Motion to Extend Time, For Judgement Notwithstanding the Verdict, For a New Trial, and to Stay...

7/31/2019 Motion to Extend Time, For Judgement Notwithstanding the Verdict, For a New Trial, and to Stay Sentence Pendin

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STATE OF NEW HAMPSHIRE

HILLSBOROUGH, ss: SUPERIOR COURT NORTH

Case No.: 216-2011-CR-01055

State of New Hampshire

V.

Adam Mueller

-.Un.^-..

MOTION TO EXTEND TIME,

FOR TUDGMENT NOTWITHSTANDING THE VERDICT.

FOR A NEW TRIAL. AND TO STAY SENTENCE PENDING APPEAL

Adam Mueller moves the Court to set aside the jury verdict because the State failed to

prove an essential element of felony wiretapping, and he further asks for leave to extend the

time for filing this motion pttrSlitnttOStiperior Court Rule 105. Adam further states that:

A. Adam's Motion to Set Aside the Jury's Verdict Should Be Extended ForCause Because He Has Been Incarcerated; Unable to Access Resources to

Understand His Post-Trial Procedural Obligations; and Has Just RecentlyObtained New Counsel.

1. Adam defended himself/>ro se at trial held on August 13,2012.

2. Adam was found guilty. Since the verdict, Adam has been incarcerated and

denied access to the means to organize or file post-trial motions.

3. Adam has meritorious arguments to raise post-trial; most notably that no

reasonable jury could find Adam guilty of RSA 570-A:2,1 because the State

failed to prove an essential element of the offense (described in Section B).

4. Extending the time for filing rests with the discretion of this court.

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5. Because Adam has been incarcerated; deprived of access to legal resources; has

only recently obtained counsel; and has meritorious post-trial arguments in his

defense, and the State has suffered no prejudice, Adam asks this court to find

"cause" under Superior Court Rule 105 for a an extension to file this motion to

set aside the jury's verdict.^

B. As a Matter of Law, No Reasonable Jury Could Find Adam Gmlty ofFelony Wiretappmg because Adam was a Party to the Alleged InterceptedCommunications. The Jury's Verdict Must Be Set Aside.

6. " [0]n a motion for JNOV, where the trial court applies the sufficiency

standard, the trial court 'uphold[s] the jury's verdict unless no rational trier of

fact could find guilt beyond a reasonable doubt, considering all the evidence

and all reasonable inferences therefi-om in the light most favorable to the

State.'" State v. Spinale, 156 N.H. 456,463 (2007).

7. Adam was charged with and convicted of three counts of felony wiretapping, in

violation of RSA 570-A:2,1. That statute provides that:

"A person is guilty of a class B felony if, except asotherwise specifically provided in this chapter or

without the consent of all parties to the communication,the person (a) willfully intercepts ...."

RSA 570-A:2,1 (emphasis added).

8. However, as otherwise explicitly provided, the very next section, RSA 570-A:2,

I-a provides for only class B misdemeanor penalties if a person intercepts a

___________^Cdmimmication "when the person is a party to the conununication or with the1 c.f State V. Houle, 120 N.H. 160 (1980), declining to extend the time for filing after a more than 8-month

delay.

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prior consent of one of the parties to the communication-----" RSA 570-A:2,1-

a (emphasis added).

9. To convict Adam under RS 570-A:2,1, the State was required to prove that

Adam was not a party to the communications the State claims were

intercepted.

10. However, at trial, the State readily admitted that Adam was a consenting party

to each and every recorded communication the State complained of. The State

never disputed this fact, never attempted to demonstrate that Adam was not a

party to the offered communications, and introduced its own video evidence

clearly showing that Adam was a consenting party to the communications.

11. Because Adam was a consenting party, there are no circumstances in which

Adam could have committed^/ltwy wiretapping as described by RSA 570-A: 2,

I, because the plain language of RSA 570-A:2 specifically excepts Adam's

conduct fi-om the felony-level offense.

12. Even in the light most favorable to the State, no reasonable jury could find that

Adam was not a party to the communications, and no reasonable jury could

convict Adam of felony wiretapping under RSA 570-A:2,1. Accordingly, the

jury's verdict must be set aside.

C. The Jury Was Not Instructed on All Elements of the Felony WiretappingOffense; The Jury's Verdict Must Be Set Reversed.

13. A person cannot be convicted of RSA 570-A:2,1 if that person was a party to a

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communication because RSA 570-A: 2,1-a explicitly provides for a lesser

offense. Accordingly, a required element of felony wiretapping under RSA 570-

A:2,1 is that the accused was not a party to the communication.

14. The jury was not instructed on this critical element of felony wiretapping.

15. "If there is no verdict on the element of a crime, it is not possible to conclude

that the error did not affect the verdict..." State v. Kousounadis, 156 N.H. 413,

428 (2009), quoting United States v. Neder, 527 U.S. 1,32-33 (Scalia, J.,

dissenting), "failure to prove one [element], no less than failure to prove all,

utterly prevents conviction."

16. Indeed, the New Hampshire Supreme Court has affirmed that "under our

State Constitution, a jury instruction that omits an element of the offense

charged is an error that partially or completely den[iesj a defendant the right to

the basic trial process." Kousounadis at 429, reversing a defendant's felony

criminal threatening conviction.

17. Because the jury was not instructed on the not-a-party element of the felony

wiretapping charge (i.e. that the jury must find that Adam was not a party to

the communications) Adam's conviction must be reversed.

D. The State Produced Insufficient Evidence to Show that Adam was Not A

Party to the Communications. The Verdict Must Be Set Aside.

18. The State failed to produce evidence that Adam was not a party to the

communications. (Actually, it produced evidence that he was.)

19. Insufficiency of the evidence claims rise to the level of plain error where an

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element of the offense has not been proven. State v. Guay, 162 N.H. 375,381

(2011).

20. Because the State provided insufficient evidence on the non-party element of

the felony offensethe entire element being omitted from the State's case

the jury's verdict must be set aside for insufficient evidence.

As a Matter of Law, Adam Did Not "Intercept" a "Telecommunication";The Jury Verdict Should Be Set Aside.

21. RSA 570-A forbids the aural acquisition of a transfer of information through a

communications common carrier.

22. As the Supreme Court of this State commented in State v. Sheedy, on

remanding a felony wiretapping case for a new trial,

"Since this case is remanded for a new trial, we note,

without deciding, that it is not clear whether these facts

even give rise to an "interception" within the meaning of

RSA 570-A:2,1(a) (Supp.1983). A number of other courtshave held, based on similar facts, that there was not an

interception under the applicable statute as a matter of law.

See Goldman v. United States, 316 U.S. 129,134,62 S.Ct.

993,995, 86 L.Ed. 1322 (1942) ("As has rightly been held,

[interception] indicates the taking or seizure by the way or

before arrival at the destined place. It does not ordinarily

connote the obtaining of what is to be sent before, or at the

moment, it leaves the possession of the proposed sender,or after, or at the moment, it comes into the possession of

the intended receiver.") [string citation omitted]."

State V. Sheedy, 125 N.H. 108,111-112 (1984).

23. Accordingly, Adam asks this Court to adopt the legal reasoning of the U.S.

Supreme Court and the suggestive dkta of the New Hampshire Supreme

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Court and to hold, as a matter of law, that Adam did not "intercept" a

telecommunication because any recording was done after Adam received the

communication and the communication's information was recorded by non-

telecommunication means.

F. Adam Had A Constitutional Right to Record Any TelephoneConversations with Public Officials Conunenting on Public Matters.

24. The State complained that Adam's conversations with three government

employees were recorded.

25. N.H. Const., Pt. I, Art. 8 provides that:

"All power residing originally in, and being derived from,

the people, aU the magistrates and officers of

government are their substitutes and agents, and at all

times accountable to them. Government, therefore,

should be open, accessible, accountable and

responsive___" (emphasis added).

26. In this case, Adam has attemptedwhether wisely or notto hold

government officials publicly accountable regarding an incident in a

Manchester public school in which a police officer was alleged to have

assaulted a minor child.

27. It is unconstitutional to allow pubKc employees to convert a privacy shield for

citizens, RSA 570-A generally, into a sword with which to attack citizen

journalists for recording statements those public employees made while they

were on the job and voluntarily interacting with the public. Where private

employees can be lawfully monitored by their employers, there are no special

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grounds to grant public employees special privacy privileges while handling

pubUc matters. While knowingly interacting with the public, on the job means

on the record.

28. Not only does this retaliatory prosecution infringe on the accountability

requirements of Pt. I, Art. 8, this retaUatory prosecution by government

employees chills citizen-joumahsts' rights to free speech and press as

guaranteed by N.H. Const., Pt. I, Art. 22 and U.S. Const, Amend.

I. Indeed, the State expressly argued at trial that Adam's prosecution was

necessary to deter the conduct of others. The conviction should be reversed.

G. Deprivation of Due Process by Unreasonably Restricted Access to LegalMaterials

29. The Due Process clause of the U.S. Constitution requires that incarcerated

persons be afforded reasonable access to legal materials.

30. Adam was incarcerated for some time prior to trial, and in that time he was

completely deprived of his requests to access a law library. Adam alleges that

his written requests were thrown in the trash by corrections officers.

31. Because Adam was denied access to these materials, he was deprived of a

procedural opportunity to present an affirmative defense, described in Section

H, by requesting that the court "explain to the jury, in clear and inteUigible

language, the rules of law applicable to the case."^

2 See Kousounadis at 422, quoting State v. McMillan, 158 N.H. 753 (2009): "[The N.H. Supreme Court]determine[s] whether the jury instructions adequately and accurately explain each element of the offense andreverse only if the instructions did not fairly cover the issues of law in the case."

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H. Error in Failing to Instruct the Jury Regarding Affirmative Defense

32. The New Hampshire Supreme Court has recognized that the affirmative

defense of ignorance, RSA 626:3, applies to a felony wiretapping charged under

RSA 570-A:2,1. State v. Sheedy, 125 N.H. 108 (1984).

33. AppUcation of RSA 626:3 would have relieved Adam of criminal responsibihty

as a matter of law if he acted under a mistaken beUef resulting from a statement

of law in a state or federal judicial opinion.

34. At trial, Adam commented that he did not think what he did was wrong-

exactly because he was relying on the recent First Circuit opinion of Glik v.

Cunniff, 655 F.3d 78 (1st Cir. 2011), overturning the baseless conviction of an

attorney wrongly convicted for publicly recording a police officer under a

comparable Massachusetts' wiretapping statute.

35. But the State argued that Adam's beliefs about the law did not matter. But that

was plainly wrong, as expressed in both New Hampshire statute and state

judicial opinion.

36. Whether Adam ultimately believed he was doing no criminal wrong because of

the Glik opinion was ultimately a question of fact for the jury to decide.

37. If Adam had access to legal resources and were able to investigate his statutory

defenses and the jury were instructed as to the applicable law, a reasonable jury

might have found Adam not guilty.

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38. Because Adam was effectively deprived of this procedural opportunity

though he raised the substantive issuethe jury's verdict should be set aside

and a new trial should be ordered, in whole or in part.

I. Stay of Remaining Sentence Pending Appeal

39. Adam expects to file an appeal before the end of 30-day appeal period to

vindicate his rights, particularly under the explicit exceptions to the felony

wiretapping statute.

40. However, by the time such appeal is heard, Adam's sentence will have run,

rendering the appeal from his conviction moot, while only placing great civil

liability on the City of Manchester if Adam succeeds.

41. Because Adam is no danger to the public, he respectfully asks this his

remaining sentence be stayed while an appeal is pending. Adam has agreed and

will execute such guaranties and acknowledgements as the Court deems

necessary to satisfy the Court that he will surrender himself if he does not

prevail on appeal.

Conclusion

WHEREFORE, Adam Mueller asks that this Court extend the time for filing a post-

trial motion under Superior Court Rule 105 to August 24, 2012 and to provide the following

post-trial relief:

A. Set aside or reverse the jury's verdict;

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B. Dismiss all three felony charges with prejudice as defective for failing to

charge a necessary element of the offense defined by RSA 570-A:2,1;

C. Vacate Adam's conviction and order his release fi-om State custody;

D. Alternatively, order a new trial in whole or in part;

E. Stay Adam's remaining sentence while he appeals his case to the New

Hampshire Supreme Court;

F. provide for any other reUef as is just or equitable.

Respectfully submitted,

Adam Mueller

By hjs attorney.

Date: August 23,2012 n

kr #19881

Law Offiqeof BrandonjpU^s, PLLC22 Bridge StreetTSuiteS Phone: (603) 369-6465 \Fax: (603) 369-6466 ^-'Email: [email protected]

CERTIFICATE OF SERVICE

I, Brandon D. Ross, certify that on August 23, 2012,1 mailed a copy of thisAppearance by USPS first-class mail to the individual listed below:

Michael Valentine, Esq.

Hillsborough County Attorney's Ofljee"300 Chestnut Street ("'

Manchester, NH 03101 ^

t Branao

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