United States v. Kirsch, 151 F. Supp. 3d 311

Background

Mark N. Kirsch was convicted by a jury of racketeering conspiracy (Count 1) and Hobbs Act conspiracy (Count 2); one attempted Hobbs Act extortion conviction was later acquitted under Rule 29.
The racketeering conviction rested on two predicate acts (attempted extortion under N.Y. Penal Law § 155.40(2)); the Hobbs Act count involved attempted extortion of Amstar Painting under 18 U.S.C. § 1951.
At trial Kirsch requested instructions emphasizing the defendant’s mental state for “true threats” and an instruction on whether the defendant intended to instill fear; the court instead gave the standard Sand instruction focusing on the victim’s state of mind.
After the Supreme Court decided Elonis v. United States, Kirsch moved (outside the original Rule 33 deadline but within an extended period the court found excusable) for a new trial, arguing the jury instructions were erroneous under Elonis.
The government argued Elonis is limited to 18 U.S.C. § 875(c) and does not alter mens rea requirements for the extortion statutes at issue here.
The district court held that Elonis does not control because the extortion statutes at issue already contain sufficient mens rea requirements (state larceny/extortion and the Hobbs Act) and therefore denied Kirsch’s second Rule 33 motion for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kirsch's Rule 33 motion is timely	Kirsch argued Elonis created a change in law justifying extension of Rule 33 filing deadline	Government argued motion was untimely and should have been filed within 14 days of Elonis	Court found 37-day delay excusable neglect under Rule 45 and denied timeliness objection
Whether jury instructions were erroneous under Elonis	Kirsch argued Elonis requires proof of defendant’s mens rea (intent to communicate a threat) for extortion-related threats	Government argued Elonis applies only to § 875(c); extortion statutes here already require guilty mind or more culpable mental state	Court held Elonis is limited to § 875(c); extortion statutes here include mens rea and instructions were not erroneous
Whether negligence standard was erroneously applied	Kirsch contended the instruction effectively allowed conviction on a negligence standard (victim-focused reasonable person test)	Government maintained instructions required more than negligence because statutes demand specific or general intent as applicable	Court concluded instructions did not impose mere negligence standard and were legally sufficient
Whether a new trial is warranted under Rule 33	Kirsch claimed manifest injustice because jury was not instructed to consider his state of mind as required by Elonis	Government argued no extraordinary circumstances—statutes and instructions were adequate—so no new trial warranted	Court denied Rule 33 motion, finding no error or prejudice requiring a new trial

Key Cases Cited

Elonis v. United States, 135 S. Ct. 2001 (2015) (Supreme Court held § 875(c) requires a mens rea related to the threatening nature of a communication; negligence insufficient)
X-Citement Video, Inc. v. United States, 513 U.S. 64 (1994) (court may read mens rea into silent federal statutes to avoid criminalizing innocent conduct)
Carter v. United States, 530 U.S. 255 (2000) (interpretation of mens rea to separate wrongful from otherwise innocent conduct)
Morissette v. United States, 342 U.S. 246 (1952) (criminal wrongdoing generally requires a guilty mind)
Victor v. Nebraska, 511 U.S. 1 (1994) (jury instructions are legally sufficient if, taken as a whole, they correctly convey the law)
Ferguson v. United States, 246 F.3d 129 (2d Cir. 2001) (Rule 33 new-trial relief is extraordinary and must be exercised sparingly)
Sanchez v. United States, 969 F.2d 1409 (2d Cir. 1992) (conviction must be supported by competent, satisfactory, and sufficient evidence for denial of a Rule 33 motion)
Quinones v. United States, 511 F.3d 289 (2d Cir. 2007) (defendant challenging jury instructions must show error and prejudice)
Sabhnani v. United States, 599 F.3d 215 (2d Cir. 2010) (jury instruction adequacy reviewed as a whole)
Gansman v. United States, 657 F.3d 85 (2d Cir. 2011) (no particular wording required so long as instruction as a whole correctly states law)