v.
Kirsch
In the
United States Court of Appeals
For the Second Circuit
August Term, 2017
No. 16‐3329‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
MARK N. KIRSCH
Defendant‐Appellant,
CARL A. LARSON, MICHAEL J. CAGGIANO, JEFFREY C. LENNON, GERALD H. FRANZ, JR., JAMES L. MINTER, III, JEFFREY A. PETERSON, KENNETH EDBAUER, GEORGE DEWALD, MICHAEL J. EDDY, THOMAS FREEDENBERG, GERALD E. BOVE, Defendants.* _______________________ Appeal from the United States District Court for the Western District of New York. No. 07‐cr‐00304 — William M. Skretny, Judge.
The Clerk of Court is directed to amend the caption as set forth above. *
ARGUED: SEPTEMBER 25, 2017
DECIDED: SEPTEMBER 12, 2018
Before: LOHIER and DRONEY, Circuit Judges, and RAKOFF, District Judge.** Appeal from a judgment of conviction of the United States District Court for the Western District of New York (Skretny, J.). Mark N. Kirsch, a union local president, was convicted of racketeering conspiracy and Hobbs Act extortion conspiracy for his efforts to force non‐union contractors to hire union members. On appeal, Kirsch contends that: (1) the Enmons exception to the Hobbs Act for the pursuit of lawful union objectives applies, requiring reversal of his Hobbs Act conspiracy conviction; (2) an Enmons‐like exception exists with respect to New York Penal Law extortion, requiring reversal of his racketeering conviction based on state law predicate acts; (3) the wages that he was convicted of attempting to extort are not “property” capable of being extorted, requiring reversal of both convictions; (4) his Hobbs Act conspiracy conviction must be reversed because the Government failed to prove his involvement in the charged conspiracy; and (5) the district court erred in instructing the jury as to the required mental state for threats. We conclude that (1) an Enmons‐like exception does not apply to New York Penal Law extortion; (2) the wages Kirsch attempted to extort were “property” capable of being extorted; (3) the district court’s threat instruction was correct with respect to New York Penal Law extortion; but (4) the Government failed to prove Kirsch’s involvement in the charged Hobbs Act conspiracy. Accordingly, we REVERSE the count of
Judge Jed. S. Rakoff, United States District Court for the Southern District of New **
York, sitting by designation.
2
conviction for Hobbs Act conspiracy, AFFIRM the count of conviction for racketeering conspiracy, and REMAND for resentencing. MONICA J. RICHARDS, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee. BRIAN M. MELBER, Personius Melber LLP, Buffalo, NY, for Defendant‐ Appellant.
DRONEY, Circuit Judge:
In 2016, Appellant Mark N. Kirsch was convicted of Hobbs Act extortion conspiracy and racketeering conspiracy based on predicate acts of New York Penal Law extortion violations. The jury concluded that Kirsch, the president of the local chapter of a labor union, used threats of violence and destruction of property in an attempt to force contractors to hire members of his union.
On appeal, Kirsch argues that United States v. Enmons, 410 U.S.
396 (1973), shields him from Hobbs Act liability, requiring that his
Hobbs Act conspiracy conviction be reversed. In Enmons, the
Supreme Court held that a union official could not be convicted of
Hobbs Act extortion if the official’s conduct was undertaken in pursuit of “legitimate union objectives.” Id. at 400. With respect to the racketeering conspiracy conviction, Kirsch contends that an Enmons‐ like exception exists under New York law that shields him from New
York Penal Law extortion liability, also requiring the reversal of that count of conviction. He also maintains that (1) the property he was charged with extorting—wages and benefits for union members— was not “transferable,” as required by Sekhar v. United States, 570 U.S.
729 (2013); (2) the Government presented insufficient evidence of his involvement in the charged Hobbs Act conspiracy; and (3) the district court’s instructions regarding the required mental state for threats for the extortion charges were incorrect.
We hold that (1) under New York Penal Law, there is no
Enmons‐like exception for extortion committed in pursuit of a legitimate labor objective; (2) the property Kirsch was convicted of extorting was “transferable” as required by Sekhar; (3) the district court’s instructions with respect to extortion under the New York
Penal Law were correct; but (4) the Government presented insufficient evidence of Kirsch’s involvement in the charged Hobbs
Act conspiracy. Because we hold that the government presented insufficient evidence to support the Hobbs Act conviction, we need not reach Kirsch’s argument that Enmons shields him from Hobbs Act liability. As a result, Kirsch’s conviction for racketeering conspiracy is affirmed, and his conviction for Hobbs Act extortion conspiracy is reversed.
BACKGROUND
Kirsch was the president and business manager of the
International Union of Operating Engineers – Local 17 (“Local 17”) from 1997 to 2008. Local 17 operated in the Buffalo, New York area.
At trial, the government presented evidence that Kirsch instructed
Local 17 members to “turn or burn” contractors who did not employ them, meaning that non‐union contractors would have to hire Local
17 members (“turn”) or the union would obstruct their work (“burn”).
Union members, at the direction of Kirsch, picketed and blocked construction sites, threatened construction managers, tampered with equipment, and destroyed property.
Kirsch was charged with multiple counts of unlawful conduct with respect to numerous contractors. However, after the jury’s verdict and his motion for judgment of acquittal was granted in part,
Kirsch remains convicted only of Racketeering Conspiracy (18 U.S.C.
§ 1962(d)) under Count 1 for his role in attempting to extort two contractors—Ontario Specialty Contracting (“OSC”) and Earth
Tech—and Hobbs Act extortion conspiracy (18 U.S.C. § 1951(a)) under Count 2 with respect to conduct directed at a third contractor,
Amstar Painting (“Amstar”).1 Accordingly, we limit our review to