United States v. Kirsch
903 F.3d 213
2d Cir.2018Background
- Mark N. Kirsch was president of Local 17 (a labor union). A jury convicted him of RICO conspiracy (based on two New York extortion predicate acts) and Hobbs Act extortion conspiracy; post-verdict the district court set aside Hobbs Act predicate convictions for two incidents, leaving only New York-based predicates for RICO and the Amstar-based Hobbs Act conspiracy.
- Alleged conduct: Kirsch promoted a "turn or burn" strategy: pressure and picketing of contractors (OSC and Earth Tech) and property damage (including cutting a fuel line at Amstar) to force hiring of Local 17 workers.
- Pretrial motions: defendants argued Enmons (union-labor exception to Hobbs Act extortion) and later Sekhar (that extorted property must be transferable) required dismissal; the district court denied dismissal as to the New York extortion predicates and Amstar Hobbs Act count.
- At trial co-defendants were acquitted; Kirsch was convicted on RICO conspiracy (Count 1) and Hobbs Act conspiracy (Count 2). The district court later entered acquittal on several Hobbs Act counts but denied judgment on the New York predicate acts; Kirsch moved for new trial based on Elonis-related jury-instruction arguments and for acquittal of Count 2.
- On appeal the Second Circuit (Droney, J.) held: no Enmons-like exception under current New York law; the New York predicate property (wages/benefits) is transferable per Sekhar; New York jury instruction on threats was proper; but the evidence was insufficient to support the Hobbs Act conspiracy (Count 2) as to Amstar/other incidents, so Count 2 reversed, Count 1 affirmed, remanded for resentencing on Count 1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an Enmons-style labor-objective exception shields Kirsch from New York extortion liability | Kirsch: Enmons should bar extortion liability where conduct pursued legitimate union objectives | Government: New York Penal Law (post-1965) lacks Enmons language; it separately addresses labor threats and does not exempt threats of injury or property damage | No Enmons-like exception under current New York law; NY statute proscribes threats of personal injury/property damage and its limited labor exception does not cover violent threats |
| Whether Sekhar's transferability requirement applies to state-law RICO extortion predicates and whether wages/benefits are transferable | Kirsch: Sekhar requires transferable property; alleged property (wages/benefits under labor contracts) not transferable enough for RICO predicate | Government: Sekhar applies to the "generic" extortion definition but wages/benefits are transferable | Sekhar's transferability requirement applies to state-law RICO predicates; wages and benefits are transferable and satisfy Sekhar |
| Sufficiency of evidence for Hobbs Act conspiracy (Count 2) — link between Kirsch and Amstar and whether OSC/EarthTech incidents showed extortion of "unwanted, unnecessary, and superfluous" labor | Kirsch: Government failed to prove his participation/authorization for Amstar; Local 17 workers could have performed OSC/EarthTech work so labor was not "superfluous" | Government: Evidence of "turn or burn," threats, and site vandalism supports conspiracy and shows attempts to impose superfluous labor | Reversed as to Count 2: NLGA and record require clear proof of Kirsch's actual participation/authorization for Amstar—record lacks it; evidence insufficient to show Local 17 labor would have been "unwanted, unnecessary, and superfluous" at OSC/EarthTech |
| Whether jury instructions on mens rea for threats prejudiced conviction (Elonis issue) | Kirsch: district court focused on victim's perception rather than defendant's intent per Elonis; instruction was legally incorrect and prejudicial | Government: Even if Hobbs Act instruction erred, New York extortion instructions (the RICO predicates) correctly focused on fear in the victim and were proper under NY law | No reversible error as to New York extortion instructions; any possible Elonis-based error on Hobbs Act instruction was not prejudicial to the valid New York-based RICO conviction |
Key Cases Cited
- United States v. Enmons, 410 U.S. 396 (1973) (Hobbs Act does not reach force used to achieve legitimate labor objectives)
- Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393 (2003) (RICO "generic" extortion requires "obtaining" property)
- Sekhar v. United States, 570 U.S. 729 (2013) (extorted property must be transferable — acquisition, not merely interference)
- United Brotherhood of Carpenters v. United States, 330 U.S. 395 (1947) (Norris-LaGuardia Act limits union officer liability absent clear proof of participation/authorization)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (discusses "generic" federal definitions in statutory contexts)
- United States v. Gotti, 459 F.3d 296 (2d Cir. 2006) (overt act proof not required for Hobbs Act conspiracy conviction)