U.S. v. Kirsh

• Decision Date: 17 May 1995
• Docket Number: Nos. 4,644,D,643,645,s. 4
• Citation: 54 F.3d 1062
• Parties: UNITED STATES of America, Appellee, v. Mara KIRSH & Joseph Kirsh, Defendants-Appellants. ockets 93-1471, 93-1568, 93-1850, 93-1851.
• Court: U.S. Court of Appeals — Second Circuit

Page 1062

54 F.3d 1062

UNITED STATES of America, Appellee, v. Mara KIRSH & Joseph Kirsh, Defendants-Appellants.

Nos. 4, 643, 644, 645, Dockets 93-1471, 93-1568, 93-1850, 93-1851.

United States Court of Appeals Second Circuit.

Argued Jan. 9, 1995.

Decided May 17, 1995.

Roland G. Riopelle, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for the S.D. of N.Y., Alexandra Rebay, Asst. U.S. Atty., New York City, on the brief), for appellee.

William A. Gerard, Palisades, NY (A. Lawrence Washburn, Jr., New York City, on the brief), for defendant-appellant Mara Kirsh.

Richard P. Caro, Eugene, OR, for defendant-appellant Joseph Kirsh.

Before: KEARSE, McLAUGHLIN, and PARKER, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Joseph and Mara Kirsh, husband and wife, appeal from judgments entered in the United States District Court for the Southern District of New York, following a jury trial before Kevin Thomas Duffy, Judge, convicting them of sending threatening communications through the mail, in violation of 18 U.S.C. Sec. 876 (1988), of conspiring to do so, in violation of 18 U.S.C. Sec. 371 (1988), and, as convicted felons, of possessing firearms, in violation of 18 U.S.C. Sec. 922(g)(1) (1988). Joseph and Mara were sentenced principally to 87 months' and 63 months' imprisonment, respectively. On appeal, they contend principally that the admission at trial of statements made by Mara violated her rights under the Fifth Amendment and Joseph's rights under the Sixth Amendment. They also make numerous other challenges to their convictions and their sentences. For the reasons below, we affirm the judgments.

I. BACKGROUND

Taken in the light most favorable to the government, the evidence at trial showed the following. Joseph and Mara Kirsh owned an apartment building at 239 Elizabeth Street in Manhattan. In 1988, after litigation with their tenants and the City of New York, the Kirshes were ordered to cease management of the building and not to enter it, on penalty In March 1992, agents of the Federal Bureau of Investigation ("FBI") obtained and executed an arrest warrant for Joseph and a search warrant for defendants' apartment. Among the items seized were 27 typewriters, including a Royal and a Smith Corona; a typewriter ribbon from the Smith Corona; white, legal-size Eaton Corrasable Bond paper; an address book containing the names and addresses of some of the individuals to whom the threatening letters were addressed; a typewritten list of the typewriters found in the apartment; and two rifles. Defendants were indicted on the charges described above, and most of the seized items were admitted in evidence at their trial.

                of contempt.  Between November 1990 and February 1992, numerous threatening and harassing letters were mailed from New York City to various persons throughout the United States.  The letters contained statements such as "I'm gonna blow you away," "[I]'ll blow your heads off," and "I will kill the fucking lot of you."   All of the threatening letters were connected in some way to the Elizabeth Street block on which the Kirshes' building was located--they were either addressed to someone who lived or worked on that block, or they listed such a person as the return addressee
                

The government also introduced into evidence 18 threatening letters, some of which had been written on white, legal-size Eaton Corrasable Bond paper, and 25 envelopes in which threatening letters had been sent. An FBI document examiner who had examined 122 such letters, testified that most of the letters and envelopes had been typed on a single Royal typewriter and that a number of the others had been typed on a Smith Corona. He testified that the Smith Corona typewriter ribbon seized from the Kirshes' apartment had been used to type the names, addresses, and return addresses on five of the envelopes. Further, the list of typewriters found in defendants' apartment shared certain characteristics with some of the threatening letters; in the list and in those letters, the letter "I" was used for the numeral "1".

One of the envelopes introduced bore the name "Mr. Joseph A. Kirsh" as the sender. In addition, a fingerprint expert testified that two of the letters and 12 of the envelopes bore Joseph's fingerprints. FBI Special Agent James Lazarski, who had participated in the search of defendants' apartment, testified that immediately after the search, Mara told him that she had helped type and compose the letters. (See Part II.A. below.)

The government also introduced the two rifles seized from the Kirshes' apartment, along with evidence that Joseph had purchased one of the rifles from a local gun collector in the fall of 1991 and subsequently asked whether the seller could supply ammunition. The parties stipulated that both Joseph and Mara had previously been convicted of felonies.

Joseph and Mara claimed that they had not written the letters. They contended that they had been framed, that the fingerprints found on the letters and envelopes were not Joseph's but were forged, and that Mara's statements to Lazarski after the search pertained not to threatening letters but to other letters that she and Joseph had written.

The jury convicted the Kirshes on all counts. They were sentenced as indicated above, and these appeals followed.

II. DISCUSSION

A. Mara's Statements to Lazarski

The most substantial contentions on appeal center on Mara's statements to Lazarski that she and Joseph had composed the threatening letters, that she had typed them, and that Joseph had sent them. Mara contends that the failure to suppress these statements violated her Fifth Amendment rights; Joseph contends that the admission of Mara's hearsay implication of him violated his Sixth Amendment right of confrontation. Only Joseph's confrontation argument is troublesome, but we conclude that the error was harmless.

1. Mara's Fifth Amendment Claims

Mara contends principally that the district court should have granted her motion to suppress her statements on the grounds that she was questioned in the absence of counsel and had not been advised of her Miranda Miranda warnings are not required unless law enforcement agents interrogate a person who is in custody. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); United States v. Mitchell, 966 F.2d 92, 98 (2d Cir.1992). The test used in determining whether a defendant was in custody is an objective one that (a) asks whether a reasonable person would have understood herself to be "subjected to restraints comparable to those associated with a formal arrest," and (b) "focuses upon the presence or absence of affirmative indications that the defendant was not free to leave." Id. (internal quotes omitted). An accused is in custody when, even "in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave." Campaneria v. Reid, 891 F.2d 1014, 1021 n. 1 (2d Cir.1989), cert. denied, 499 U.S. 949, 111 S.Ct. 1419, 113 L.Ed.2d 471 (1991); see, e.g., United States v. Uribe-Velasco, 930 F.2d 1029, 1033 (2d Cir.1991) (custody established where, inter alia, officer approached defendant from behind, identified himself and others as police officers, told defendant not to move, and kept his hand on defendant's back while questioning him, and eight other agents arrived on the run and positioned themselves all around with their guns drawn); United States v. Morales, 834 F.2d 35, 38 (2d Cir.1987) (a custodial setting is evidenced by "inherently coercive pressures that tend to undermine the individual's will to resist and to compel him to speak").

rights. Because Mara failed to establish that when she made the statements she was in custody or that she had invoked her right not to be questioned except in the presence of counsel, her motion was properly denied.

"[A]fter a motion to suppress a confession has been denied, the evidence must be viewed in the light most favorable to the government." United States v. Caba, 955 F.2d 182, 185 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 130, 121 L.Ed.2d 84 (1992). The district court's factual findings in connection with its custody determination must be upheld unless clearly erroneous. See, e.g., United States v. Mitchell, 966 F.2d at 98; see also United States v. Montilla, 928 F.2d 583, 588-89 (2d Cir.1991).

At the hearing on Mara's suppression motion, Lazarski testified that the search of the Kirshes' apartment began early in the morning on March 26, 1992, when eight agents entered with guns drawn. Joseph and Mara were taken outside into the hall, where Joseph was handcuffed and arrested. Mara was not handcuffed or placed under arrest at that time. She was not permitted to enter the apartment during the execution of the search warrant, but she "was advised that she could leave if she liked and she could stay, if she liked." (Suppression Hearing Transcript, June 21, 1993 ("Supp.Tr."), at 41.) Though Mara was still in pajamas and did not ask to change into street clothes, "[s]he was walking up and down the corridor, went to the restroom, and left the floor at least on one occasion." (Id. at 66.)

After the mid-morning completion of the search, Mara signed an inventory of the items seized from the apartment and was asked some background questions. Lazarski testified that she was also asked "whether she had any knowledge or information concerning threatening letters sent by her husband, Joseph Kirsh, and she responded that she had typed the letters and that she had helped Joseph Kirsh compose the letters." (Supp.Tr. at 35; see also id. at 67 ("I asked Mara Kirsh if she knew anything about the threatening letters sent out by her husband, Joseph Kirsh.").) These questions were asked and answered when Mara and Lazarski were standing in the hallway; his gun was not drawn, and she was not handcuffed. Lazarski testified that after Mara said s...