United States v. Kirsch

• Decision Date: 16 December 2015
• Docket Number: 07-CR-304S (6)
• Citation: 151 F.Supp.3d 311
• Parties: United States of America, v. Mark N. Kirsch, Defendant.
• Court: U.S. District Court — Western District of New York

151 F.Supp.3d 311

United States of America,

v.Mark N. Kirsch, Defendant.

07-CR-304S (6)

United States District Court, W.D. New York.

Signed December 16, 2015

Anthony M. Bruce, Charles B. Wydysh, Edward H. White, U.S. Attorney's Office, Buffalo, NY, Robert Steven Tully, U.S. Department of Justice/Organized Crime Section, Washington, DC, for Plaintiff.

Rodney O. Personius, Brian Melber, Personius Melber LLP, Buffalo, NY, William E. Grande, Law Office of William E. Grande, Kenmore, NY, for Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY

, United States District Judge

I. INTRODUCTION

Presently before this Court is Defendant Mark N. Kirsch's second Motion for a New Trial brought under Rule 33 of the Federal Rules of Criminal Procedure

. (Docket Nos. 788, 809, 810.) The government opposes Kirsch's motion. (Docket No. 807.) For the reasons discussed below, Kirsch's motion is denied.

II. BACKGROUND

On March 7, 2014, a jury convicted Kirsch of racketeering conspiracy, Hobbs Act conspiracy, and attempted Hobbs Act extortion. Thereafter, on March 31, 2015, this Court acquitted Kirsch of attempted Hobbs Act extortion under Rule 29 of the Federal Rules of Criminal Procedure

. See United States v. Kirsch , No. 07–CR–304S (6), 2015 WL 1472122 (W.D.N.Y. Mar. 31, 2015). This Court's March 31, 2015 decision contains a recitation of the background and procedural history of this case, familiarity with which is presumed. See id.

Kirsch now stands convicted of Counts 1 and 2 of the indictment. Kirsch's conviction on Count 1—racketeering conspiracy in violation of 18 U.S.C. § 1962(d)

—is premised on the jury's finding that Kirsch committed Racketeering Acts 4B and 5B, which charged attempted extortion under NY Penal Law § 155.40(2). See id. at *10. Kirsch's conviction on Count 2—Hobbs Act conspiracy in violation of 18 U.S.C. § 1951(a) —is supported by evidence relating to the attempted Hobbs Act extortion of Amstar Painting. See id. at *6, *10.

At trial, Kirsch requested certain jury instructions relating to “true threats.” First, he requested the following instruction in relation to extortion, which this Court declined to give:

True Threats

Strong language that, if taken literally, may seem to communicate a threat, may not constitute a true threat in the sense of wrongful use of fear for a federal extortion charge. Threatening language which is merely “hyperbole,” or, in other words, which is exaggerated to give heightened effect to a point one is making, in protesting something or trying to persuade someone, with no actual intent to carry it out against a specific individual or property is protected by the First Amendment, and is not a “true threat” under the extortion statute. Only those threats which are so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution may be found to constitute the wrongful use of fear for a charge of extortion.

(Docket No. 426, p. 69.)

Kirsch also requested the following instruction relating to “fear” in the extortion context:

Fear

Your decision whether a person used, or threatened the use, of force, violence or fear, as a result of force or violence, involves a decision about whether the person making the threat truly intended to instill such fear, and whether a reasonable person to whom the “threat” was directed would have experienced such fear under all the circumstances. A threat may be made verbally or by a physical gesture. Whether a statement or physical gesture by the defendant actually was a threat depends upon the surrounding facts.

(Docket No. 577, p. 4.)

Rather than Kirsch's “fear” instruction, this Court gave the standard “Sand” instruction as follows:

As I have just instructed you, you must determine whether a defendant used or threatened to use force, violence, or fear to unlawfully attempt to maintain the property. Fear exists ... if at least one victim experiences anxiety, concern, or worry over expected personal harm or business loss, or over financial or job security resulting from actual or threatened use of physical violence to property. The existence of fear must be determined by the facts existing at the time of the defendant's actions.

Your decision whether a defendant used or threatened fear of injury involves a decision about the victim's state of mind at the time of the defendant's actions. It is obviously impossible to ascertain or prove directly a person's subjective feelings. You cannot look into a person's mind to see what his state of mind is or was. But a careful consideration of the circumstances and evidence should enable you to decide whether fear would reasonably have been the victim's state of mind.

Looking at the situation and the actions of people involved may help you determine what their state of mind was. You can consider this kind of evidence, which is called circumstantial evidence, in deciding whether a defendant attempted to obtain property through the use or threat of fear.

You may also consider the relationship between the defendants and the alleged victim in deciding whether the element of fear exists. However, a friendly relationship between the parties does not mean that you cannot find that fear exists.

Melber Declaration, Docket No. 788, Exhibit C; 3 L. Sand et al., Modern Federal Jury Instructions—Criminal , ¶ 50.02, at Instruction 50–13 (“Fear of Injury” instruction).

On July 7, 2015, Kirsch filed a second Motion for New Trial, arguing that this Court's jury instructions were erroneous under the United States Supreme Court's recent decision in Elonis v. United States . ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015)

. Kirsch maintains that this Court incorrectly instructed the jury to consider only the victim's state of mind with respect to Kirsch's threats—“Your decision whether a defendant used or threatened fear of injury involves a decision about the victim's state of mind at the time of the defendant's actions”—rather than instructing the jury to consider Kirsch's state of mind with respect to those threats, which Kirsch argues is required under Elonis . (Melber Declaration, Docket No. 788, Exhibit C.) The government opposes Kirsch's motion both on timeliness grounds and on the merits.

III. DISCUSSION

A. Timeliness

Under Rule 33 of the Federal Rules of Criminal Procedure

, a motion for a new trial on grounds other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilt. See Fed. R. Crim. P. 33(b). Rule 33, however, is not jurisdictional; the 14-day deadline may therefore be extended under Rule 45 (b)(1) See United States v. Owen , 559 F.3d 82, 83–84 (2d Cir.2009). When a party moves for a new trial after the 14-day deadline has expired, a court may extend the deadline in its discretion upon a finding that the failure to file a timely motion is due to excusable neglect. Fed. R. Crim. P. 45(b)(1)(B) ; Owen , 559 F.3d at 84 (noting that determining timeliness under Rule 45 is an exercise of a district court's “informed discretion”).

The jury returned its verdict in this case on March 7, 2014. (Docket No. 590.) By rule, Kirsch's motion for new trial was due 14 days later, by March 21, 2014. See Fed. R. Crim. P. 33(b)

. But this Court granted Kirsch's request to extend his filing deadline to March 28, 2014. (Docket No. 607.) Kirsch thereafter filed a timely motion for new trial, which, as noted, this Court granted in part and denied in part. (Docket Nos. 610, 760.)

Kirsch filed his second motion for new trial on July 7, 2015, well outside the March 28, 2014 deadline. (Docket No. 788.) But the impetus for Kirsch's motion—the Elonis

decision—was not issued until June 1, 2015.

There is no dispute that a significant intervening change in law constitutes a valid basis to extend time under Rule 45(b)(1)(B)

. See United States v. Sprouse , No. 3:07cr211–2, 2011 WL 2414322, at *1 (W.D.N.C. June 10, 2011) (reversed on other grounds); United States v. Maricle , No. 6:09–16–S–DCR, 2010 WL 3927570, at *3 (E.D.Ky. Oct. 4, 2010). Citing United States v. McConnell , the government nonetheless argues that Kirsch waited too long after the Elonis decision—37 days—to file his second motion for a new trial and should have instead filed his motion within 14 days of the Supreme Court's decision. No. 2:14CR1–009, 2015 WL 2365628 (W.D.Va. May 18, 2015).

In McConnell

, the defendant requested an extension under Rule 45(b)(1)(B) based on an expected significant change in controlling law. Id. at *2–*3. There, the Supreme Court had not yet issued its decision in what the parties and court knew would be an impactful case. Id. In anticipation of the Supreme Court's ruling, the court extended McConnell's deadline to 14 days following the Supreme Court's decision. Id. at *3. McConnell in no way holds, however, that an extension based on a significant intervening change in law is limited to 14 days from the date of issuance.

In any event, the circumstances here are different from those in McConnell

. Unlike McConnell, who knew that the Supreme Court would soon issue a decision that would significantly impact his case, Kirsch apparently knew neither that Elonis was being decided nor that the decision would impact his case. In fact, Kirsch was unaware of the Elonis decision until June 4, 2015, three days after it was decided. (Declaration of Brian M. Melber, Esq. (“Melber Declaration”), Docket No. 809, ¶ 8.) And he did not know whether Elonis would impact his case until concluding a period of research and investigation. (Id. at ¶¶ 8, 10, 11.) McConnell is therefore factually distinguishable, and in any event, as noted, does not limit an extension based on a significant intervening change in law to 14 days from the date of issuance.

Rather, this Court finds that the 37 days Kirsch took to file his second motion for a new trial is both reasonable and justified and constitutes excusable neglect. There are no allegations that Kirsch acted in bad faith or to delay, and accepting...