviction must be reversed as well.
…
[T]he government’s theory at trial was that [defendant] knew the
proceeds were from the telemarketing scheme, not from some
unspecified form of felonious conduct. Indeed, the government
argued that [defendant] actually committed and conspired to
commit mail fraud by means of the telemarketing scheme. The
government did not theorize that [defendant] might have known
about some other illegal activity, and presented no evidence that
any other illegal activity had occurred.
Rahseparian, 231 F.3d at 1264-66. The Tenth Circuit’s reasoning applies here. The state’s
“theory at trial” was that Mr. Eisemann stole and misapplied public tuition dollars. Those were
the state’s chosen predicate crimes for Count 3. Having been acquitted of those predicate crimes
by the jury, Mr. Eisemann’s conviction on financial facilitation must be reversed. The Court
must dismiss Count 3 or, in the alternative, grant a new trial.
C. The Superseding Indictment Was Procured through a False Narrative that

the State Repeated to the Jury during the State’s Closing Argument.
At trial, the state alleged that the $200,000 transaction charged in Count 3 was done to
“write-off” a debt that Mr. Eisemann purportedly owed to the Foundation. That was not always
the state’s position. When the case was presented to the first grand jury, Mr. Page testified that
the transaction was completed to “write-off” a debt that Mr. Eisemann owed to the School:
STATE: So we have this $200,000, stop me if I am wrong, it goes from the
school to GZYD and Jonathan Rubin, from there it goes to Gottlieb
and TAZ Apparel, and from there it goes back to Osher Eisemann?
STATE: And from Osher Eisemann’s personal account where does it go?
PAGE: It goes back to the school.
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STATE: Now, is it true that during this time Osher Eisemann owed at least
$200,000 to the foundation?
STATE: And at the end of this transaction, is it accurate to say that the
$200,000 that he owed had been reduced?
PAGE: Yes.
STATE: By $200,000?
PAGE: $200,000.
STATE: Is it also accurate to say though that money wasn’t his?
PAGE: I want to make a correction. The money that Mr. Eisemann owed
was to the school and not the foundation.
STATE: Okay. So Eisemann owes money here, he moves the money and
then when he sends it back here in the last transaction you
described, now the books say he owes $200,000 less?
STATE: When, in fact, this was the school’s money?
PAGE: It was the school’s money.
STATE: Detective, would it be accurate to say that although the school
received the $200,000 that came out of it originally, that there is
still a theft there?
PAGE: Yes. There is.
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STATE: Can you explain why that is[?]
PAGE: Well, because he took the money in order to pay back the money to
the school, he still owed the school the $200,000.
STATE: So is it accurate to say when he takes the $200,000 out, the school
is now owed $400,000?
PAGE: Yes.
STATE: The $200,000 he already owes?
PAGE: And the 200 that he took.
STATE: Then at the end of the day, they are still owed?
PAGE: $200,000.
Vartan Cert., Exh. L p. 22, ll. 6-13; p. 24, ll. 3-24; p. 25, l. 22 through p. 26, l. 13. The $200,000
transaction and the false narrative that Mr. Eisemann owed money to the School featured
prominently in the state’s first press release:
In the money laundering scheme, Eisemann allegedly transferred an additional $200,000

in public tuition funds from SCHI to the fundraising foundation. The stolen funds then
allegedly were transferred through several unrelated entities and individuals, including
TAZ, and ultimately into Eisemann’s personal bank account. Eisemann subsequently
paid the money back to the school from his personal account. Through this scheme,
which was completed in six days, Eisemann allegedly obscured the origin of the money,
so that he could use the school’s own money to create the false appearance that he was
using personal funds from independent sources to repay debts he owed to the school.
Vartan Cert., Exh. M (emphasis added). The press release went uncorrected, and so too did the
grand jury presentation.
In fact, not only was the false testimony before the first grand jury not corrected, it was
repeated to the second. During the state’s presentation to the second grand jury, the state began
by instructing the grand jury that it had “a duty” to “read the testimony or hear the testimony”
from the first presentment because the “evidence [was] relevant and crucial.” Vartan Cert., Exh.
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I p. 8, l. 24 through p. 9, l. 1. The state further instructed the grand jury that “the evidence
presented [to the first grand jury] [was] essential” to its determination. Id. p. 5, ll. 2-4. After
having the second grand jury read that the $200,000 transaction was intended to help Mr.
Eisemann “write-off” a debt that he owed to the School, Mr. Page immediately proceeded to
testify that the same $200,000 was used to “pay off [Mr. Eisemann’s] own debt to the
foundation.” Id. p. 34, ll. 14-15. Mr. Page offered no explanation for the conflicting testimony or
why what the grand jurors had just read said one thing, but he testified to another. Despite Mr.
Page’s revised testimony, the state, perhaps like the second grand jury, was confused and issued
another press release repeating the same false information:
[Mr. Eisemann] also allegedly misappropriated an additional $200,000 in school funds

from undetermined sources which he used in a money laundering scheme intended to
make it appear that he was repaying debts he owed to the school using personal funds.
Vartan Cert., Exh. N (emphasis added). The result of the two grand jury presentations was a
superseding indictment fraudulently returned that should never have been before any jury.
But worse than procuring an indictment by fraud, the state chose to re-introduce the false
“Eisemann owed money to the School” narrative in its closing argument when the defense had
no ability to respond, guaranteeing that the jury’s last impression was a material misimpression.
The state argued:
STATE: What happens next. Well, the money is deposited in Mr.

Eisemann’s bank account and then transferred back to a school
account. Now, this is where it becomes problematic. It’s already
strange, granted, but here is where it becomes problematic. Now,
Mr. Vartan appropriately observed how can there be a theft if the
money was put back.
...
[W]hen it comes back into the school account, how is it accounted
for? $200,000 reduced—Osher 022. 022 should look familiar.
That is the defendant’s personal bank account. That is the entry
that tracks the money involving the defendant
...
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So, what happened here would be the same as if I took a dollar out
of your pocket—rather I owed you a dollar already, and when your
back is turned I took a dollar out of your pocket and gave it to you
and said here’s the dollar I owe you. I gave you the money back,
but I actually owe you two dollars, the dollar that I took from you
out of your pocket and the dollar I already owed you. So, the
money is going back, it’s true, but it’s the school’s own money,
and it’s being used to pay a debt that already existed.
Vartan Cert., Exh. G p. 188, ll. 14-20; p. 189, ll. 5-9; p. 190, ll. 11-21. The state’s summary of
Count 3 was false. It was grand jury redux. Whether through artful deception or a continued and
fundamental misunderstanding of its own case, the state made it appear that the Foundation’s
QuickBooks general ledger account titled “Loan Payable:O. Eise Loan:osher 022” was a School
QuickBooks general ledger loan account, reflecting a loan between Mr. Eisemann and the
School. It was not. The deception continued with the state’s dollar analogy, making it again
appear that Mr. Eisemann owed money to the School. Among the last words that the jury heard
was that Osher Eisemann stole money from the School and tried to repay it with money from the
School; he was thereafter convicted of financial facilitation. And not content to leave only the
jury with a misimpression, the Attorney General felt it necessary to mislead the public as well.
A third press release issued following the trial declaring:
Eisemann misappropriated $200,000 in school funds that he used in a money laundering

scheme designed to make it appear that he used personal funds to repay debts he owed to
SCHI.
Vartan Cert., Exh. O (emphasis added). Either the Attorney General has limited allegiance to the
truth or is incompetent, having issued three separate press releases, each one false. The Court
must dismiss the remaining counts of the superseding indictment or, in the alternative, grant a
new trial.
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CONCLUSION
For the foregoing reasons, Mr. Eisemann’s motion for a judgment of acquittal pursuant to
R. 3:18-2 must be granted, or, in the alternative, Mr. Eisemann’s motion for a new trial on
Counts 3 and 5 pursuant to R. 3:20-1 must be granted.
Respectfully submitted,
CHIESA SHAHINIAN & GIANTOMASI PC

Attorneys for Defendant Osher Eisemann
By: /s/ Lee Vartan

LEE VARTAN
MELISSA F. WERNICK
Dated: March 11, 2019
48
4821-6297-6650.v1

Lakewood SCHI Founder's Post-Verdict Motion For Acquittal

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Lakewood SCHI Founder's Post-Verdict Motion For Acquittal

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MID-17-001661 03/11/2019 4:11:08 PM Pg 1 of 54 Trans ID: CRM2019194823

SUPERIOR COURT OF NEW JERSEY

DEFENDANT OSHER EISEMANN’S BRIEF IN SUPPORT OF MOTION FOR

CHIESA SHAHINIAN & GIANTOMASI PC

TABLE OF AUTHORITIES ............................................................................................. iii

STANDARD OF REVIEW ................................................................................................ 5

POINT I. A JUDGMENT OF ACQUITTAL MUST BE ENTERED................................ 7

A. Mr. Eisemann’s Acquittals on Counts 2 and 4, which

B. Financial Facilitation of Criminal Activity Requires Proof

1. There Was No “First” Crime because the State

2. There Was No “First” Crime because the State

C. Public Dollars Can Be Loaned, and the Specific Loan

D. Financial Facilitation of Criminal Activity Requires Two

E. Financial Facilitation of Criminal Activity Requires Two

F. A Judgment of Acquittal Must Be Entered on Count 5

TABLE OF CONTENTS (cont’d)

POINT II. A MOTION FOR A NEW TRIAL MUST BE GRANTED ........................... 36

A. The Convictions on Counts 3 and 5 Are Against the Weight

B. The Jury Instructions Were Wrong. .......................................................... 37

1. The Confusion in the Jury Instructions Was the

C. The Superseding Indictment Was Procured through a False

Kane v. Hartz Mountain Indus., Inc.,

Meissner v. Aetna Cas. & Sur. Co.,

State v. Van Ness,

Thomas v. United States,

United States v. Aunspaugh,

United States v. Bala,

United States v. Cantrell,

United States v. Cochran,

United States v. Conde,

United States v. D’Alessio,

United States v. Eason,

United States v. Kottwitz,

United States v. Olazabal,

United States v. Palo,

United States v. Rahseparian,

United States v. Wilson,

N.J.S.A. § 2C:21-25 .......................................................................................................................41

both counts. In the alternative, a new trial must be granted.

full, and the School was whole.

facilitation beyond a reasonable doubt.

Foundation and no suggestion that those balances were improper.

Loan:Bauman Loan.” In non-QuickBooks speak, the Foundation’s QuickBooks reflected that

transaction. The Foundation lost nothing.

same $200,000 after the transaction. A judgment of acquittal must be entered.

to wrongly convict on Count 3 and, with that conviction, Count 5.

the alternative, for a new trial on Counts 3 and 5 pursuant to R. 3:20-1.

elements of the offense.”).

A. Mr. Eisemann’s Acquittals on Counts 2 and 4, which Included the $200,000,

verdict, the $200,000 could only be private money.

Eisemann or I deem. Right? No restrictions.

criminal, then there was no crime?

PAGE: That’s correct.

“everyone agrees” with it:

Page testified unequivocally that if private dollars were used, then

there was no crime. He said that multiple times. Private dollars

were used. There was no crime.

COURT: I think—I think everyone agrees with that.

DEFENSE: Okay. So, everybody agree—

COURT: From the evidence that I’ve—

COURT: —and how I have been educated on this issue.

then there was no crime. A judgment of acquittal must be entered.

B. Financial Facilitation of Criminal Activity Requires Proof of Two Crimes,

Diorio, requiring the state to prove beyond a reasonable doubt that:

(1) Osher Eisemann knowingly engaged in a transaction involving property;

was derived from criminal activity; [and]